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SAN    FRANCISCO    LAW   JOURNAL; 
Vol,.    C.      No.    102. 


Act  Abolishing  Writs  or  Er- 
ror in  Federal  Courts 
Amended   by   Congress. 


Act  Abolishing  Writs  of  Error  in 

Federal  Courts  Amended  by  Congress! 

President    Signs    Measure    Designed    to    Clear    Up    ConfuJ 

sion  as  Result  of  the  Enactment  of  Act 

of  January  31,   1928. 

By  PAUL  P.  O'BRIEN,  Clerk  U.  S.  Circuit  Court  of  Appeals. 

receivership  or  to  take  appropfiat| 
steps,  to  accomplish  the  purpose  there 
of,    such    as    th"    directing    a    sale    d 


11.  K.  };ill  12441,  amending  Seelion 
i  of  iin  Act  entitled  "An  Act  in  refer- 
ence to  Write  of  Error,"  approved 
January  ?A.  1928,  passed  the  Houses  on 
April  2d.  the  Senate  on  April  20.  1928, 
and  was  approved  by  the  President  on 
April  26th.     It  is  effective  forthwith. 

The  measure  is  designed  to  clear  up 
any    confusion    that    hr.s    ari.sen    as    a 
alt  of  the   ena<  I  nent  cf  the   Act  of 
January    31.    1928. 

The   Act,   as  amended,   follows: 

Be  it  enacted*  etc.,  That  the 
wiii  of  error  in  eases,  civil  ami 
criminal,  is  abolished.  All  reliel 
which  here!  ofore  could  be  obtained 
by  writ  of  error  shall  hereafter  I"' 
obtained  by  appeal. 

See.  _'.  The  statutes  regulating 
the  right  to  -i  writ  of  error,  defin- 
ing   thi     n  !i"T    which    may    b  ■    had 

l,   and    prescribing   the    mode 

Of  eyercisins  thai  rivh'  and  of 
invoking  such  re'ief,  including  (lie 
provisions  relating  to  costs,  super- 
sedeas and    mandate,   shall    he   ap- 

]  licabl  ;      in      I  'a-     appeal      Which      1  le; 

preceding  section  substitutes  for 
a    writ    of   ei  ror. 

The  procedure  of  giving  notice  of 
appeal  and  having  bond  approved  does 
a. a  meet  statute  requirements  for  it 
will  P.-  >  >en  i  hat,  as  now  amended, 
the  Ad  requires  all  of  the  o!d  steps. 
the    only    effect    being    to    call    the    re- 


F  I 


view  an  appeal  rather  than  a  writ  of 
error. 

Tile      Old      piaeliee      of      petitioning      for 

an  appeal,  obtaining  an  order  allow- 
ing appeal  and  fixing  amount  "f  honil. 
and/or  supersedeas,  aiiproval  of 
the  bond  b>  llie  judge  who  allowe.l  the 
appeal,  issuance  of  citation  on  appeal 
and     filing'    of    ii  -sigmu  ail      of     ei  i 

j  mUsI      lie      I'nllon  e(|. 

'I'lie  iM-i-  ity  for  the  preservation 
■  ol'    the    record    in     the    trial    court     by 

noting  specific  objections  and  excep- 
:  i  Pais,  request  for  lindings  of  fad  ami 
[conclusions  of  law.  preparation  and 
I  setth 'ii.'  iP  of  bill  of  exceptions  and 
['statement    of  evidence   is   not    changed 

by   the   recent    enactment. 

[Outline  of  the  Time  Limits  and  Steps 
to  Be  Taken  in  Connection  With  Ob- 
taining the  Allowance  of  an  Appeal 
to  the  United  States  Circuit  Court 
of   Appeals. 

i      I.     Time. 

ia)     In    all    '  "i  her    i  ha  ii    those 

In  I  ''in'  II  i   i        [  |,e.   ilieil.        I  luce        months 

from    entr.v    of    judgment    or    1 1.  .  i 

1 1. 1  ,\  i"  e  1 1  from  ••  n  interlocutory 
order  or  decree,  grunting,  continuing, 
modifying,  refusing  01  granting  an  in- 
jun<  I  ion,  or  an  Inl  erl<  culor<  01  Icr  or 
decree  appointing  a  i  eceiver,  or  re- 
fusing an  ordor  lo  wind   up  a   pending 


other   disposal   of   property    thcreunde' 
—thirty   days   from    the    entry   of   sue. 
order    or    decree.     (Sec.     129,    Judick 
Code.  I 

(c)  An  interlocutory  decree  in  acj 
miralty — within  fifteen  days  after  erj 
try  of  decree,  provided  that  with! 
twenty  days  after  such  entry  the  aj 
pellant  shall  give  notice  of  the  appej 
to  the  appellee;  the  taking  of  such  a 
appeal  does  not  stay  proceedings  ltd 
der  the  interlocutory  decree  mile, 
otherwise  ordcre  l  by  the  Distri* 
Court  upon  such  terms  as  it  sha 
deem     jusl.       (Sec.      129,     Judicial     Cud' 

II    Stat.    I.    233.)  \ 

(d)  In  bankruptcy  cases  under  So 
24a    and    b   of   the    Bankruptcy    Acl    ( 

'May  28,   1926— within   thirty  days  aftJ 
the  judgment    or   order   or  other  ma] 
ter   complained    of    has   been    render 
or   entered    such   appeal    to   be   allowi 
in     the     discretion     of      the      appellal 

COUl  t. 

(e)  tn    bankruptcy  cases    under   S< 
25a    of    said     Bankruptcy    Act— with 
thirty    days    after    the    judgment    a; 
pealed  from  has  been  rendered. 

(f)  Appeal  from  decision  of  Distri 
Court  sustaining  or  overruling  excel 
tions    to   awards    in    arbitration   und 

\ei    providing  for   mediation,   concili 
Hen    and    arbitration    in    controversi 
Pel  wen    cei  lain    employers    and    the 
(Continued    on    Page    Five.) 


(Continued   from    Page   One) 

employees,   approved   July    1.1.    1913 
Stats.    11(7  i — within   10  days  alter  judg- 
ment entered. 

(g)  Review  of  decisions  ol  Board  of 
Tax  Appeals — within  six  months  after 
decision  renderi 

2.     Steps. 

(a)  file  petition  for  appeal  with 
clerk    id'    ti  ial   court. 

(b)  File  assign. i  of  eiTor  with 
clerk   of    trial   court. 

(c)  Withdraw  said  papers  tempo- 
rarily from  clerk's  office-  and  present 
same  with  order  allowing  appeal  and 
fixing  amount  of  bond,  costs  and  or 
supersedeas   to  judge  of   trial   court. 

<d>  Have  judge  of  trial  court  sign 
order  allowing  appeal  ami  fixing 
amount  of  bond,  as  required.  Si 
1000,  1007  and  1012,  IP-vised  Statutes 
and  Rule  I-:.  C.  C.  A.  In  criminal 
cases,  in  addition  to  executing  i 
bond,  usually  fixed  at  $250,  bail  bond 
may  Ije  obtained  in  amount  to  be 
fixed   l>\    trial  judge. 

(e)  Citation  on  appeal  should  be 
signed  by  judge  allowing  appeal. 
(Citation  should  be  tested  in  the  name 
of  judge    signing  same.) 

if)  Return  petition  ha-  appeal  and 
assignments  of  error  to  thi  clerk's 
office  of   trial  court. 

(g)    Pile    with    clerk    of    trial 
the    order    allowing    appeal    and    fixing 
amount    of    bond. 

(h)    Bond    duly    executed    should    be 
presented    to    judge    who    allowed 
peal  for  his  approval. 

(i)  File  with  clerk  of  trial  court 
bond  bearing  approval  of  judge. 

(j)  After  serving  citation  on  appeal 
on  adverse  party,  or  "Counsel,  file  with 
the  clerk  of  the  trial  conn.  (It  is 
advisable  for  counsel  for  the  appel- 
lant to  serve  a  copy  of  the  assign- 
ment of  errors  on  the  adverse  party 
or  the  attorney  of  record  with  th< 
cita  t  ion.) 

(k)  Praecipe  for  transcript  of  rec- 
ord   should    be    entitled    ill    the    District 

Court,  addressed    to   the  clerh  of  said 
court,    served    upon    opposing    coin 
and  ti  led  with   the  clerk   of  said   court. 

(1)    If  the   clerk   of  the   trial   court 
unable    to   prepare    and    file    the    tran 
script  of  record   with   the  clerk   of   the 
appellate    court   within    the    time    fixed 
by  the  citation,  an  order  should  be  ob- 
tained from  the  judge  who  signed   the 
citation,    or   a    judge    of    the    appell 
court,   agreeably   to   the    provisions   of 
subdivision    1    of   Kid.-    1G   ol'   the    IP- 
of  Practice  of  the  appellate  courl   and 
filed    with    ihi-    clerk    of    the    appellate 
courl      The  clei  Is  ol   the  disl   icl   i  ourt 

liould  i"    advised  ol   the  period  ol   • 
('  Hi. ai   grant)  <i 

In  actions  at  common  law  in  which 
hill  of  excepl  ions  inusl  b<  sett  !■■•!  and 
allowed,    careful    attention  i" 

given  to  rules  of  local  district  court 
governing  preparation  ami  settlement 
ther. 

In    suits    in    equity,      observane  ■ 


A  TREATISE 


ON 


c 


FEDERAL   PRACTICE 

CIVIL  AND  CRIMINAL 


INCLUDING 

Practice   in  Bankruptcy,    Admiralty,    Patent   Cases, 

Foreclosure    of   Railway   Mortgages,    Suits 

Upon  Claims  Against  the  United  States, 

EQUITY  PLEADING  AND  PRACTICE,  RE- 
CEIVERS AND  INJUNCTIONS 

IN  THE  STATE  COURTS 

BY 

ROGER  FOSTER 

of  the  new  york  bar, 

Author  of  Commentaries  on  the  Constitution  of  the  United  States 
Treatises  on  the  Federal  Judiciary  Acts  of  1875  and  1887,  the 
Federal  Income  Tax  of  1834,  Liberty  of  Contract,  Attach- 
ment, &c.,  and  Lecturer  on  federal  Jurisprudence 
At  the  Law   School  of  Yale  University. 


FIFTH   EDITION 

REVISED  AND  ENLARGED 

IN  THREE  VOLUMES 
VOL.  I. 

CHICAGO 

CALLAGHAN  &  COMPANY 

1913 


Copyright,  1890, 

BY 

ROGER  FOSTER. 


Copyright,  1892, 

BY 

ROGER  FOSTER. 


Copyright,  1901, 

BY 

ROGER  FOSTER. 


Copyright,  1909, 

BY 

ROGER  FOSTER. 


Copyright,  1913, 

BY 

ROGER  FOSTER. 


19/ 


PREFACE. 


When  this  work  was  begun,  thirty  years  ago,  its  design  was  a 
Treatise  upon  Federal  Equity  Practice  alone.  The  subject  was 
chosen  because  this  was  then  territory  unknown  to  most  mem- 
hers  of  the  bar.  including  the  author.  During  the  seven  years 
that  passed  before  the  completion  of  the  first  edition  in  one 
volume,  he  was  convinced  of  the  necessity  of  including  chapters 
upon  practice  at  common  law  and  error  and  appeal.  The  kind 
reception  given  to  the  book  by  the  bench  and  bar  induced  him. 
in  the  succeeding  three  editions,  to  add  chapters  upon  the  juris- 
diction and  practice  of  the  Courts  of  the  United  States  in  other 
branches  of  the  law.  These  and  the  later  statutes  and  decisions 
enlarged  the  book  into  three  volumes,  leaving  the  old  section 
numbers  undisturbed,  with  those  that  were  new  designated  by 
letters  of  the  alphabet.  This  made  their  citation  awkward, 
and  the  result  was  an  arrangement  that  was  neither  symmetri- 
cal nor  logical.  Now  that  the  Judicial  Code  and  the  new  Equity 
Rules  have  revolutionized  the  jurisdiction  and  practice  of  the 
Federal  courts,  it  seemed  to  him  that  a  rearrangement  of  the 
topics  would  make  the  book  more  useful  to  most;  although  he 
regrets  to  cause  some  inconvenience  to  old  friends  accustomed 
to  use  the  book  in  its  original  shape  and  he  dislikes  to  depart 
from  the  traditions  of  the  legal  classics,  which  preserve  the  origi- 
nal numbers  of  their  pages  or  sections. 

The  whole  b  10k  has  been  rewritten  and  much  new  matter  has 
been  added,  especially  in  the  chapters  on  Criminal  Practice. 
Admiralty  and  Bankruptcy,  besides  a  description  of  several 
topics,  for  example,  the  Consular  Courts  and  Extradition,  that 
had  been  previously  omitted.  By  the  elimination  of  a  number 
of  ((notations  and  the  transfer  of  many  instances  from  the  text 

iii 


iv  PREFACE. 

to  the  notes,  ho  found  room  for  this  without  adding  a  fourth 
volume. 

He  has  spared  no  pains  in  making  the  work  complete.  Not- 
withstanding the  demands  of  an  exacting  profession  he  has 
worked  upon  the  book  "every  week  that  he  was  at  his  office  for  the 
last  twenty  three  years,  and  he  believes  that  he  has  examined 
every  reported  ease  that  has  been  decided  by  a  court  of  the 
United  States.  He  will,  however,  welcome  any  suggestions  as  to 
errors  or  omissions  by  correcting  which  he  can  make  it  more  use- 
ful to  the  bar.  Although  he  has  added  references  to  a  few  of 
the  later  cases,  such  as  those  relating-  to  The  Titanic,  that  have 
appeared  while  the  book  was  passing  through  the  press,  all  re- 
ported since  the  two  hundred  and  twenty-eighth  volume  of  the 
reports  of  the  Supreme  Court  of  the  United  States  and  the  two 
hundredth  volume  of  the  Federal  Reporter  are  not  included. 

The  description  of  the  practice  in  equity  as  it  existed  before 
the  promulgation  of  the  new  rules  has  been  retained,  because 
these  cannot  be  adequately  understood  without  a  knowledge  of 
what  preceded  them  and  also  in  order  to  make  the  book  useful 
to  practitioners  in  the  States  that  still  retain  the  distinction  be- 
tween the  practice  at  common  law  and  that  in  equity,  lie 
hopes  that  the  book  now  contains  everything  except  the  local 
rules  and  statutes  that  is  needed  by  a  practitioner  in  the 
courts  of  equity  of  New  Jersey,  .Massachusetts,  Delaware, 
Tennessee,  Kentucky,  Mississippi,  and  Alabama,  as  well  as  in 
all  the  courts  of  the  United  States  and  the  Supreme  Court  of 
the  District  of  Columbia:  besides  the  treatment  of  a  number  of 
topics,  such  as  Parties,  Service  of  Process  by  Publication,  Mul- 
tifariousness, Injunctions.  Receivers  and  others  equally  import- 
ant under  ('ode  practice. 

When  he  has  completed  his  Commentaries  upon  the  Consti- 
tution of  the  United  States,  of  which  one  volume  has  been  al- 
ready published,  the  author  hopes  to  be  able  to  furnish  the  prac- 
titioner with  a  complete  guide  to  the  whole  field  of  Federal  Ju- 
risprudence. 

Liberty  Tower,  New  York,  June  3rd,  1913. 


TO 

DWIGHT  FOSTER, 

FORMERLY   JUSTICE   OF   THE   SUPREME   JUDICIAL   COURT 
OF   MASSACHUSSETTS. 

/  DEDICATE  THIS  BOOK, 

BEGUN  AT  HIS  SUGGESTION, 
ALTHOUGH  HE  DID  NOT  LIVE  TO  CORRECT  ITS  FAULTS. 


TABLE  OF  CONTENTS. 


VOLUME  I. 

CHAPTER  I. 

ORIGINAL   JURISDICTION. 

Page 
i     1.  Constitutional  provisions  concerning  the  courts  of  the  United 

States    1 

2.  Enumeration  of  the  courts  of  the  United  States    2 

3.  Original  jurisdiction  and  terms   of  the   Supreme  Court    3 

4.  The  jurisdiction  and  terms  of  the  Circuit  Courts  of  Appeals  and 

the   judicial  circuits    8 

5.  Jurisdiction  of  the  District  Courts  in  general   11 

6.  Value  of  the  matter  in  dispute.    In  general    22 

7.  Value  of  the  matter  in  dispute  in  action  for  damages   28 

8.  Value  of  the  matter  in  dispute  in  ejectment,  and  other  suits  to 

obtain   the   possession   of   land    32 

9.  Value  of  the  matter  in  dispute  in  action  to  recover  posession  of 

personal  property   33 

10.  Value  of  the  matter  in  dispute  in  suits  of  foreclosure 33 

11.  Value  of  the  matter  in  dispute  in  suits  to  redeem    34 

12.  Value  of  the  matter  in  dispute  in  suits  to  quiet  title   34 

13.  Value  of  the  matter  in  dispute  in  suits  for  injunctions   36 

14.  Value  of  the  matter  in  dispute  upon  taxpayers'  bills    40 

15.  Value  of  the  matter  in  dispute  upon  creditors'  bills    42 

16.  Value  of  the  matter  in  dispute  upon  stockholders'  bills '     42 

17.  Value  of  the  matter  in  dispute  when   there  arc   joint   plaintiffs  4.-! 

18.  Value  of  the  matter  in  dispute  when  there  are  joint  defendants  47 

19.  Consideration  of  interest  in  estimating  the  value  of  the  matter 

in  dispute   52 

20.  Consideration  of  costs  in  estimating  the  value  of  the  matter  in 

dispute     53 

21.  Consideration   of  counterclaims   in    estimating   the    value  of   the 

matter  in  dispute    ,'>:] 

22.  Effect   of   admissions   by   the   defendant    upon    the    value  of   the 

matter  in  dispute    r>5 

23.  Effect  of  a   defense   apparent    in    the    plaintiff's   pleading   upon 

the  value  of  the  matter  in  dispute    55 

24. -Suits    arising    under    the    Constitution    or    laws    of    the    United 

States.      Jn    general     .->t; 

25.  Suits  arising  under  the  Constitution   of  the  United   States    ....  68 

26.  Suits  arising   under   treaties      f    the    United    States    78 

vii 


Vlll  TABLE    OF    CONTENTS. 

Tage 

§   27.   Suits  where   the   parties   arc   Federal   corporations.     In  general  79 

28.  National    banking    associations    81 

29.  Patent  and  copyright  cases   8.3 

30.  Trademark    cases     86 

31.  Land  and  milling  cases   87 

32.  Cases  arising  under  the  laws  relating  to  navigable  waters   ....  89 

33.  Suits  on  judicial  and  official  bonds   90 

34.  Suits  by  and  against  officers  of  the  United  States    91 

35.  Suits    by    and  against   receivers   of   national   banks    93 

36.  Suits  by  and  against  receivers  of  Federal  corporations    93 

37.  Suits   by   and   against    receivers   of   Federal    courts    94 

38.  Suits  by  and  against  trustees  in  bankruptcy   95 

39.  Suits  arising  out  of  litigation   in  the  Federal  courts    95 

40.  Controversies  between  citizens  of  different  States.     In  general.  .  97 

41.  Parties  to  the  controversy    100 

42.  Formal   parties   to   the  controversy    109 

43.  Unnecessary  parties  to   the  controversy    US 

44.  Trustees   and   other   representatives    120 

45.  Controversies  to  which  aliens  are  parties 122 

46.  Determination  of  citizenship.     Natural  persons    126 

47.  Corporations    133 

48.  Unincorporated  stock  companies  and  associations   140 

49.  Partnerships    141 

50.  Under  grants  of  different   States    142 

51.  Ancillary    jurisdiction    142 

52.  Property  in  the  custody  of  another  court  of  co-ordinate  jurisdic- 

tion.    In   general    151 

53.  Property   covered   by   insolvent    assignments 159 

54.  Property  in  the  custody  of  State  courts  of  probate   160 

55.  Property  in  the  custody  of  receivers 164 

56.  Controversies   between    State   sheriffs   and   United   States   mar- 

shals;    and    those    arising    out    of    attachments,    garnishee 

process  and  executions 160 

57.  Effect  of  jurisdiction  of  another  court  over  same  cause  of  action  173 

58.  Effect  of  the  custody,  by  another  court,   of  the   person   of  an 

accused  in  criminal  proceedings,  or  otherwise 175 

59.  Effect  of  the  custody  of  property  by  the  State  court,  where  the 

Federal    courts   exercise   jurisdiction   under   the   Constitution 

and  laws  of  the  United  States   177 

60.  Property   in   the  custody   of  another   Federal  court    170 

61.  Limitations    under  jurisdiction   by   residence    181 

62.  Limitation  upon  jurisdiction  in  patent  cases    196 

63.  Suits  by  assignees   109 

64.  Territorial    jurisdiction    of    the    District    Courts    of    the    United 

States.      In   general    -  208 

65.  Terms  of  the  District  Court-  of  the  United  States,     In  general  211 

66.  Territorial    jurisdiction     and    terms    of    the    different    District 

Courts    of    the    United    States     213 


TABLE    OF    CONTENTS.  IX 

Page 

§  67.  Jurisdiction  of  District  Court  of  Alaska    263 

68.  Jurisdiction  of  the  Supreme  Court  of  the  District  of  Columbia  264 

69.  Jurisdiction  of  the  Court  of  Appeals  of  the  District  of  Columbia  266 

70.  Jurisdiction  of  District  Court  of  Porto  Rico    26S 

71.  Jurisdiction   of   District    Court    of   Hawaii    269 

72.  Jurisdiction    of   the    Supreme    Court    and    other    courts    of   the 

Philippine  Islands   270 

73.  Jurisdiction  of  the  United  States  Court  for  China   277 

74.  Jurisdiction  of  the  Consular  Courts    280 

75.  Jurisdiction   and  practice  of  the  Commerce   Court    298 

76.  Jurisdiction  of  the  Board  of  General  Appraisers   303 

77.  Jurisdiction  of  the  Court  of  Customs  Appeals  310 


CHAPTER   II. 

JURISDICTION  IN  EQUITY. 

§  7S.  Equitable  jurisdiction    in   general 315 

79.  General  survey  of  the  jurisdiction  of  courts  of  equity 317 

80.  The  distinction  between  law  and  equity  in  the  Federal   courts  336 

81.  General  rules  affecting  the  jurisdiction  in  equity  of  the  Federal 

courts     336 

82.  State  laws  creating  new  rights  are  enforced  by  Federal  courts 

at  law   or  equity    342 

83.  State  statutes  cannot  impair  the  jurisdiction  nor  regulate  the 

practice  of  Federal  courts  of  equity 348 

84.  Sources  of  Federal  equity  practice 350 


CHAPTER   III. 

PERSONS  WHO  MAY  BE  PLAINTIFFS  OR  DEFENDANTS  IN  A  SUIT 

IN  EQUITY. 

§     85.  General  rule  as  to  persons  capable  of  being  plaintiffs 3i>4 

86.  States    as    plaintiffs    354 

87.  Alien    enemies    as    plaintiffs    354 

88.  Foreign   corporations    as    plaintiffs    355 

89.  Married    women    as    plaintiffs     355 

90.  Suits  on  behalf  of  infants   35(5 

91.  Suits  on  behalf  of  idiots,  lunatics  and  persons  of  weak  mind  359 

92.  Capacity  of  foreign  executors  and  administrators  to  sue 360 

93.  Capacity   of  foreign   receivers   to  sue    361 

94.  Who    may    be   defendants    363 

95.  The  United  States  as  a   defendant.     In  general    363 

96.  Liability  of  the  United  States  and  officers  thereof  to  suits  for 

the  recovery  of  monev   360 


TABLE    OF    CONTENTS. 

Pago 

97.  District  Court  practice  in  suits  against  the  United  States   .  .  .  376 

Its.  Suits  against   the  United  States  for  partition   379 

99.  Suits   by    Indians   for  allotments  of  land    379 

100.  Injunctions  against  officers  of  the  United  States  3S0 

101.  Ejectment   against   officers   of   the   United   States    383 

102.  Replevin  against  officers  of  the  United  States   384 

103.  Liability  of  a  State  to  a  suit  by  the  United  States   384 

104.  Liability  of  a  State  to  a  suit  by  another  State    384 

11)5.  Liability  of  States  to  suits  by  private  persons    387 

106.  Suits    against    infants     398 

107.  Suits  against  idiots,  lunatics,  and  persons  of  weak  mind....  400 

108.  Suits   against   married  women    401 

109.  Foreign  executors  and  administrators  as  defendants   401 


CHAFTEE   IV. 

PARTIES. 

§  110.  General  rule  as  to  parties   402 

111.  Parties  with  no  interest  in  the  subject-matter  of  the  suit   ..  404 

1 12.  Persons   who  on  account  of  their  interest  need  not  be  made 

parties    to    a    suit    in    equity     407 

113.  Cases   where   the   law    has    furnished   a   representative    415 

114.  Class     suits     423 

115.  Suits    against    one    or    more    of    a    class     420 

116.  Suits    by    or    against    one    or    more   as    representatives    of    a 

class  claiming  a  common  right    .  .  428 

117.  Omission    of    defendants    not    within    the    jurisdiction    of    the 

court      430 

US.  Formal  parties  who  may  be  omitted  when   without  the  juris- 
diction       433 

1 1!).   Tail  ies  whose  interest  is  separable   434 

120.  Parties  indispensable  to  a  decree   443 

121.  When  numerous  interests  have  been  created  for  the  purpose  of 

preventing  the  plaintiff  from  obtaining  equitable  relief   ....  451 

122.  When  a  person  consents  to  the  relief  sought    452 

123.  When  the  plaintiff  waives  his  right  against  a  person   452 

124.  When  the  interest  of  an  absent  person  is  evidently  very  small  453 

125.  When  the  absent  persons  are  unknown   453 

126.  When   the  right  of  administration   is  in  dispute    453 

127.  Relaxation  of   rule   as   to   parties   in   special  cases    453 

128.  Restatement    of   the   rules   as    to    parties    451 

129.  Objection    for    want    of    parties     455 

130.  Objection  for  joinder  of  improper  parties   458 


TABLE    OF    CONTENTS.  XI 

CHAPTER   V. 

BILLS   IN   EQUITY. 

Page 

§  131.  Informations   460 

132.  Definition   and   classification   of   bills    405 

133.  Frame  of  a  bill  in  equity    467 

134.  Address    and   caption    469 

135.  Introduction  and  jurisdictional  averments 469 

136.  Narrative  part  of  a  bill   475 

1 37.  Certainty    478 

138.  Inconsistency  and  bills  with  a  double  aspect 485 

139.  Multifariousness  or  misjoinder.     In  general    490 

140.  Multifariousness    by    misjoinder    of    plaintiffs    492 

141.  Multifariousness  by  misjoinder  of  defendants    496 

142.  Multifariousness  without  misjoinder   of  parties    506 

143.  Objections  for  multifariousness  or  mjsjoinder 508 

144.  General    rules    of   equity    pleading    510 

145.  Stockholders'  bills    515 

146.  Bills  to  enjoin  the  infringement  of  patents    525 

147.  Bills  to  compel  the  issue  of  patents  and  bills  to  obtain  relief 

against  interfering  patents   536 

148.  Bills   to   restrain   infringements   of  trade-marks    539 

149.  Bills   to   obtain   relief   against   interfering  trademarks    542 

150.  Bills  to  restrain  infringement  of  copyrights   543 

151.  Bills  in  equity  under  the  Interstate  Commerce  Law    51-9 

152.  Interrogatory    clause     552 

153.  Waivers  and   offers    552 

154.  The  prayer  for  relief    557 

155.  The  signature  to  a  bill    50 1 

156.  Affidavits  to  bills : 502 

157.  Bills    of    interpleader    563 

158.  Bills  in  the  nature  of  interpleader    567 

159.  Bills  of  certorari   568 


CHAPTER  VI. 

SUBPOENAS   TO   ANSWER. 

§  100.  Definition    and    form    of    subpoena    570 

101.  Issue  of  the  subpoena   573 

102.  When  a  subpoena  is  necessary   574 

103.  Personal  service  of  a  subpoena 574 

104.  Service  upon  corporations    579 

1 05.  Substituted    service    of    a    subpoena     587 

166.  Statutory  service  of  a  subpoena    590 

167.  Exemptions   from  service  of   subpoena  or  other   process,  legal 

or    equitable,   other    than    arrest    601 


XH  TABLE    OF    CONTENTS. 

CHAPTEK  VII. 

APPEARANCE. 

Tage 
§  168.  Definition  of  an  appearance    606 

169.  What    constitutes    an    appearance    606 

170.  Effect  of  an  appearance   611 


CHAPTER  VIII. 

TAKING    BILLS   PRO   CONFESSO. 

§  171.  When   a   bill   may  be  taken  pro   confesso    614 

1 72.  Practice  in  taking  a  bill  pro  confesso t 617 


CHAPTER   IX. 

ANSWERS. 

?   1 73.  Answers  in  general   623 

174.  Admissions  and  denials  and  discovery 624 

175.  Pleading    defenses    in    answer    630 

176.  Defenses  in  answer.    In  general 631 

177.  Pendency  of  another  suit 635 

178.  Defenses    in    bar    639 

1 79.  Defenses  of  statutes.     In  general 639 

ISO.  Federal  statutes  of  limitations   639 

181.  State  statutes  of  limitations 645 

182.  Equitable  laches 648 

183.  Pleading  statute  of  limitations 649 

184.  Defense   of   statute   of    frauds    050 

185.  Defenses  of  matter  in  pais 051 

186.  Defenses  of  matter  of  record  or  res  judicata    652 

187.  Form  of  defense  of  res  judicata   669 

188.  Defenses  peculiar  to  Patent  Cases    671 

1 89.  Proceedings  to  compel  answer    681 

190.  Frame  of  answer   681 

191.  Signature  and   seal   to  answer    6S3 

192.  Oath  to  answer .  684 

193.  Motions  to  take  answers'  off  the   file    685 

194.  Exceptions  for  insufficiency    686 

195.  Supplemental    answers     687 

196.  Disclaimers    6S7 


TABLE    OF    CONTENTS.  Xlll 

CHAPTER  X. 

CROSS-BILLS   AND    COUNTER-CLAIMS. 

Page 

107.  Definition  and  origin  of  cross-bills    690 

1 98.  Counter-claims    694 

199.  New  parties  to  cross-hills  and  counter-claims   699 

200.  Time  of  filing  set-offs,  counter-claims  and  cross-bills    703 

201.  Proceedings  upon  cross-bills        703 

CHAPTER  XL 

REPLIES. 

202.  Definition  and  history  of  replies    70S 

203.  When  a  reply  should  be  filed  . 709 

204.  Effect  of  reply    712 

205.  Frame  of  a  reply   712 


CHAPTER  XII. 

AMENDMENTS    OF    WRITS.    PROCESS    AND    PLEADINGS,    AT    LAW 

AND  IN  EQUITY. 

§  206.  Amendments  in  general    714 

207.  Amendments  of  writs  and  process 715 

208.  Amendment  of  pleadings  at  common-law    710 

209.  When  lulls  in  equity  can  be  amended   710 

210.  Form  and  effect  of  amendment  of  a  bill    718 

211.  What  amendments  may  be  made  to  bills  in  equity  and  declara- 

tions at  common  law    721 

212.  Amendment  by  pleading  matters  subsequent  to  the  filing  of  the 

bill    720 

213.  Proceedings  upon   an  amended  bill    728 

214.  Amendment    of    answers    and    pleas     720 

215.  Practice  in  obtaining  leave  to  amend   731 


CHAPTER  XIII. 

ABATEMENT,  REVIVOR   AND   SUPPLEMENT  AT  LAW   AND  IN 

EQUITY. 

§  216.  Abatement 736 

217.   Effect  of  abatement 742 

2 IS.  When  a  suit  may  be  revived  and  effect  of  revivor 74  4 

219.  Who  may   revive  a   suit    745 

220.  Manner  of  revivor  at  common  law    747 


XIV  TABLE    <>1-     CONTENTS. 

Page 

§  221.  Manner  of  revivor  in  equity  in  general    750 

222.  Definition  of  bill  of  revivor  and  parties  to  the  same   7oi 

223.  Frame  of  bill  of  revivor    752 

224.  Proceedings  upon  bills  of  revivor  753 

225.  Bills  in  nature  of  bills  of  revivor  in  general   75fi 

226.  Frame  of  bills  in  the  nature  of  bills  of  revivor  and  proceedings 

upon  them 758 

227.  Manner  of   revivor   upon   appeal   or  error    758 

228.  Bills  of  revivor  and   supplement    761 

220.  Supplemental  bills  in  the  nature  of  bills  of  revivor   7(i2 

230.  What  renders  a  suit  defective    7G3 

231.  Supplemental  bills   765 

232.  Parties  and  frame  of  a  supplemental  bill    771 

233.  Proceedings  upon  supplemental   bills    773 

234.  Bills  in  the  nature  of  supplemental  bills  in  general    776 

235.  Frame  of  a  bill  in  the  nature  of  a  supplemental  bill   778 

236.  Proceedings  upon  bills  in  the  nature  of  supplemental  bills  ....  779 


CHAPTER  XIV. 

IMPERTINENCE  AND  SCANDAL. 

§  237.  Impertinence 780 

238.  Scandal 783 

239.  Striking  out  scandal  and   impertinence    785 


CHAPTER  XV. 

MOTIONS   TO   MAKE   PLEADINGS   MORE  DEFINITE   AND   CERTAIN 
AND  BILLS  OF  PARTICULARS. 

§  240.  Distinction  between  motions  to  make  pleadings  more  definite 

and  certain  and  bills  of  particulars 788 

241.  Motions  to  make   pleadings  more  definite  and  certain    788 

242.  Bills    of    particulars    791 

243.  Practice  upon   motion   for  bill   of  particulars    792 

2  (  L  Remedy  for  failure  to  give  a  bill  of  particulars   793 

245.  Form    of    bill    of    particulars 793 

246.  Amendment"  of  bill  of  particulars    794 


CHAPTER  XVI. 

MOTIONS  AND  PETITIONS. 

§  247.  Definition  and  classification  of  interlocutory  applications   ....      796 
248.   Definition  and  classification  of  motions   796 


TABLE    OF    CONTENTS.  XV 

Page 

§  249.  Motions  of  course    7!>t; 

250.  Special  motions  without  notice 7<)7 

251.  Notice    of    motion     7!>s 

252.  Argument    of    motions     803 

253.  Petitions  in  general   806 

254.  Form  of  petitions  and  practice  upon  them   80S 

255.  Orders     s  1 0 

256.  Judges  who  may  grant  orders 816 

257.  The    clerk's    office 817 


CHAPTER  XVII. 

INTERVENTIONS. 

§  258.  Petitions  of  intervention   821 

259.  Practice   upon   interventions    833 

260.  Rights  of  intervening  complainants   842 

261.  Rights    of    intervening    defendants    843 


CHAPTER  XVIII. 

INJUNCTIONS. 

§  262.  Definition,  classification,  and  objects  of  injunctions    846 

263.  Injunctions  to  enforce  trusts  and  other  purely  equitable  rights  846 

264.  Injunctions     to     restrain     corporations     from     violating    their 

charters 847 

265.  Injunctions   to  enforce   the   specific   performance  of   covenants 

and  other   contracts   affecting  land    850 

266.  Injunctions  to  prevent  a  multiplicity  of  suits   851 

267.  Injunctions  to  prevent  irreparable  injury  for  which  the  remedy 

at  law  is  inadequate;    in  general    852 

268.  Injunctions  to  stay  proceedings  in  other  courts.    In  general   . .  853 

269.  Injunctions  to  stay  proceedings  in   Federal  courts    854 

270.  Injunctions  to  stay  proceedings  in  State  courts 856 

271.  Injunctions   against  criminal   proceedings    Slil 

272.  Injunctions   to   restrain    the    alienation    of    property    863 

273.  Injunctions  to  prevent  waste 864 

274.  Injunctions  to  prevent  the  continuance  of  a    nuisance    865 

275.  Injunctions   to   restrain    trespass    SOS 

276.  Injunctions    against    strikers     870 

277.  Injunctions  to  restrain   the  infringement  of  patents    873 

278.  Injunctions    to    restrain    the    infringements    of   copyrights....  882 

279.  Injunctions  to  restrain  the  unlawful   use  of  trade-marks    ....  886 

280.  Injunctions  to  prevent  the  opening  of  letters    889 


XVI  TABLE    OF    CONTENTS. 

Tagt1 
§   281.    Injunctions  to  compel  the  performance  or  prevent  the  breach 

of  contracts  not  affecting  land   889 

282.  Injunctions  to  compel  the  delivery  of  personal  property  torti- 

ously    withheld    891 

283.  In junct  ions   authorized   by   statute    891 

284.  When   injunctions   will  not   issue    893 

285.  Distinction  between  the  judicial  writ  and  the  writ  remedial..  SOS 

286.  Distinction  between  mandatory  and  prohibitory  injunctions  ..  899 

287.  Distinction  between  provisional  and  perpetual  injunctions   ....  901 

288.  Distinction  between  common  and  special  injunctions    902 

2S9.  Time  and  place  of  applications  for  interlocutory  injunctions  . .  902 

290.  Injunctions    not    prayed    for    in    the    bill     903 

291.  Special    practice    of    the    Federal    courts    in    the    issue    of    in- 

junctions     904 

292.  Notice  of  application  for  interlocutory  injunction 906 

293.  Affidavits   upon   an   application    for   an   injunction    90S 

294.  Rules  of  decision  upon  applications   for   interlocutory  injunc- 

tions   ■ 910 

295.  The  writ  of  injunction    91.3 

296.  Dissolution   and   modification    of    interlocutory   injunctions    ..  917 

297.  The  imposition  of  terms  upon  the  issue,  denial,  dissolution,  or 

continuance  of  an  injunction   922 

298.  Collection    of    injunction    bonds     : 925 

299.  Perpetual  injunctions    928 

300.  Appeals   from   injunction   orders    929 


CHAPTER  XIX. 

RECEIVERS. 


§  301.  Definition  of  receiver   937 

302.  When  receivers  will  be  appointed 937 

303.  Rules  regulating  the  appointment  of  receivers 948 

304.  Ancillary  receivers 949 

305.  Terms  upon  the  appointment  of  receivers,  and  preferences  in 

foreclosure    suits     956 

300.    Property   over    which    receivers   may   be   appointed    974 

307.  Powers  of  receivers  in  general    978 

308.  Powers  of  receivers   of   railroads    982 

309.  Receivers'  certificates 987 

310.  Advice    to    receivers    994 

.311.  Litigation   by   receivers    995 

312.  Duties    of    receivers     100.3 

313.  Liability  of  a   receiver    1007 

314.  Suits    against    receivers    1011 

315.  Manner  of  applying  for  the  appointment  of  a  receiver   1017 

310.  Who  may  apply  for  the  appointment  of  a  receiver   1021 


TABLE    OF    CONTENTS.  XV11 

Page 

§  317.  Manner  of  the  appointment  of  a   receiver    102] 

318.  Wlio    should    be    appointed    receiver     1022 

319.  The    receiver's    security    1025 

320.  Proof  of  claims  against  receivers   1027 

321 .  Receiver's  accounts   1 030 

322.  Compensation  of  receivers   1033 

323.  Removal     of    receivers     L036 

324.  Discharge  of  a   receiver    1039 

325.  Appeals  from  orders  appointing  receivers   1042 


CHAPTER  XX. 

THE  WRIT  OF  NE  EXEAT  REPUBLICA 

§  326.  Definition  of  the  writ  of  ne  exeat  republica,  and  when  it  will 

issue     1 045 

327.  Against  whom  the  writ  will   issue    1040 

328.  Practice  in  obtaining  the  writ  of  ne  exeat  1048- 


VOLUME  II. 

CHAPTER  XXI 

EVIDENCE  AND  DISCOVERY  AT  LAW  AND  IN  EQUITY. 

§  329.  Evidence  in  general  1 053 

330.  Admissions     1057 

331.  Constructive  admissions   1059 

332.  Documentary    evidence    in   general 1000 

333.  Federal  statutes  regulating  admission  of  documentary  evidence  1003 

334.  Definition  and  use  of  an  affidavit 1081 

335.  Manner  of  verifying  an  affidavit    1081 

336.  Title    of    an    affidavit     1082 

337.  Form   of   an   affidavit 1083 

338.  Execution  of  an  affidavit   1085 

339.  Competency  of  witnesses   : 1086 

340.  Subpoena  ad  testificandum   1 10O 

341.  Subpoena  duces  tecum  1102 

342.  Service  of  a  subptena  ad  testificandum   1 105 

343.  Compelling  a  witness  to  testify 1 109 

344.  Testimony  taken  in  equity  which  may  be  used  in  other  courts  1112 

345.  Bills  to  perpetuate  testimony    1112 

340.  Bills  to  take  testimony  de  bene  esse   1115 

347.  Bills  of  discovery    1 1 1  (5 

348.  Discovery  in  equity  1118 

349.  Inspection   in  equity    1 126 


Xviii  TABLE    OF    CONTENTS. 

§   350.  Inspection    at    common    law    1127 

35].  Testimony  taken  before  a  cause  is  at  issue 1129 

35-2.  Testimony   taken   within  the  jurisdiction  of  the  court  after  a 

cause  is  at  issue 1130 

353.  Testimony  taken  after  a  cause  is  at  issue  and  beyond  the  jur- 
isdiction of  the  court    '  1;>>,i 

.'!.->4.    Depositions  de  bene  esse  under  the  acts  of  Congress 1 137 

:;:>.->.   Form  of  deposition  under  acts  of  Congress 1145 

:i.->(i.  Commissions  issued  under  a  dedimus  potestatem 1150 

357.  Proceedings  under  a  dedimus  protestatem   1154 

358.  Letters  rogatory 1 158 

359.  Testimony  taken   in  the  manner  prescribed   by  the  State  law  1161 


CHAPTER  XX  IT. 

DISMISSAL  OF  BILLS  BEFORE  A  HEARING. 

:|  360.  Dismissal  of  bills  before  a  hearing.     In  general   1164 

361.  Dismissal  of  bills  by  the   plaintiff    H64 

362.  Dismissal  of  bills  for  want  of  prosecution  or  fur  failure  to  per- 

fect  or    revive    the    suit    1108 

'363.  Dismissal  for  want  of  jurisdiction    H69 

364.  Motions  to  dismiss  because  the  complaint   shows  no  cause  of 

1 1  ~  x 

action mt 

365.  Demurrers  under  the  former  practice 1175 

366.  Admissions  by  a  demurrer • H75 

367.  Classification  of  demurrers 1 18u 

368.  Election  and  transfer  to  the  law  side  of  the  court   1184 


CHxVPTER  XXIII. 

THE  HEARING. 

• 

|  369.  Bringing  a  suit   to   a   hearing    1187 

370.  Judges  who  can  try  cases  at  law  and  in  equity 1188 

371.  Challenge   of   a   judge   for   interest    1191 

372.  Challenge    of    a    judge   for    prejudice    1191 

37"..   Arrangement   of    calendar    1  1!)4 

374.  Manner  of  hearing  a  cause 1195 

37").   Rules   of   decision    upon    a    hearing    1196 

376.  Objections  which   cannot  be  made  at  the   hearing    1U)9 

377.  Action  of  the  court  upon  a  hearing    1200 


TABLE    OF    CONTEXTS.  XIX 

CHAPTER  XXIV. 

ISSUES  AT  LAW. 

378.  Power  of  courts  to  direct   issues   at   law    1203 

370.  Matters  concerning  whieli  an  issue  is  directed 1204 

380.  Time  when  an  issue  is  directed 1205 

381.  Manner  of  trying  an  issue 120f> 

382.  Effect  of  the  finding   of   a   jury   upon   an    issue    1207 

383.  Proceedings    after   the    trial    of   an    issue    1200 


CHAPTER  XXV. 

PROCEEDINGS  IN  A  MASTER'S  OFFICE. 

§  384.  References   to   masters    in    general    12]  J 

385.  Who  may  be  appointed  master 121 3 

380.  Bringing  on  a  reference   1214 

387.  Parties  entitled  to  attend  a  reference  before  a  master   1215 

38S.  Proceedings    before   a   master    in   general     1217 

389.  Proceedings  upon  accountings   1210 

300.  A  state  of  facts  and  ciaim    1 227 

391 .  Evidence  before  a  master    1 228 

392.  Masters'   repors  and   compensation    1230 

393.  Exceptions  to  masters'  reports   1231 

394.  Judicial   sales  by  masters  and   other   officers    1235 

395.  Compensation  of  masters  1255 

CHAPTER  XXVI. 

DECREES. 

§  396.  Definition  and  classification  of  decrees    1257 

397.  Final  and  interlocutory  decrees   1257 

398.  Decrees  in  personam 1260 

399.  Decrees  in  rem   1262 

400.  Absolute  and  conditional  decrees   1202 

401 .  Decrees   nisi    1 204 

402.  Decrees  in  the  nature  of  decrees  nisi   1208 

403.  Time  of  entry  of  decree    1269 

404.  Frame   of   decree    1 209 

405.  Motions  at  the  foot  of  a  decree   1274 

406.  Enrollment  of  decree    1275 


XX  TABLE    OF    CONTENTS. 

CHAPTER  XXVII. 

COSTS. 

Page 

§  407.  Costs  in  general  at  law   3277 

108.  <  !osts  at  common  law 1280 

109.  Costs  in  equity  1281 

410.  ( 'osts  iii  patent  and  trademark  cases 1285 

411.  (  losts  in  admiralty ]2S(i 

412.  (  osts  mi  error  and  appeal    1289 

413.  Petitions  for  leave  to  sue  in  forma  pauperis  ]290 

414.  Classification  of  costs  1204 

415.  Costs  as   between   party   and   party    1204 

416.  Attorney'-,  fees    .' 1294 

417.  Clerk's   fees    1301 

418.  Marshal's    fees    1313 

410.   Witness   fees    1320 

420.  Miscellaneous  disbursements    1324 

421.  Costs  out  of  the  fund   1330 

122.   Losts  as  between  solicitor  and  client    1335 

42:!.  Taxation  of  costs   1337 

424.    Appeal  from  taxation  of  costs 1338 

42.").  Security    for   costs    1330 


CHAPTER  XXVIII.   . 

ENFORCEMENT  OF  DECREES   AXD  ORDERS,   INCLUDING  EXECU- 
TIONS AND  WRITS  OF   POSSESSION. 

§    126.    Enforcement  of  decrees  and  orders   in  general    1343 

427.  Executions  and  proceedings  supplementary  thereto   134:5 

428.  ( lontempts    1353 

420.    Practice    in    contempt    proceedings.      In    general    1304 

4-'!0.  Criminal   proceedings  to  punish  for  contempt 1308 

431 .  Civil  contempt  proceedings    1375 

t.!2.   Writ  of  attachment  against  the  person   1370 

433.    Execution  of  writ  of  attachment   1377 

C!4.   Review   of   commitments   for   contempt.     In   general    1370 

4:;.">.    Review  by  habeas  rot-pits  of  commitment  for  contempt 1380 

4-'!0.   Review  by  writ  of  error  of  commitment  for  contempt   1382 

437.  Review    by   appeal   of   commitment   for  contempt    1383 

438.  Review   by   revisory  petitions  of  commitment  for  contempt   in 

bankruptcy  proceedings  1384 

439.  Sequestration    1384 

440.  Writ  of  assistance  and  writ  of  possession 1385 

441.  Action  by  court  itself 1387 

442.  ISills    to   carry    decrees    into   execution    1389 


TABLE    OF    CONTENTS.  XXI 

CHAPTER  XXIX. 

CORRECTION  OF  DECREES  OTHERWISE  THAN  BY  APPEAL. 

Page 

§  443.  Correction  of  decrees  in  general    13^ 

444.  Amendment  of  decree  without  a  rehearing ]39~ 

445.  Petition  for  a  rehearing -  ' 

446.  Supplemental  bills   in   the   nature   of  bills  of   review    . 

447.  Bills  of  review    

448.  Provisions  peculiar  to  bills  of  review  for  matters  of  fact  newly 

,.  i  1406 

discovered    • 

449.  Provisions  common  to  all  bills  of  review   141° 

450.  Bills   in  the  nature  of  bills  of   review    ■  •    1415 

451    Bills  to  impeach  decrees  on  account  of  fraud,  accident  or.  mis- 

,    ,  1410 

take    

452.  Bills  to  suspend  or  avoid  the  operation  of  decrees  or  judgments  142(1 


CHAPTER  XXX. 

PRACTICE  AT  COMMON  LAW  IN  CIVIL  ACTIONS. 

8  453.  Common-law   practice  in  general    

3  ,  •  142s 

454.  Pleading  at  common  law 

455.  Writs   and   process   in  general    1437 

4.-.I}.  Writs  of  prohibition    

457.  Mandamus 

458.  Jurisdiction  of  the  Supreme  Court  of  the  District  of  Columbia 

to   issue   a  writ   of   mandamus   to   an   officer   of   the    United 

0,    .  1456 

States    

459.  Practice  on  application  for  mandamus   14<>1 

460.  Writs  of  certiorari    

461.  Writs  of  habeas  corpus  in  general    'v'  "  '.'. 

462.'  Habeas    corpus    to    review    proceedings    for    extradition     ....    1482 

463.  Habeas  corpus  for  immigrants   14H 

464    Discharge   of   soldiers  from   the  army   by   the  writ   of   habeas 

1501 

corpus    • 

465.  Suspension  of  writ  of  habeas  corpus   150'^ 

466.  Practice  on  application  for  habeas  corpus   1507 

467.  Appeals  in  habeas  corpus  proceedings  151' 

468.  Writs  of  quo   warranto    '0-_ 

469.  Writs    of    scire    facias     152' 

470.  Attachment  of  property    1;'" 

._.      A         ,  1540 

47 1 .  Arrests    ; 

472.  Consolidation   at   law   and    in   equity    lo44 

473.  Trials 1547 

474.  Trials  by  the  court   1;,'lS 

.__    -o •  •-  \  1504 

4<  o.  References    


XX11  TABLE    OF    CONTENTS. 

Pago 

§   476.  Agreed  statement   of  facts   1566 

477.  Rules  of  decision   at  common   law    1567 

478.  New  trials 15S0 

47'.'.   Bills  of  except  ions  1588 

480.  Judgments  1601 

481.  Correction  of  judgments   by  courts   that   render   them    1604 

482.  Condemnation  proceedings   16U9 

CHAPTER  XXXI. 

PRACTICE    IN   CRIMINAL    CASES. 

§  483.  Criminal   practice  in  general    16] 5 

484.  Arrests  without   warrants    1618 

485.  The    complaint    1618 

486.  The  warrant 1619 

1 87.  Search    warrants    1621 

488.  Preliminary  examination 1623 

489.  Warrants  of  removal   1627 

490.  Extradition  to  foreign  countries    1633 

491.  Extradition  from  one  State  to  another    1643 

4'»2.   Summons  in  criminal  cases   1646 

493.  Bail 1646 

4'.t4.  Information 1658 

405.  Indictments    1660 

496.  Caption  of  indictment   1661 

497.  Body  of  indictment 1662 

498.  Signature  of  indictment   1668 

499.  Indorsement  of  indictment 1669 

500.  Duplicity 1670 

501.  Joinder  of  counts 1671 

502.  Misjoinder   ei   counts    1673 

503.  Joinder  of  charges  of  unlawful  use  of  the  mails   1674 

504.  Joinder  of  defendants  to  indictment    1675 

")!».").   Consolidation  of  indictments 1676 

506.  Indictment  for  the  violation  of  the  national  banking  laws   ....  1677 

507.  Ordinance  of  Constitution  as  to  juries.     In  criminal   prosecu- 

tions   ' 1 68S 

508.  Qualifications   of  grand  and    petit  jurors    1689 

509.  Selection  of  grand  and  petit  juries   1691 

5 1 0.  Writ  of  venire  facias 1 696 

51  1.    Proceedings    of    grand    jury     1698 

512.  Challenges  to  grand  jurors 1702 

513.  .Manner  of   taking  objections   to   an    indictment    1702 

514.  Arraignment 1702 

515.  Motion  to  quash  an  indictment 1703 

.">  lii.   Demurrer  to  indictment    1705 


TABLE    OF    CONTENTS.  XX111 

Pag  • 

§  517.  Pleas  in  abatement    1'1" 

518.  Plea  of  nolo  contendere   1  < !  ! 

519.  Plea  of  pardon 1 '  !  - 

520.  Plea   of   former   jeopardy,  acquittal    or   conviction    1712 

52 1 .  Proceedings  upon  pleas 1713 

522.  Bills  of  particulars    1713 

523.  Evidence  in  criminal  cases    1713 

524.  List  of  jurors  and   witnesses •  ■  •  •  172] 

525.  Place    of    trial     1722 

526.  Challenges    to    petit    jurors 1725 

527.  Trials    in    criminal    cases     1731 

528.  Summary    trials   or    offenses    against    navigation    laws    1735 

529.  Practice    in    prosecutions   under    the   civil    rights    laws    1736 

530.  New    trials •  ■  3  '■''' 

531.  Motion    in    arrest    of    judgment    1  < 38 

532.  Judgment    in    criminal    cases •  •  •  •  1  <  40 

533.  Suspension  of  judgment  in   criminal  cases    1-44 

534.  Execution  of  judgment    1744 

535.  Bills   of  exceptions    174!) 

536.  Writs   of   error    in   criminal   cases 1750 


CHAPTER  XXXII. 

REMOVAL  OF  CAUSES. 

§  537.  Removal  of  cases  from  the  State  courts  to  the  District  Courts 

of  the   United  States.     In  general    1754 

538.  Cases   which   are  the   subject   of   removal    17<i4 

539.  Removals    when    there    are-  improper    parties    plaintiff    1780 

540.  Removals  when   there  are   improper  parties  defendant    1781 

541.  Separable   controversies    1 ' s' 

542.  Parties  who  may  remove  cases   1 806 

543.  Time  of  removal    1813 

544.  Practice  on  removals  in  general   182. 

545.  Petition    for    removal    in    ordinary    cases    1832 

546.  Amendment  of  petition   •  •  1846 

547.  Bond    1 850 

548.  Order  of  State  courts  upon  removal 1850 

549.  Removal  for  prejudice  or  local  influence  in  general    1857 

550.  Removal  of  suits  between  citizens  of  the  same  State  claiming 

land  under  grants  of  different  States   1868 

551.  Removal  of  proceedings  against  revenue  officers,  house  officers, 

and    persons    having   defenses   under   the    revenue   laws    ....  1869 

552.  Removal   of   cases   where   the   defense   depends    upon   the   civil 

rights  laws 18,4 

553.  Filing   of    record    18<  > 

554.  Proceedings   in   the   State   courts   after  the   removal    1882 


Xxiy  TABLE    OF    CONTENTS. 

Pago 

§   555.   Proceedings  in   Federal   court   after   removal    1893 

556.  Remand    191n 

:..-)7.   Review    of   order    of    remand    1926 

558.   Review  of  order  denying  remand 19,5U 

551).  Proceedings  after  remand    1931 


CHAPTEK  XXXIII. 

ADMIRALTY  AND  SEIZURES. 

.")60.  Admiralty  jurisdiction    193- 

561.  Libel    ..: 194* 

.">02.   Security  for  libelant's  costs    ji)4( 

563.   Parties 194S 

.i64.  Mesne  process— Joinder  of  process  in  rem  and  in  personam  .  .  1950 

10  V? 
:>o;>.   Process  wi  rem  • ■"7U" 

566.  Cases  in  which  the  res  cannot  be  arrested 1953 

567.  Process  in  persoilam   

568.  Return  of  process  and  defaults    19,),J 

569.  Release  of  property  from   custody  of  marshal— Claim    1950 

570.  Security    for    defendant's    costs    1!,->' 

571.  Stipulation  for  vahn — Sureties 195^ 

572.  Bond  to  the  marshal    • iy,yj 

573.  Appraisement    ]!H'U 

.->74.    Petition   to  bring  in  additional   parties  under    Rule   59    I960 

375.  Answer,  when  filed— Defenses ;  Contributory  negligence,  limita- 
tions, laches   11)61 

,">70.  Laches  in  admiralty    1!)t'4 

.)  i  i .   1  ender ■ 

578.  Exceptions    and    amendments     •. 1(J,JJ 

579.  Amendments    , 106t^ 

580.  (  ross-libel 1967 

581.  Interrogatories    1968 

_,.,.-,  1900 

s>82.    I  rial    

583.    Evidence — Depositions     ; 

oS4.  Interlocutory   decree  and   reference    l9^- 

585.  Final     decree     1973 

586.  Sales   ]^d 

587.  Sales  as  perishable 1976 

588.  Lntervenors    1977 

."..so.   Petition  against  proceeds  of  sale   I9'  ' 

1070 

590.  Priorities LyiJ} 

591.  Libel  of  review   ]9'9 

_no     .  ,  1979 

.)02.  Appeals 

593.    Limitation   of  the  liability  of   shipowners    •  ■•    1!)8r> 

7,04.   Court  where  petition   for  limitation   of   liability  may  be  filed  1001 
595.  Privity    or   knowledge   of   owner    19!)'2 


8 


TABLE    OF    CONTENTS.  XXV 

Page 

S   596    The  libel  or  petition   for  limitation  of  liability    

507.  Surrender  to   secure   limitation  of  liability 

59S.  Appraisement  in  proceedings  for  limitation  of  liability    1998 

599    Injunctions    in    proceedings   to   limit   liability    2000 

600.  Injunctions    in    proceedings    to   limit    liability-Monition 

601.  Proofs  of  claim  in  proceedings  for  limitation  of  liability   . ...    : 

602.  Answer  in  proceedings  for  the  limitation  of  liability   2002 

603.  Trial   of   proceedings   for   limitation  of   liability    2004 

604.  Summary  proceedings  to  collect  sailors'  wages   - 

605.  Proceedings    in    prize    causes     - 

606.  Proceedings  on  seizures    

607.  The  Pure  Food   and   Drugs  Act    201,» 


CHAPTER  XXXIV. 

BANKRUPTCY. 

§  608.  Courts  of  bankruptcy   and   their   jurisdiction 


2020 


609.  Jurisdiction   in  bankruptcy   by   consent  ■    202< 

610.  Jurisdiction   of   courts   of   bankruptcy   over   plenary   suits....    2029 

611.  Extra-territorial    jurisdiction    of    courts    of    bankruptcy     ....    2034 

612.  Ancillary    jurisdiction    in    bankruptcy     2036 

613    Jurisdiction  of  state  courts  in  cases  affecting  bankruptcy  pr<>- 

..  2037 

ceedings   • 

614.  Practice   in  bankruptcy   proceedings  in  general    2041 

615    Jurisdiction   in  bankruptcy   as   affected   by   residence   or    place 

,  ,       .  20  15 

of  business    • 

616.  Parties   in  bankruptcy    

til  7.  Corporations  who  may  be  bankrupts 

615.  Partnerships  and  unincorporated  associations    2051 

619.  Creditors  who   may   petition  for   involuntary   bankruptcy    20.., 

620.  Acts    of   bankruptcy    

6->l     Fraudulent  transfers.     Concealment  or  removal  of  property  as 

.        .  ,       ,  +  2064 

acts  of  bankruptcy 

622.  Transfer   of   property   with   the    intent   to   create   a   preference  2066 

623.  Preferences  by  legal  proceedings  as  acts  of  bankruptcy    206') 

624.  General   assignments    for    the   benefit    of    creditors    as    acts   of 
bankruptcy 


625.  Appointments  of   receivers  or  trustees   as  acts   of   bankruptcy  2072 

626.  Admission  in  writing  as  act  of  bankruptcy   2074 

627.  Petitions    in    bankruptcy     -'  "' 

628.  Amendments  to  petitions  in  bankruptcy    -,,s- 

629.  Process    and   notices    to    creditors    

630    Pleadings  by  the  respondents  in  bankruptcy   2089 

->0'll 

631.  Warrants  of  seizure    

2093 

632.  Arrest  of  bankrupt    

633.  Injunctions  in  aid  of  bankruptcy  proceedings   2094 


XXVI  TABLE    OF    CONTEXTS. 

Page 

§   034.  Receivers   in  bankruptcy    2102 

635.  Summary    orders    for    the   payment    of    money    or    delivery    of 

property 2110 

636.  Dismissal  of  petitions  21  IS 

(137.  Trials    -1  ,!l 

638.  References 2123 

639.  K\  idence   and    examinations    2132 

640.  Meetings  of  creditors  and  appointments  of  trustees    2143 

ii41.  Qualifications   of  trustees 214s 

642!   Duties  of  trustees    214!) 

'     043.  Title   and    powers   of   trustees    2159 

044.  Right  of  trustee  to  set  aside  preferences  and  liens   210S 

645.    Proof    and    allowance    of    claims     21X0 

040.  Time   for    proof   of    claim    2108 

047.    Provable  claims    : 2201 

648.  Set-offs    and    counter-claims    2207 

04!).   Priorities   and   liens    2209 

650.  Exemptions  of  bankrupt  property   2217 

651.  Exemption   of  bankrupt   from   arrest    2224 

052.   Declaration   and    payment   of   dividends    2220 

653.  ( (impositions 2-29 

054.  Reopening    estates    in    bankruptcy    2235 

055.  Discharge  of  bankrupts •  •  •  •  2235 

656.  Grounds    for    refusing    discharge     2240 

057.  <  ^ligations  released  by  discharge    2253 

05S.  Revocation  of  discharge 2258 

659.  ( losts  and  fees 2200 

660.  Clerk's  fees 2204 

661.  Marshall's  fees   2205 

002.  Referee's  fees 2200 

003.  Trustee's  fees 22os 

004.  Receiver's  fees 22, 0 

065.  Attorney's  fees — •'- 

000.   Review    by    Circuit    Courts    of    Appeals    2277 

067.  Practice  on  appeals  in  bankruptcy   2285 

668.  Practice  upon  petition  for  a  revision   2291 

669.  Review   by   the  Supreme  Court  of  the   United  States    2294 


VOLUME  III. 

CHAPTER  XXXV. 

COURT  OF  CLAIMS. 

§  670.  Organization   of   Court   of   Claims    2299 

671.  Jurisdiction  of  Court  of  Claims    2300 


TABLE    OF    CONTENTS.  XXV11 

Page 

§  672.  Statute  of  limitations  in  Court  of  Claims   2313 

673.  Petitions  anil  parties  plaintiff  in  Court  of  Claims    2315 

674.  Pleadings  by  defendant  in  Court  of  Claims    2325 

675.  Amendments  in  Court  of  Claims    2326 

676.  Attorneys  in  Court  of  Claims    j:!2'.' 

677.  Evidence  before  the  Court  of  Claims   2330 

678.  Motions  and  notice  in  Court  of  Claims    2:140 

679.  Abatement  and   revivor    i.U  1 

680.  Discontinuance  and  withdrawal  of  papers   2-'!4  I 

681.  Trials  in  Court  of  Claims   2342 

682.  References   by   Court    of   Claims    2344 

683.  New  trials   2345 

684.  Judgments    in    ( kmrt   of    Claims    2349 

685.  Costs  in  Court  of  Claims    2352 

6S6.  Appeals  from  Court  of  Claims 2352 


CHAPTER  XXXVI. 

.    WRITS   OF    ERROR    AND   APPEALS. 

§  687.  Writs  of  error  ami  appeals   in  general    2:~!ofi 

688.    Review    by    the    Supreme    Court    of    decisions    of    the    Federal 

Courts    2361 

6S9.  Certification  to  the   Supreme   Court   by  the  Circuit  Courts  of 

Appeals 2:!7S 

690.  Review  of  decisions  of  (  ourts  of  Claims  2385 

691.  Review   bv   Supreme   Court   of   decisions  of   the   Courts   of   the 


District  of  Columbia,  Alaska,  and  the  Islands    2385 

692.  Writs  of  error   from   the   Supreme  Court  to  the  State   courts  2393 

693.  Writs   of   error    from    and    appeals   to    the   Circuit    (  ourts   of 

Appeals    24H11 

694.  Appeals    to    District    Courts    24 IS 

695.  Judgments,    orders,    and    decrees    which    may    be    reviewed    by 

writs  of  error  or  appeals 2421 

696.  Value  of  the  matter  in  dispute  upon  writs  of  error  and  appeals  2436 

697.  Parties     to  writs  of  error  and  appeals    2445 

698.  Time  within  which   writs  of  error  and  appeals  must  be  taken  2456 

699.  Writs  of  error 2462 

700.  Appeals    2470 

701.  Assignments  of  errors 2473 

702.  Security  on  writ  of  error  or  appeal    2479 

703.  Supersedeas     2482 

704.  Return  to  writ  of  error  or  appeal    2494 

705.  Motions   to   dismiss   appeals   and    writs   of   error    2507 

706.  Printing    the    record     2521 


XXV111  TABLE    OF    CONTENTS. 

Pagr 
§   7('7.  Argument    of   appeals   and   writs  of   error    2524 

7ns.  Rehearings   1:>:>- 

709.  Further   proof   on   appeal    2535 

710.  Amendments   in  court  of  review    2538 

711.  Decisions  on  writs  of  error   and   appeals    2538 

712.  .Mandate     2558 

713.  Second    writ    of   error   or  appeal    2570 


Appendix 


2577 


APPENDIX. 
I. 

FORMS  IN  CIVIL  CASES  AT  COMMON  LAW  AND  IN  EQUITY. 

Page 

I.     Bill  in  equity  in  patent  case 2577 

*  II.     Modern  bill  in  equity  in  patent  case 2581 

III.  Bill  in  equity   in  copyright  case   2581 

IV.  Petition  or  bill  under  anti -monopoly  law    2592 

Y.     Complaint  at  common  law  under  anti-monopoly  law  .  .  .'.  2602 

Yl.     Bill   in   equity   for   appointment   of   receiver    2608 

VII.      Friendly   liill  for  appointment   of  receiver    2619 

VIII.     Bill   in  equity  for  the  appointment   of  ancillary  receiver  2627 

IX.     Petition  for  appointment  of  receiver  at   foot   of  decree..  2632 

X.     Bill  of  foreclosure  of  railway  mortgage   2640 

XL     Xotiee  of  filing  and  petition  against  United  States  under 

Tucker  act  of  March  3.  1SS7 2652 

XII.      Answer    2054 

XIII.  Answer  in  copyright  suit  in  equity 2656 

XIV.  Answer  to  friendly  bill  for   receiver   2669 

XY.     Amendments  to  bill  in  equity   2670 

XVT.      Bill   of   revivor    2072 

XVII.      Supplemental    bill    2075 

XVIII.     Xotiee  of  motion  to  dismiss  Mil    2077 

XIX.     Writ  of  injunction  against  strikers   2077 

XX.     (Oder  to  show  cause  against   appointment  of  receiver  at 

foot    of   decree    2679 

XXI.     Order  appointing   receiver  at  foot  of  decree    2680 

XXII.     Order  appointing  receivers  of  street  railway  company   ..  2682 

XXIII.  Order  appointing  ancillary   receiver    2684 

XXIV.  Order   extending    receivership    26S0 

XXV.     Order   for  examination   of  third   party  by   receivers    2687 

XXVL      Petition   by   lessor  corporation  for  extension   of  receiver- 
ship   for    it*    protection     20SS 


TABLE    OF    CON  t'KXTS. 


XXIX 


XXVII. 

XXVIII. 

XXIX. 

XXX. 

XXXI. 

XXXII. 

XXXII 1. 

XXXIV. 

XXXV. 

XXXVI. 

XXXVII. 

XXXVIII. 

XXXIX. 

XL. 

XLI. 

XLII. 

XLIII. 

XLIV. 

XLV. 

XLVI. 

XLV  1 1. 

XLVIII. 

XLIX. 

L. 

LI. 

LII. 

L1II. 

LIV. 

LV. 

LVI. 

LVII. 
LVIII. 

LIX. 
LX. 

LXI. 

LXII. 

LXIII. 

LX7V. 

LXV. 

LXVI. 

LXVII. 
LXVIJl. 


Pack 

Xotice  of  deposition  under  revised  statutes   26!)3 

Order  for  dedimus  potestatem    2693 

Letters    rogatory    2695 

Petition   for   subpoena  dace*   t<<n»i    in   aid   of  deposition 

de  bene  esse    2696 

Master's    warrant    or    summons    :^2702 

Master's  warrant  or  summons  in  patent  ease    27o:i 

Xotiee  accompanying  draft  of  master's    report    -7' » \ 

Account    of    infringement    of    patent    2705 

Order  appointing  referee  to  try  action  at  common  law   .  .  2705 

Stipulation   for  reference  of  action  at  common   law    ....  2706 

Order  adjudging  party  guilty  of  contempt   2707 

Order   fining   defendant   for   contempt    2707 

Petition  for  removal  for  difference  of  citizenship   2708 

Xotice  of  application  for  removal -  —  7<»V* 

Petition   for   removal  for  a   separable  controversy    2710 

Petition  for   removal   because  of   prejudice   and    local   in- 
fluence       2714 

Bond   on   removal    2717 

Pinal   record    in   equity    2720 

Decree   for    injunction    and   accounting    in    patent    case    .  .  -J721 

Decree    27-2 

Pill   of   exceptions    -727 

Writ  of  certiorari    2732 

Petition  for  writ  of  habeas  corpus  -1~'-V1 

Writ  of  habeas  corpus 2735 

Writ  of  certiorari    " 1~'-'a\ 

Appeal   and  allowance   27:it> 

Citation    on    appeal    27:>7 

Writ  <>l"  error  from  supreme  court  to  district  court   ....  27.17 
Writ   of   error   from   supreme   court   to   circuit   court    of 

appeals     2738 

Writ   of  error   from   circuit   court   of   appeals  to   districl 

court     27:11' 

Writ  of  error  to  state  court   2739 

Petition    for    writ   of   error   to   state  court    274U 

Prayer    for    reversal    2743 

Xotice  to   join   in  writ  of  error   —74-1 

Certificate  of  quest  ion  of  jurisdiction  274t> 

Supersedeas  bond    2747 

Assignment    of    errors    274S 

( lertificate    by    clerk   to   transcript    27  4'.' 

Citation  on   writ  of  error    2740 

Petition  for  writ  of  certiorari  to  circuit  court  of  appeals 

and    proceedings  upon   same    27">o 

Answer  to  petition   for   writ  of  certiorari    27-V.* 

'Motion  for  leave  to  file  petition  tor  mandamus 27*»:{ 


XXX 


TABLE    Ol-    CONTENTS. 


Page 

LXIX.     Petition  for  mandamus  to  set  aside  receivership   2764 

LXX.  Return  of  order  to  show  cause  against  issue  of  mandamus  2772 

LXXT.     Writ    of    mandamus    277o 

LXXII.     Motion  to  dismiss  appeal   2777 

LXX)  1 1.     Motions  to  dismiss   and  to  affirm    2770 

LXRIV.  Xotice  of  submission  of  motions  to  dismiss  and  to  affirm  2780 

FORMS  IX  CRIMINAL  PROCEDURE. 

I.     Complaint   for    warrant    2781 

II.     Warrant  of  arrest   2781 

III.  Mittimus   pending  examination    27S2 

IV.  Final   mittimus    2782 

V.     Recognizance  of  accused  pending  examination    27S."> 

VI.     Final   recognizance  of  accused    27*4 

VII.      Recognizance  of  witnesses    2785 

VTH.     Certificate    of   proceedings    2785 

IX.     <  (Hiiplaint    for   extradition    warrant    2786 

X.      Extradition  warrant    27S6 

XI.     Certificate  of  extradition  proceedings   27*7 

XII.  Proceedings  upon  application  of  poor  convict  for  discharge  27^* 

XIII.  Mandate  to  jailer  for  the  production  of  poor  convict...  27S'.i 

XIV.  Oath    of   poor   convict    2789 

XV.     Certificate  of  discharge  of  poor  convict   2700 

MARSHALS'  AND  CLERKS"  FORMS. 

XVI.     Bench  warrant  or  capias    2700 

XVIT.     Return  to  bench  warrant  or  capias    2790 

XVIII.     Capias   pro   tine    2701 

XIX.      Return    to   capias   pro   fine    2791 

XX.     Attachment  for  contempt   2701 

XXI.      Return  to  attachment    2702 

XXII.  Warrant  for  removal  of  prisoner  to  another  district  ....  2702 

XXTII.     Return  to  warrant   for  removal  of  prisoner    2702 

XXIV.     Receipt  of  marshal  for  prisoner    2703 

XXV.     Venire   facias    2793 

XXVI.     Commitment    to   penitentiary    270! 

XXVII.     Marshal's   return    to   commitment   to   penitentiary    2704 

XXVIII.     Criminal    information    27(>4 

XXIX.      indictment. — General  form    2703 

XXX.      indictment  for  offense  on  the  high  seas    2795 

XXXI.  Indictment    fur   offense   committed   at   a    place   within   ex- 
clusive jurisdiction  of  the  United  States   2796 

XXXTT.  Consolidated    indictment   for   violation    of  national   hank- 
ing laws   2797 

XXXIII.  Petition    for    removal   of   criminal    case   from    state   court 

under  section  643,  United  St.ites  Revised  Statutes   .  .  .  282.°. 


TABLE   02?    CONTENTS. 


XXXI 


XXXIV.     Certiorari  for  removal  of  case  from  state  court  .... 
XXXV.     Appearance  bond  on  writ  of  error  in  criminal  cases  ., 


Pace 
2824 
2824 


ADMIRALTY  FORMS. 


I.     Libel  in  rem    2£'26 

II.     Interrogatories  annexed  to   libel    2829 

III.  Libel   in   personam    with   clause   of   foreign   attachment..    2829 

IV.  Stipulation  for  libelant's  costs 2834 

V.     Claim  of  owner 2835 

VI.     Claim    of   agent    2835 

VI T.     Stipulation  for  claimant'-  costs   2836 

VIII.     Stipulation  for  value 2836 

IX.     Bond  to  marshal    2S37 

X.     Order  appointing  appraisers    2^38 

XL     Notice   to    appraisers    * 2838 

XII.     Oath  of  appraisers  2839 

XIII.  Notice   of   appraisement 2S3!i 

XIV.  Report  of  appraisers   2839 

XV.     Exceptions   to   libel    2N3!t 

XVI.     Answer    in    admiralty    2840 

XVII.  Petition  to  bring  in  vessel  under  Supreme  Court  Rule  59  2*42 

XVIII.      Interlocutory   decree   and  default    in   admiralty    2843 

XIX.     Interlocutory  decree  in  admiralty    2843 

XXII.      Final  decree   in   admiralty     2S44 

XXIII.  Final  decree  in  admiralty    2S44 

XXIV.  Final   decree   in    admiralty    2845 

XXV.  Final  decree  in  admiralty     for    summary    judgment    on 

bond  to  marshal 2846 

XXVI.     Final  decree  and  order  of  sale  in  admiralty   2S47 

XXVII.     Notice  of  appeal  in   admiralty    2S47 

XXVIII.      Petition    on    appeal    2848 

XXIX.     Order  for  mandate   in  admiralty    2849 

XXX.      .Mandate    in    admiralty    2S4<! 

XXXI.     Final  decree  on  mandate  in  admiralty   2850 

XXXII.     Libel  or  petition   for  limitation   of  liability    2850 

XXXIII.  Order  for  transfer  to  trustee   2853 

XXXIV.  Transfer  to  trustee    2854 

XXXV.      Order    for    monition     "s-,-. 

XXXVI.     Monition     2856 

XXXVII.  Final  decree  in  proceedings  for  limitation  of  liability  in 

admiralty     2857 

II. 

Equity  Rules Oo60 


XXX11  TABLE   OF    CONTESTS. 

III. 

Page 
Admiralty  Rules 2883 

IV. 

Supreme   Court  Rules    2895 

V. 

Rules  of  the  Circuit  Courts  of  Appeals   2914 

Admiralty  Rules  of  the  Second  and  Ninth  Circuit  2950 

VI. 

Rules  of  Court  of  Claims  2964 

VII. 

Bankruptcy  Law    2993 

VIII. 

General  Orders  in  Bankruptcy   3034 

FORMS  IX  BANKRUPTCY. 

1.  Debtor's   petition    3047 

2.  Partnership  petition   3060 

3.  Creditors'    petition    3063 

4.  Order  to  show  cause  upon  creditors'  petition    3064 

5.  Subpoena  to  alleged  bankrupt 3065 

6.  Denial  t>\  bankruptcy    3066 

7.  Order  for  jury  trial    3066 

8.  Special  warrant  to  marshal 3067 

9.  Bond   of   petitioning  creditor    3068 

10.  Bond    to    marshal    3068 

1 1.  Adjudication  that  debtor  is  not  bankrupt 306!) 

12.  Adjudication  of    bankruptcy     3070 

13.  Appointment,  oath,  and  report  of -appraisers    3070 

14.  Orders  of  reference      3071 

15.  Order  of  reference  in    judge's  absence    3072 

16.  Referee's  oath  of  office 3073 

17.  Bond  of  referee    3073 

18.  Notice  of  first  meeting  of  creditors   3074 

19.  List  of  debts  proved  at  first  meeting 3074 

20.  General  letter  of  attorney  in  fact  when  creditor  is  not  represented 

by   attorney    at    law 3075 

21.  Special  letter  of  attorney   in  fact   3076 

22.  Appointment   of  trustee  by  creditors    3076 


table  of  contents.  xxx111 

Page 

23.  Appointment  of  trustee  by   referee    3077 

24.  Notice  to  trustee   of  his   appointment    3077 

25.  Bond  of  trustee    3078 

2G.  Order  approving  trustee's  bond    3078 

27.  Order  that    no   trustee    be    appointed    3070 

28.  Order  for  examination  of  bankrupt    3079 

29.  Examination  of  bankrupt  or  witness  3080 

30.  Summons  to  witness   3080 

31.  Proof  of  unsecured   debt    308 1 

32.  Proof  of  secured    debt    308 1 

."{3.  Proof  of  debt  due  corporation   , 3082 

34.  Proof  of  debt  by    partnership    3083 

35.  Proof  of  debt   by  agent  or  attorney    3083 

36.  Proof  of  secured    debt    by    agent     3084 

37.  Affidavit  of  lost  bill,  or  note   3085 

38.  Order  reducing  claim    3086 

30.   ( )rder    expunging   claim .  3086 

40.  List  of  claims   and   dividends  to  lie  recorded   by  referee   and   by 

him  delivered  to  trustee   3087 

41 .  Notice  of  dividend 3088 

42.  Petition   and   order   for  sale   by   auction    of   real   estate    3088 

43.  Petition  and  order  for  redemption   of   property   from    lien    3089 

44.  Petition   and   order   for   sale  subject  to   lien    3090 

45.  Petition  and  order  for  private  sale    3090 

46.  Petition  and  order  for  sale  of  perishable  property  3001 

47.  Trustee's  report  of  exempted   property    3092 

4S.  Trustee's  return  of  no  assets   .  . 3092 

40.  Account  of  trustee 3093 

50.  Oath  to  final  account  of  trustee    3094 

51.  Order  allowing  account  and  discharging  trustee    3094 

52.  Petition   for   removal  of  trustee    3005 

53.  Notice  of  petition  for  removal  of  trustee   3005 

54.  Order  for   removal  of  trustee    3096 

.^^>.  <  >rder  for  choice  of  new  trustee    3096 

56.  Certificate  by  referee  to  judge 3097 

57.  Bankrupt's  petition   for  discharge   3007 

58.  Specifications   of   grounds   of   opposition    to    bankrupt's   discharge  3000 

5!t.  Discharge  of  bankrupt 3099 

60.  Petition  for  meeting  to  consider  composition    3100 

(il.  Application   for  continuation  of  composition    31C9 

62.  Order  confirming  composition   3101 

63.  Order  of  distribution  on  composition   3102 


FEDERAL  PRACTICE 


VOLUME   I. 
CHAPTER  I. 

ORIGINAL    JURISDICTION". 

§  1.  Constitutional  provisions  concerning  the  courts  of 
the  United  States.  Sec.  1.  The  Constitution  of  the  United 
States  ordains:  "Article  III,  Section  1.  The  judicial  Power 
of  the  United  States,  shall  be  vested  in  one  supreme  court,  and 
in  such  inferior  Courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish.  The  Judges,  both  of  the  supreme  and 
inferior  Courts,  shall  hold  their  Offices  during  good  Behaviour, 
and  shall,  at  stated  Times,  receive  for  their  Services,  a  Compen- 
sation, which  shall  not  be  diminished  during  their  Continuance 
in  Office.  Section  2.  The  judicial  Power  shall  extend  to  all 
Cases,  in  Law  and  Equity,  arising  under  this  Constitution,  the 
Laws  of  the  United  States,  and  Treaties  made,  or  which  shall 
be  made,  under  their  Authority; — to  all  Cases  affecting  Ambas- 
sadors, other  public  Ministers  and  Consuls ; — to  all  Cases  of  ad- 
miralty and  maritime  Jurisdiction; — to  Controversies  to  which 
the  United  States  shall  be  a  Party; — to  Controversies  between 
two  or  more  States; — between  a  State  and  Citizens  of  another 
State  ; — between  Citizens  of  different  States ; — between  Citizens 
of  the  same  State  claiming  lands  under  Grants  of  different  States. 
and  between  a  State,  or  the  Citizens  thereof,  and  foreign  States, 
Citizens  or  Subjects.  In  all  Cases  affecting  Ambassadors,  other 
public  Ministers  and  Consuls,  and  those  in  which  a  State  shall 
be  Party,  the  supreme  Court  shall  have  original  Jurisdiction. 
In  all  the  other  Cases  before  mentioned,  the  supreme  Court 
shall  have  appellate  Jurisdiction,  both  as  to  Law  and  Fact,  with 
such  Exceptions,  and  under  such  Regulations  as  the  Congress 
shall  make.  The  Trial  of  all  Crimes,  except  in  Cases  of  Im- 
peachment, shall  be  by  Jury ;  and  such  Trial  shall  be  held  in 
Fed.  Prac.  Vol.  I.— 1. 


2  ORIGINAL    JURISDICTION.  [§    2 

the  State  where  the  said  Crimes  shall  have  been  committed; 
but  when  not  committed  within  any  State,  the  Trial  shall  be  at 
such  Place  or  Places  as  the  Congress  may  by  Law  have  directed. 
Section  3.  Treason  against  the  United  States,  shall  consist  only 
in  levying  War  against  them,  or  in  adhering  to  their  Enemies, 
giving  them  Aid  and  Comfort.  ]S«o  Person  shall  be  convicted 
of  Treason  unless  on  the  Testimony  of  two  Witnesses  to  the 
same  overt  Act,  or  on  Confession  in  open  Court.  The  Congress 
shall  have  Power  to  declare  the  Punishment  of  Treason,  but  no 
Attainder  of  Treason  shall  work  Corruption  of  Blood,  or  For- 
feiture except  during  the  Life  of  the  Person  attainted." 

The  jurisidetion  of  the  Courts  of  the  United  States  is  restrict- 
ed by  the  Eleventh  Amendment,  which  ordains:  "The  Judicial 
power  «>f  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one 
of  the  United  States  by  Citizens  of  another  State,  or  by  Citizens 
or  Subjects  of  any  Foreign  State." 

The  Sixth  Amendment  ordains :  "In  all  criminal  prosecu- 
tions, the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law.  and  to  be  informed  of  the  nature 
and  cause  of  the  accusation;  to  be  confronted  with  the  witnesses 
against  him  :  to  have  compulsory  process  for  obtaining  Witnesses 
in  his  favor,  and  to  have  the  Assistance  of  Counsel  for  his 
defense."  The  Seventh  Amendment:  "In  suits  at  common 
law,  where  the  value  in  controversy  shall  exceed  twenty  dollars, 
the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried 
by  a  jury  shall  be  otherwise  re-examined  in  any  Court  of  the 
United  States,  than  according  to  the  rules  of  the  common  law." 
The  Eighth  Amendment:  "Excessive  bail  shall  not  be  re- 
quired, nor  excessive  fines  imposed,  nor  cruel  and  unusual  pun- 
ishments inflicted." 

§  2.  Enumeration  of  the  courts  of  the  United  States. 
The  Courts  of  the  United  States  are,  the  Supreme  Court,  the 
Circuit  Courts  of  Appeals,  the  Court  of  Customs  Appeals,  the 
District  Courts,  the  Court  of  Claims  and  the  Commerce  Court.  * 

§  2.  iThe  Circuit  Courts  of  the  District  Courts.  Ex  yarle  U.  S.,  226 
United  States  have  been  abolished  U.  S.  420,  by  the  Judicial  Code,  en- 
and  their  powers  transferred  to  the       acted   March    3,    1911,    §§    289,    291, 


§  3]    ORIGINAL  JURISDICTION  AND  TERMS  OF  SUPREME  COURT. 


The  statutes  of  the  United  States  have  also  created  certain 
courts  which  are  usually  considered  not  to  be  courts  of  the 
United  States.2  These  are,  the  District  Court  of  Alaska,  the 
District  Court  of  the  United  States  for  Porto  Kico,  the  District 
Court  of  Hawaii,  the  Supreme  Court  of  the  Philippines,  the 
United  States  Court  for  China,  the  Supreme  Court  of  the  Dis- 
trict of  Columbia  and  the  Court  of  Appeals  of  the  District  of 
Columbia.  The  Board  of  General  Appraisers  and  the  United 
States  Commissioners  have  also  certain  judicial  powers,  both 
civil  and  criminal  which  are  hereinafter  considered. 

§  3.  Original  Jurisdiction  and  Terms  of  the  Supreme 
Court.  The.  jurisdiction  of  the  Supreme  Court  of  the  United 
States  is  original  and  appellate.  Its  appellate  jurisdiction  is 
hereinafter  considered.1 

The  Supreme  Court  has  original  jurisdiction  both  at  law  and 
equity  in  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  State  is  a  party,2  except  where 
a  citizen  of  the  same  State  is  a  party,  when  it  has  no  jurisdic- 
tion. 3  The  jurisdiction  of  the  Supreme  Court  over  contro- 
versies to  which  a  State  is  a  party  is  exclusive,  except  as  regards 
controversies  between  a  State  and  its  citizens,  or  between  a 
State  and  citizens  of  other  States.4  The  Supreme  Court  has 
exclusively  all  such  jurisdiction  of  suit  sagainst  amabssadors 
or  other  public  ministers,  or  their  domestics  or  domestic  serv- 
ants, as  a  court  of  law  can  have  consistently  with  the  law  of 
nations;  and  original,  but  not  exclusive,  jurisdiction  of  all  suits 
brought  by  ambassadors,  or  other  public  ministers,  or  in  which 
a  consul  is  a  party.5     A  State  can  sue  the  United  States  with 


36  St.  at  L.  1087.  It  is  probable 
that  the  Commerce  Court  will  be 
destroyed  before  this  work  is 
through  the  press. 

2  American  Insurance  Co.  v.  Can- 
ter, 1  Peters,  511,  7  L.  ed.  242; 
Benner  v.  Porter,  9  How.  235,  13  L. 
ed.  11  9;  Clinton  v.  Englebrecht.  13 
Wall.  434.  20  L.  ed.  659;  McAllister 
v.  U.  S.  141  U.  S.  174,  35  L.  ed. 
693 ;  Romeu  v.  Todd,  206  U.  S.  358, 
368,  51  L.  ed.  1093,  1097  (United 
States  Court  for  Porto  Rico).  But 
it  has  been  held  that  the  Supreme 


Court  of  the  District  of  Columbia 
is  a  court  of  the  United  State?  with- 
in the  meaning  of  U.  S.  R.  S.  §  714. 
James  v.  U.  S.  202  U.  S.  401.  50  L. 
ed.  1079. 

§  3.  l  See  Chapter  on  "Writs  of 
Error  and  Appeals." 

2  Constitution,  art.  III. 

3  California  v.  Southern  Pac.  Co., 
157  U.  S.  229,  39  L.  ed.  683. 

4,Tud.  Code,  §  233,  36  St.  at  L. 
1087. 

5  Ibid.  36  St.  at  L.  1087;  Bors 
v.  Preston.   Ill   V.  S.  252,  28  L.  ed. 


ORIGINAL    JURISDICTION. 


[§  3 


its  consent  to  establish  or  to  protect  a  right  of  property  owned 
by  the  State,6  but  not  one  in  which  the  State  has  no  interest 
although  a  part  of  its  citizens  are  interested  therein.7  A  State 
cannot  sue  the  United  States  without  the  latter*s  consent.8  A 
State  cannot  sue  to  enforce  or  protect  a  right  which  is  purely 
political.9  A  State  cannot  obtain  an  order  or  judgment  com- 
pelling a  governor  of  another  State  to  return  a  fugitive  from 
labor  or  justice.10  A  State  may  tile  a  bill  against  another  State 
to  settle  and  establish  a  disputed  boundary.11  In  such  a 
suit  the  United  States  has  an  interest  in  the  controversy,  and 
the  attorney-general  on  his  application  may  intervene,  appear 
on  behalf  of  the  United  States,  adduce  proofs  and  be  heard 
in  argument  without  making  the  United  States  a  party  in  the 
technical  sense  of  the  term ;  but  he  has  no  right  to  interfere  in 
the  pleading  or  evidence  or  admissions  of  either  of  the  States ; 
and  in  such  a  suit  the  judgment  cannot  be  either  for  or  against 
the  United  States.12  A  State  may  sue  another  State  for  an 
injunction  against  the  diversion  of  the  waters  of  a  stream  flow- 
ing through  both  which  unreasonably  interferes  with  their  use 
for  irrigation,13  and  at  least  when  the  stream  is  not  navigable, 
the  United  States  cannot  intervene.14    A  State  may  sue  another 


419;  U.  S.  v.  Ravara,  2  Dall.  297, 
1  L.  ed.  38S:  Gittings  v.  Crawford, 
Taney.  I  :  St.  Luke's  Hospital  v. 
Barclay,  3  Blatclif.  258;  Graham 
v.   Stricken.   4   Blatclif.    50. 

6  Minnesota  v.  Hitchcock,  185  U. 
S.  373,  4(5  L.  ed.  954. 

7  Kansas  v.  U.  S..  204  U.  S.  331, 
.11   L.  ed.  510. 

8  Mississippi  v.  Johnson,  4  Wall. 
475.  478.  IS  L.  ed.  437. 

9  Mississippi  v.  Johnson,  4  Wall. 
475,  IS  L.  ed.  437;  Georgia  v.  Stan- 
ton, 6  Wall.  50,  18  L.  ed.  721; 
§  79,  infra. 

10  Kentucky  v.  Dennison,  24  How. 
66,  16  L.  ed.  717. 

11  Kew  Jersey  v.  New  York,  3 
Pet.  461,  7  L.  ed.  741  :  s.  C,  5  Pet. 
284,  8  L.  ed.  127:  -.  ...  6  Pet.  323, 
8     L.     ed.     414;     Massachusetts     v. 


Rhode  Island,  12  Pet.  755,  9  L.  ed. 
1272:  Rhode  Island  v.  Massachu- 
setts, 13  Pet.  23.  10  L.  ed.  41; 
Rhode  Island  v.  Massachusetts,  15 
Pet.  233,  10  L.  ed.  72];  s.  c,  4 
How.  591,  11  L.  ed.  1116:  Missouri 
v.  Iowa,  7  How.  UG0.  12  L.  ed.  861; 
Florida  v.  Georgia,  17  How.  478,  15 
L.  ed.  181:  Virginia  v.  West  Vir- 
ginia, 11  Wall.  39,  20  L.  ed.  67: 
Missouri  v.  Iowa.  HI  How.  1,  13 
L.  ed.  303;  AJabama  v.  Georgia, 
23  How.  505,  16  L.  ed.  556;  Mis- 
souri v.  Kentucky..  11  Wall.  395,  20 
L.  ed.  116. 

12  Florida    v.    Georgia,    17    How. 
478,  15  L.  ed.  181. 

13  Kansas   v.   Colorado,   2Q6   U.   S. 
46,  51  L.  ed.  956. 

"Kansas  v.  Colorado,  206  U.  S. 
46,  51  L.  ed.  956. 


3]    ORIGINAL  JURISDICTION  AND  TERMS  OF  SUPREME  COURT.  5 


State  15  and  a  public  16  or  private  17  corporation  of  the  latter  to 
enjoin  a  public  nuisance  affecting'  a  large  number  of  the  com- 
plainant's citizens;  such  as  the  pollution  of  water18  or  the  dis- 
charge of  noxious  gases  over  its  territory.19  Otherwise,  it  seems 
that  a  State  cannot  maintain  a  suit  to  redress  the  wrongs  of  a 
part  of  its  own  citizens.20  for  example,  to  enjoin  a  railway 
company  from  charging  unreasonable  rates  within  its  jurisdic- 
tion ; 21  nor,  it  has  been  held,  to  enjoin  the  governor  and  health 
officer  of  another  State  from  enforcing  unreasonable  quarantine 
regulations,  which  interfere  with  commerce  between  these 
States.22  A  State  cannot  file  a  bill  in  the  Supreme  Court  of  the 
United  States  to  enforce  a  penal  statute,  such  as  a  bill  to  pre- 
vent a  railway  company  from  violating  its  prohibition  law;23 
nor  to  enforce  a  judgment  for  penalties  rendered  in  its  courts 
against  a  foreign  corporation.24  A  State  cannot  sue  another 
State  to  collect  bonds  and  coupons  of  the  defendant  which  have 
been  assigned  to  the  plaintiff  by  its  own  citizens  in  order  that  it 
may  collect  them  and  pay  the  proceeds  to  the  assignors.  25  But, 
a  State  may  sue  another  State  to  collect  bonds  that  have  been 
given  to  the  plaintiff  absolutely.  26  A  State  may  sue  for  an  in- 
junction against  the  collection  by  citizens  of  other  States  of  cer- 
tain bonds  of  the  United  States  which  are  the  property  of  such 
State,  and  for  the  delivery  to  it  of  such  bonds,  and  for  a  declara- 
tion that  the  contract  under  which  the  defendants  claim  a  title 


"Missouri  v.  Illinois,  180  U.  S. 
•208:  s.  c,  200  U.  S.  496. 

16  Missouri  v.  Illinois,  180  U.  S. 
20S.  45  L.  ed.  497;  S.  c,  200  U.  S. 
496,  50  L.  ed.  572. 

17  Georgia  v.  Tennessee  Copper 
Co..  20G  U.  S.  230,  51  L.  ed.  1038. 

18  Missouri  v.  Illinois,  180  U.  S. 
208,  45  L.  ed.  497;  s.  c,  200  U.  S. 
496,  50  L.  ed.  572. 

19  Georgia  v.  Tennessee  Copper 
Co..  200  U.  S.  230,  51  L.  ed.  1038. 

20  Louisiana  v.  Texas,  176  U.  S. 
1.  44  L.  ed.  347:  Oklahoma  v.  Atchi- 
son, T.  &  S.  F.  Ryl  Co.,  220  U.  S. 
277,    55    L.    ed.    465;    Oklahoma    v. 


Gulf,  C.  &  S.  F.  Ry.  Co.,  220  U.  S. 
290,  55  L.  ed.  469. 

21  Oklahoma  v.  Atchison,  T.  &  S. 
F.  Ry.  Co..  220  U.  S.  277,  55  L.  ed. 
465. 

22  Louisiana  v.  Texas,  176  U.  S.  1, 
44  L.  ed.  347. 

23  Oklahoma  v.  Gulf,  C.  &  S.  I". 
Ry.  Co..  220  V.  S.  290,  55  L.  ed.  469. 

24  Wisconsin  v.  Pelican  Ins.  Co., 
127  U.  S.  265,  32  L.  ed.  239. 

25  New  Hampshire  v.  Louisiana. 
10S  U.  S.  70,  27  L.  ed.  650. 

26  South  Dakota  v.  North  Caro- 
lina. 192  U.  S.  286,  48  L.  ed.  44S; 
infra,  §  104. 


6 


ORIGINAL    JURISDICTION. 


[§   3 


to  such  bonds  is  void  27  A  State  may  maintain  a  bill  against 
citizens  of  other  States  to  enforce  its  title  to  a  railroad.28  The 
Supreme  Court  has  no  jurisdiction  of  a  suit  by  a  State  against  a 
citizen  of  the  District  of  Columbia  ;  29  nor  of  a  suit  by  a  State 
against  one  of  its  own  citizens,30  or  to  which  one  of  its  citizens 
is  an  indispensable  party.81  The  allegation  that  a  defendant 
corporation  is  a  "body  politic  in  the  law  of  and  doing  business  in 
the  State  of  California"  is  insufficient  to  establish  that  the  de- 
fendant is  a  California  corporation,  and  is  insufficient  to  show- 
that  the  defendant  is  not  a  Pennsylvania  corporation.32  The 
I'nited  States  may  sue  a  State  in  the  Supreme  Court.33  The 
fact  that  a  State  is  a  stockholder  in  a  corporation  by  or  against 
which  a  suit  is  brought  does  not  make  the  State  a  party  to  such 
suit.34 

The  Supreme  Court  of  the  United  States  considers  the 
former  practice  of  the  courts  of  Chancery  and  of  King's  Bench, 
in  England,  as  affording  outlines  for  its  practice  in  the  exer- 
cise of  its  original  jurisdiction.35  It  has  made  a  few 
rules  regulating  the  same.36  In  suits  to  which  a  State  is 
8  party,  the  practice  in  equity  is  followed.37  It  is  the  regular 
practice  to  obtain  from  the  court,  upon  a  motion,  leave  to  file  the 
bill.  The  motion  is  usually  heard  ex  parte,36  and  where  the 
State  is  a  party,  leave  is  ordinarily  granted  as  of  course;39  but 


27  Texas   v.    White.    7    Wall.    700, 
741-743,  19  L.  ed.  227,  242,  243. 

28  Florida   v.   Anderson,   91    U.   S. 
667,  23  L.  ed.  290. 

29  Re  Massachusetts,  197  U.  S. 
482,  49  L.  ed.  845. 

30  Pennsylvania  v.  Quicksilver  Co., 
10  Wall.  553,  19  L.  ed.  998;  Min- 
nesota v.  Northern  Securities  Co., 
184  U.  S.  199,  46  L.  ed.  499;  Wash- 
ington v.  Northern  Securities  Co., 
}Sr,  U.  S.  254,  46  L.  ed.  897. 

31  Minnesota  v.  Northern  Securi- 
ties Co.,  184  U.  S.  199,  46  L.  ed. 
499;  Washington  v.  Northern  Secu- 
rities Co.,  185  U.  S.  254.  46  L.  ed. 
897. 

32  Pennsylvania  v.  Quicksilver  Co., 
10  Wall.  553,  19  L.  ed.  9^8. 


33  U.  S.  v.  Texas,  143  U.  S.  621, 
36  L.  ed.  285. 

34  Bank  of  U.  S.  v.  Planters'  Bank 
of  Ga.,  9  Wheat.  904,  6  L.  ed.  244. 

35  Supreme  Court  Rule  3. 

36  Supreme  Court  Rules  3,  5. 

37  Georgia  v.  Brailsford.  2  Dall. 
402,  1  L.  ed.  433;  Kentucky  v.  Den- 
nison,  24  How.  66,  16  L.  ed.  717. 

38  Georgia  v.  Grant,  6  Wall.  241. 
18  L.  ed.  848;  Washington  v.  North- 
ern Securities  Co.,  185  U.  S.  254,  46 
L.  ed.  897. 

39  Mississippi  v.  Johnson.  4  Wall. 
47-">.  478,  18  L.  ed.  437:  Washington 
v.  Northern  Securities  Co.,  185  U. 
S.  254,  255,  46  L.  ed.  897;  Kansas 
v.  U.  S.,  204  U.  S.  331,  337.  51  L. 
ed.  510,  511. 


3]    ORIGINAL  JURISDICTION  AND  TERMS  OF  SUPREME  COURT. 


under  special  circumstances,  the  court  will  require  notice  to  be 
served  upon  the  proposed  defendant ; 40  and  leave  to  file  a  bill 
lias  been  denied.41  Written  authority  from  the  governor  of  a 
State  is  sufficient  to  authorize  a  suit  on  behalf  of  the  State.42  All 
process  of  the  court  is  in  the  name  of  the  President  of  the  Unit- 
ed States.43  In  a  suit  by  a  State  against  another  State  the  serv- 
ice of  a  subpoena  sixty  days  before  the  return  day  is  sufficient.44 
Service  should  be  made  on  both  the  governor  and  the  attorney- 
general.45  In  one  case  a  subpoena  served  upon  the  governor  by 
leaving  a  copy  at  his  house  and  there  shoving  the  original  to 
the  secretary  of  state  was  held  sufficient.46  The  filing  of 
a  pleading  by  the  attorney-general  of  a  State  who  has 
been  admitted  to  practice  in  the  Supreme  Court  of  the  Unit- 
ed States  is  an  appearance  on  behalf  of  such  State.47  The  rules 
concerning  the  time  for  pleading  in  suits  between  individuals 
do  not  apply  to  suits  between  the  different  States.48  The  State 
of  Massachusetts  was  allowed  to  answer  an  amended  bill  of  the 
State  of  Rhode  Island  one  vear  after  the  filing  of  such  amended 
lull.49  If  the  State  fail  to  appear,  or  if  the  State  withdraw  its 
appearance,  no  coercive  measures  will  be  taken  to  compel  its 
appearance,  but  the  complainant  may  be  allowed  to  proceed  ex 
parte.50  In  a  suit  to  settle  a  disputed  boundary,  the  most  appro- 
priate mode  of  proceeding  is  by  bill  and  cross-bill.51     In  suits 


40  Louisiana  v.  Texas,  176  U.  S. 
],  44  L.  ed.  347;  Minnesota  v. 
Northern  securities  Co.,  184  U.  S. 
lit!).  46  L.  ed.  499;  Washington  t. 
Northern  Securities  Co.,  185  U.  S. 
254.  4(i  L.  ed.  S97. 

41  Mississippi  v.  Johnson,  4  Wall. 
475,  18  L.  ed.  437;  Georgia  v.  Grant, 
(5  Wall.  241.  18  L.  ed.  848;  Minne- 
sota v.  Northern  Securities  Co.,  184 
U.   S.   199.  40  L.   ed.  499. 

42  Texas  v.  White,  7  Wall.  700, 
719.  19  L.  ed.  227,  235. 

43  Supreme  Court  Rule  5:  New 
Jersey  v.  New  York,  6  Pet.  323.  8 
L.  ed.  414. 

44  Supreme  Court  Rule  5:  Chis- 
liolm  v.  Georgia,  2  Dall.  419.  1  L. 
ed.  440;  Grayson  v.  Virginia,  3  Dall. 
320,    1    L.    ed.    019;    New   Jersey    v. 


New  York.  3  Pet.  461,  7  L.  ed.  741 ; 
s.  c,  5  Pet.  284,  8  L.  ed.  127;  Ken- 
tucky v.  Dennison,  24  How.  66,  16 
L.  ed.  717. 

45  Supreme  Court  Rule  5. 

46  Huger  v.  South  Carolina,  3 
Dall.  339,  1  L.  ed.  027. 

47  New  .lei  sty  v.  New  York,  6  Pet. 
323.  8  L.  ed.  414. 

48  Rhode  Island  v.  Massachusetts, 
13  Pet.  23.  10  L.  ed.  41. 

49  Rhode  Island  v.  Massachusetts, 
13  Pet.  23,  10  L.  ed.  41. 

50  Massachusetts  v.  Rhode  Island, 
12  Pet.  755.  9  L.  ed.  1272;  Oswald 
v.  New  York,  2  Dall.  415,  1  L.  ed. 
438;  Chisholm  v.  Georgia,  2  Dall. 
419.  1  L.  ed.  440. 

51  Missouri  v.  Iowa,  7  How.  660, 
12  L.  ed.  861. 


8  ORIGINAL    JURISDICTION.  [§    4 

against  a  State  the  practice  is  very  liberal,  and  the  utmost  lib- 
erality is  exercised  by  the  court  in  the  correction  of  slips  of 
practice  or  errors.52  The  appellate  jurisdiction  of  the  Supreme 
Court  is  explained  in  the  final  chapter  of  this  work.  Incidental 
to  such  appellate  jurisdiction,  the  Supreme  Court  has  power  in 
certain  limited  cases  to  issue  writs  of  prohibition,53  manda- 
mus,54 habeas  corpus,55  scire  facias,56  and  other  writs.57 

The  Supreme  Court  holds  one  term  annually,  at  Washington, 
beginning  on  the  second  Monday  in  October,  and  such  adjourned 
or  special  terms  as  it  finds  necessary  for  the  dispatch  of  busi- 
ness.58 In  case  of  a  contagious  or  epidemic  disease,  a  term  may 
be  held  at  another  place.59 

§  4.  The  jurisdiction  and  terms  of  the  circuit  courts  of 
appeals  and  the  judicial  circuits.  There  are  nine  Circuit 
Courts  of  Appeal,  one  in  each  circuit.1  Their  jurisdiction  is 
exclusively  appellate,  and  will  be  explained  in  the  concluding 
chapter  of  this  work.  Incidental  to  such  appellate  jurisdiction, 
they  have  the  power  to  issue  all  writs  not  specifically  provided 
for  by  statute,  which  are  necessary  for  the  exercise  of  their  re- 
spective jurisdiction  and  agreeable  to  the  usages  and  principles 
of  law.2 

The  territorial  jurisdiction  of  the  Circuit  Courts  of  Appeals 
is  as  follows:  The  First  Circuit  includes  the  districts  of  Rhode 
Island,  Massachusetts,  New  Hampshire,  and  Maine.  The  Sec- 
ond Circuit  includes  the  districts  of  Vermont,  Connecticut  and 
Xcw  York.     The  Third  Circuit  includes  the  districts  of  Penn- 

52  Iowa  v.  Illinois,  151  U.  S.  238,  &*  Infra,  §  457. 

38  L.  ed.  145;  Rhode  Island  v.  Mass-  55  tj.  S.  R.  S.,  §   751.     See  infra, 

achusetts,  13  Pet.  23,  10  L.  ed.  41.  §  461. 

It  has  been  said  that,  even  in  a  56  Juti.  Code,  §  262,  36  St.  at  L. 

.case    which    should    be    disposed    of  1087.     See  infra,  §  461. 

without  undue  delay,  "a  State  can-  57  Ibid.     See  infra,  §§  455,  459. 

not   be   expected   to  move   with   the  58  jU(j.  Code,  §  230,  36  St.  at  L. 

celerity  of  a  private  business  man;  1087. 

it   is  enough   if   it  proceeds,   in   the  59  rj.  S.  R.  S.,  §  4799. 

language  of   the   English   Chancery,  §  4.     1  Jud.   Code,    §    116,   36   St. 

with  all  deliberate  speed."    Virginia  at  L.  1087. 

v.  West  Virginia,  222  U.  S.   17,  56  2  Ibid.  §  262.     See  infra,  §  455. 
L.  ed.  71. 

53  Jud.  Code,  §  234,  36  St.  at  L. 
1087.     See  infra,  §  456. 


§    4]  OF   CIRCUIT   COURTS   OF   APPEALS.  9 

sylvania,  New  Jersey,  and  Delaware.  The  Fourth  Circuit  in- 
cludes the  districts  of  Maryland,  Virginia,  West  Virginia,  North 
Carolina  and  South  Carolina.  The  Fifth  Circuit  includes  the 
districts  of  Georgia,  Florida,  Alabama,  Mississippi,  Louisiana, 
and  Texas.  The  Sixth  Circuit  includes  the  districts  of  Ohio, 
Michigan,  Kentucky,  and  Tennessee.  The  Seventh  Circuit  in- 
cludes the  districts  of  Indiana,  Illinois,  and  Wisconsin.  The 
Eighth  Circuit  includes  the  districts  of  Colorado,  Arkansas, 
Iowa,  Kansas,  Minnesota,  Missouri,  Nebraska,  New  Mexico, 
North  Dakota,  Oklahoma,  South  Dakota,  Utah,  and  Wyoming. 
The  Ninth  Circuit  includes  the  districts  of  Arizona,  California, 
Hawaii,3  Idaho,  Montana,  Nevada,  Oregon,  and  Washington.4 
Final  decisions  of  the  District  Court  for  Alaska  5  and  the  Unit- 
ed States  Court  for  China,6  are  heard  by  the  Circuit  Court  of 
Appeals  for  the  Ninth  Circuit. 

The  term  of  the  Circuit  Court  of  Appeals  for  the  First  Cir- 
cuit is  held  in  the  City  of  Boston,  Massachusetts  on  the  first 
Tuesday  of  October  at  10  A.  M.  Stated  sessions  thereof  are  held 
at  the  same  hour  on  the  first  Tuesday  of  every  month.  The 
clerk's  office  is  in  the  City  of  Boston.  The  term  of  the  Circuit 
Court  of  Appeals  for  the  Second  Circuit  is  held  in  the  City  of 
New  York  on  the  third  Tuesday  of  October.  The  clerk's  office 
is  in  the  City  of  New  York.  The  terms  of  the  Circuit  Court  of 
Appeals  for  the  Third  Circuit  are  held  in  the  City  of  Phila- 
delphia on  the  first  Tuesday  of  March  and  the  first  Tuesday  of 
October.  The  clerk's  office  is  in  Philadelphia.  The  terms  of 
the  Circuit  Courts  of  Appeals  for  the  Fourth  Circuit  are  held  in 
the  City  of  Richmond,  Virginia,  on  the  first  Tuesday  of  Feb- 
ruary, the  first  Tuesday  of  May  and  the  first  Tuesday  of  Novem- 
ber. Special  sessions  of  the  court  are  held  at  Richmond,  Vir- 
ginia, on  the  second  Tuesday  of  every  month  of  the  year,  except 
in  those  months  in  which  regular  terms  are  held.  The  clerk's 
office  is  in  Richmond.  The  terms  of  the  Circuit  Court  of  Ap- 
peals for  the  Fifth  Circuit  are  held:  at  Atlanta,  Georgia,  on 
the  first  Monday  in  October ;  at'  Montgomery,  Alabama,  on  the 
third  Monday  in  October ;  at  Ft.  Worth,  Texas,  on  the  first  Mon- 
day in  November ;   at  New  Orleans,  Louisiana,  on  the  third 

3  Ibid.  §§  116,  133.     Wilder's  S.  S.  5  Ibid.  §  135. 

Co.  v.  Low,  C.  C.  A.,  112  Fed.  161.  6  Act  of  June  30,  1906,  34  St.  at 

4  Ibid.  §  116.  L.  814. 


10  ORIGINAL    JURISDICTION.  [§    1 

Monday  in  November.  The  clerk's  office  is  in  New  Orleans. 
All  appeals,  writs  of  error  and  other  appellate  proceedings, 
taken  or  prosecuted  from  the  District  Courts,  in  the  State 
of  Georgia,  are  heard  and  disposed  of  at  the  term  of  the  Circuit 
Court  of  Appeals  held  in  Atlanta,  and  all  such,  taken  or 
prosecuted  from  the  District  Courts  of  Texas,  held  at 
Beaumont  in  the  Eastern  District  of  Texas,  are  heard  at  the 
term  of  the  Court  of  Appeals  held  at  New  Orleans;  with  the 
exception  in  both  districts  of  appeals  from  orders  of  injunctions 
and  other  cases,  which,  under  the  statutes  and  rules,  or  in  the 
opinion  of  the  court  are  entitled  to  be  brought  to  a  speedy  hear- 
ing. The  term  of  the  Circuit  Court  of  Appeals  for  the  Sixth 
l  'ircuit  is  held  in  the  City  of  Cincinnati,  Ohio,  on  the  Tuesday 
after  the  first  Monday  of  October,  and  adjourned  sessions  on 
the  Tuesday  after  the  first  Monday  of  each  other  month  in  the 
year,  except  August  and  September.  At  the  July  sessions,  no 
cases  are  heard  except  upon  special  order  of  the  court.  The 
clerk's  office  is  at  Cincinnati.  The  term  of  the  Circuit  Court 
of  Appeals  for  the  Seventh  Circuit  is  held  at  Chicago,  Illinois, 
en  the  first  Tuesday  in  October  and  continues  until  the  first 
Tuesday  of  October  of  the  succeeding  year.  Unless  otherwise 
specially  ordered,  the  court  holds  at  Chicago  three  sessions  for 
the  hearing  of  causes  during  each  term,  beginning  of  the  first 
Tuesdays  in  October,  January  and  May.  The  clerk's  office  is  in 
Chicago.  The  terms  of  the  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit  are  held:  at  St.  Paul,  Minnesota,  on  the  first 
Monday  of  May;  at  Denver,  Colorado,  on  the  first  Monday  of 
September ;  and  at  St.  Louis,  on  the  first  Monday  of  December. 
The  clerk's  office  is  at  the  City  of  St.  Louis.  Cases  from  Minne- 
sota, North  Dakota,  South  Dakota,  Nebraska,  Iowa,  Kansas, 
Missouri,  Arkansas,  Oklahoma  and  the  Indian  Territory  in 
which  transcripts  are  filed  on  or  before  the  1st  day  of  April, 
and  cases  from  Colorado,  Utah,  Wyoming  and  New  Mexico  in 
which  transcripts  and  stipulations  of  the  parties  for  their  hear- 
ing at  the  May  term  in  St.  Paul  are  filed  on  or  before  the  1st 
day  of  April,  and  those  only,  are  heard  at  the  succeeding 
May  term  of  the  court  in  St.  Paul.  Cases  from  Colorado,  Wy- 
oming, Utah  and  New  Mexico  in  which  transcripts  are  filed  on 
or  before  the  1st  day  of  July,  and  cases  from  the  remainder  of 
the  circuit  in  which  transcripts  and  stipulations  of  the  parties 


§  5] 


DISTRICT  COURTS. 


11 


for  their  hearing  at  the  September  Term  in  Denver  are  filed  on 
or  before  the  1st  day  of  July,  and  those  only,  are  heard  at 
the  succeeding  September  term  in  Denver.  Cases  from  Minne- 
sota, North  Dakota,  South  Dakota.  Nebraska,  Iowa,  Kansas, 
Missouri,  Arkansas,  Oklahoma  and  the  Indian  Territory  in 
which  transcripts  are  filed  on  or  before  the  1st  day  of  October, 
and  cases  from  Colorado,  Wyoming,  Utah  and  New  Mexico  in 
which  transcripts  and  stipulations  of  the  parties  for  their  hear- 
ing at  the  December  term  in  St.  Louis  are  filed  on  or  before  the 
1st  day  of  October,  and  those  only  are  heard  at  the  succeed- 
ing December  term  in  St.  Louis.  The  term  of  the  Circuit  Court 
of  Appeals  for  the  Ninth  Circuit  is  held  at  San  Francisco,  Cal- 
ifornia; on  the  first  Monday  of  October.  The  clerk's  office  is  at 
San   Francisco,    California.7 

It  seems  that  the  term  of  a  Circuit  Court  of  Appeals  may 
be  extended.8 

§  5.  Jurisdiction  of  the  District  Courts  in  general.  The 
unit  of  Federal  territorial  jurisdiction  is  in  the  judicial  dis- 
trict. There  is  at  least  one  district  in  each  state  of  the  Union. 
Some  of  the  States  are  divided  into  several  districts.  And  some 
districts  are  divided  into  two  or  more  divisions.1  The  jurisdic- 
tion of  the  District  Courts  is  thus  defined  by  statute: 

"The  district  courts  shall  have  original  jurisdiction  as  follows: 
First.  Of  all  suits  of  a  civil  nature,  at  common  law  or  in  equity. 
brought  by  the  United  States,2  or  by  any  officer  thereof  anthor- 


7.Tud.  Code,  §  126,  36  St.  at  L. 
1087;  l".  8.  R.  S.,  §  604;  25  St.  at 
L.  070 ;  26  St.  at  L.  830;  130  TJ.  S. 
707 :  26  St.  at  L.  217 ;  33  St.  at  L. 
59,  249,  548;  31  St.  at  L.  414. 
Original  Rules  of  C.  C.  A„  150  Fed. 
xxv.  Amended  Rules  of  C.  C.  A., 
150  Fed.  xxxvii. 

8  Guaranty  Tr.  Co.  v.  Metropoli- 
tan Ry.  Co.,  C.  C.  A.,  177  Fed.  925. 

§  5.  lJud.  Code,  §§  69-115,  in- 
fra, §  64. 

2  Such  is  a  suit  by  the  United 
States  for  the  use  of  anyone  of  the 
five  civilized  tribes  of  Indians,  in- 
cluding the  Creek  Nation,  under 
Acts    of    March    1,    1901,    Ch.    676, 


§  10.  31  St.  at  L.  864,  and  April 
26,  190(3,  Ch.  1870,  §  18,  34  St.  at 
L.  144.  to  cancel  patents  or  deeds  to 
town  lots  obtained  by  fraud  for  less 
than  the  statutory  price,  or  other- 
wise, "for  the  collection  of  any 
moneys  or  recovery  of  any  land 
claimed  by  any  of  said  tribes."  U. 
S.  v.  Rea-Read  Mill  &  Elevator  Co., 
171  Fed.  501.  It  has  been  held  that 
a  suit  by  an  individual  upon  a  mar- 
shal's bond  cannot  be  maintained  in 
a  Federal  court  unless  the  matter  in 
dispute  exceeds  the  jurisdictional 
amount.  Pierson  v.  Phillips,  30  Fed. 
837 :  and  that  such  a  suit  upon  a 
bond  given  by  a  contractor  for  the 


12 


ORIGINAL    JURISDICTION. 


% 


ized  by  law  to  sue,3  or  between  citizens  of  the  same  State  claim- 
ing lands  under  grants  from  different  states;4  or,  where  the 
matter  in  controversy  exceeds,  exclusive  of  interest  and  costs, 
the  sum  or  value  of  three  thousand  dollars,5  and  (a)  arises  under 
the  Constitution  or  laws  of  the  United  States,6  or  treaties  made, 
or  which  shall  be  made,  under  their  authority,7  or  (b)  is  between 
citizens  of  different  States,8  or  (c)  is  between  citizens  of  a  State 
and  foreign  States,  citizens,  or  subjects.9  No  district  court 
t:hall  have  cognizance  of  any  suit  (except  upon  foreign  bills  of 
exchange)  to  recover  upon  any  promissory  note  or  other  chose  in 
'action  in  favor  of  any  assignee,  or  of  any  subsequent  holder  if 


construction  of  a  public  work  to  se- 
cure payment  to  laborers  and  ma- 
terial man  may  be,  irrespective  of 
the  amount  involved,  U.  S.  Fidelity 
&  G'y.  Co.  v.  U.  S.  for  the  benefit 
of  Kenyon,  204  U.  S.  340,  51  L.  ed. 
516.  When  suits  of  the  latter  class 
are  brought  by  the  Government  for 
its  own  benefit,  it  is  not  required  to 
serve  or  publish  notice  to  claimants, 
nor,  it  has  been  held,  to  bring  the 
suit  in  the  district  where  the  con- 
tract was  to  be  performed,  as  is  re- 
quired in  suits  brought  by  a  claim- 
ant to  enforce  the  same  by  Act  of 
February  24,  1005,  Ch.  778,  33  St. 
at  L.  811,  Comp.  St.  Supp.  1911, 
p.  1071;  U.  S.  v.  McGee,  171  Fed. 
209.  It  is  not  a  condition  precedent 
to  such  a  suit  by  a  claimant,  that 
he  should  have  filed  affidavits  with 
the  Quartermaster's  Department  and 
obtained  a  certified  copy  of  the  bond 
with  leave  to  sue.  U.  S.  v.  Massa- 
chusetts Bonding  &  Ins.  Co.,  198 
Fed.  923. 

3  This  includes  actions  by  the  re- 
ceiver of  a  national  bank  appointed 
by  the  comptroller,  Johnson  v.  Ran- 
kin (Texas)  95  S.  W.  665;  infra, 
§  35.  It  seems  that  a  suit  by  an 
agent  of  the  stockholders  of  a  na- 
tional bank,  appointed  in  pursuance 
with    the     Revised    Statutes,     fall3 


within  this  clause.  Snohomish 
County  v.  Puget  Sound  Nat.  Bank, 
81  Fed.  518;  Guarantee  Co.  v.  Han- 
way,  C.  C.  A.,  104  Fed.  369 ;  Weeks 
v.  International  Trust  Co.,  C.  C.  A., 
125  Fed.  370,  373.  Where  the  plain- 
tiff, who  was  receiver  of  a  national 
bank,  assigned  his  cause  of  action 
to  one  of  the  defendants  after  the 
commencement  of  the  suit,  the  suit 
was  dismissed,  Weaver  v.  Kelly,  C. 
C.  A.,  92  Fed.  417,  34  C.  C.  A.  423. 
For  cases  brought  by  receivers  ap- 
pointed by  the  Federal  courts,  see 
infra,  §  37. 

4  Infra,  §  50. 

5  This  increases  the  jurisdictional 
amount,  which  formerly  was  $2,000, 
exclusive  of  interest  and  costs.  24 
St.  at  L.  552.  For  the  construction 
of  the  clause,  see  infra,  §§  6-23.  It 
has  been  held,  that  where  the  cause 
of  action  arose  prior  to  January  1st, 
1912,  the  amount  necessary  for  the 
jurisdiction  is  not  enlarged,  al- 
though the  action  is  subsequently 
commenced,  Taylor  v.  Midland  Val- 
ley R.  Co.,  197  Fed.  323;  construing 
Jud.  Code,  §  299. 

8  Infra,  §§  24-39. 
1 1nfra,  §  26. 

8  Infra,  §§  40-49. 

9  Infra,  §  45. 


§5]  DISTBICT  COURTS.  13 

such  instrument  be  payable  to  bearer  and  be  not  made  by  any 
corporation,  unless  such  suit  might  have  been  prosecuted  in  such 
court  to  recover  upon  said  note  or  other  chose  in  action  if  no 
assignment  had  been  made:10  Provided,  however,  That  the 
foregoing  provision  as  to  the  sum  or  value  of  the  matter  in  con- 
troversy shall  not  be  construed  to  apply  to  any  of  the  cases  men- 
tioned in  the  succeeding  paragraphs  of  this  section.  Second. 
Of  all  crimes  and  offenses  cognizable  under  the  authority  of  the 
United  States.11  Third:  Of  all  civil  causes  of  admiralty  and 
maritime  jurisdiction,  saving  to  suitors  in  all  cases  the  right  of 
a  common-law  remedy  where  the  common  law  is  competent  to 
give  it;  of  all  seizures  on  land  or  waters  not  within  admiralty 
and  maritime  jurisdiction;  of  all  prizes  brought  into  the  United 
States ;  and  of  all  proceedings  for  the  condemnation  of  property 
taken  as  prize.12  Fourth.  Of  all  suits  arising  under  any  law 
relating  to  the  slave  trade.  Fifth.  Of  all  cases  arising  under 
any  law  providing  for  internal  revenue,  or  from  revenue  from 
imports  or  tonnage,  except  those  cases  arising  under  any  law- 
providing  revenue  from  imports,  jurisdiction  of  which  has  been 
conferred  upon  the  court  of  Customs  Appeals.  Sixth.  Of  all 
cases  arising  under  the  postal  laws.  Seventh.  Of  all  suits  at 
law    or    in    equity    arising    under    the    patent13    the    copy- 

10  Infra,  §  53.  "The  several  courts  vested  with  ju- 

11  See  infra,  Chapter  on  Practice  risdietion  of  cases  arising  under  the 
in  Criminal  Cases.  patent    laws    shall    have    power    to 

12  See  infra,  Chapter  on  Admiral-  grant  injunctions  according  to  the 
ty.  course   and    principles    of    courts    of 

13  Infra,  §§  29,  146,  147,  188.  equity,  to  prevent  the  violation  of 
U.  S.  R.  S..  §  4919:  ''Damages  any  right  secured  hy  patent,  on  such 
for  the  infringement  of  any  pat-  terms  as  the  court  may  deem  rea- 
ent  may  be  recovered  by  action  on  sonable:  and  upon  a  decree  being 
the  case,  in  the  name  of  the  party  rendered  in  any  such  case  for  an 
interested,  either  as  patentee,  as-  infringement,  the  complainant  shall 
signee.  or  grantee.  And  whenever  he  entitled  to  recover,  in  addition 
in  any  such  action  a  verdict  is  ren-  to  the  profits  to  be  accounted  for  by 
dered  for  the  plaintiff,  the  court  may  the  defendant,  the  damages  the  corn- 
enter  judgment  thereon  for  any  sum  plainant  has  sustained  thereby. 
above  the  amount  found  by  the  ver-  and  the  court  shall  assess  the  same 
diet  as  the  actual  damages  sustained,  or  cause  the  same  to  be  assessed 
according  to  the  circumstances  of  the  under  its  direction.  And  the  court 
case,  not  exceeding  three  times  the  shall  have  the  same  power  to  in- 
amount  of  such  verdict,  together  crease  such  damages,  in  its  discre- 
with  the  costs."    U.  S.  R.  S.,  §  4921 :  tion,    as    is    given    to    increase    the 


14 


ORIGINAL    JURISDICTION. 


Ci 


right,14  and  the  trade  mark  laws.15  Eighth.  Of  all 
suits  and  proceedings  arising  under  any  law  regulat- 
ing commerce,  except  those  suits  and  proceedings  ex- 
clusive jurisdiction  of  which  has  been  conferred  upon 
the  Commerce  Court,16  Ninth.  Of  all  suits  and  pro- 
ceedings for  the  enforcement  of  penalties  and  forfeitures  in- 
curred under  any  law  of  the  United  States.17  Tenth.  Of  all 
suits  by  the  assignee  of  any  debenture  for  drawback  of  duties, 
issued  under  any  law  for  the  collection  of  duties,  against  the 
person  to  whom  such  debenture  was  originally  granted,  or 
against  and  indorser  thereof,  to  recover  the  amount  of  such 
debenture.  Eleventh.  Of  all  suits  brought  by  any  person  to 
recover  damages  for  any  injury  to  his  person  or  property  on 
account  of  anv  act  done  bv  him,  under  any  law  of  the  United 
States,  for  the  protection  or  collection  of  any  of  the  revenues 
thereof,  or  to  enforce  the  right  of  citizen-  of  the  United  States 


damages  found  by  verdicts  in  ac- 
tions in  the  nature  of  actions  of 
trespass  upon  the  case."  For  a  case 
where  an  injunction  and  an  account- 
ing were  denied  when  brought  by 
the  buyer  against  the  seller  of  a 
patent,  because  of  the  sale  of  the 
patented  machinery  by  the  vendor  in 
violation  of  the  contract,  see  United 
Cigarette  Mach.  Co.  v.  Winston 
Cigarette  Mach.  Co.,  C.  C.  A.,  194 
Fed.  947.  Where  a  bill  charged 
that,  after  the  termination  of  a  li- 
cense, the  licensees  obtained  large 
numbers  of  the  patented  devices 
from  sources  to  complainants  un- 
known and  sold  the  same  within  the 
district  without  right  or  authority, 
was  held  to  arise  under  the  patent 
laws  and  that  the  Federal  court 
might  take  jurisdiction  of  the  same 
regardless  of  the  amount  involved. 
X.  J.  Patent  Co.  v.  Martin.  172  Fed. 
760.  U.  S.  R.  S.,  §  4918:  '-When- 
ever there  are  interfering  patents, 
any  person  interested  in  any  one  of 
them,  or  in  the  working  of  the  in- 
vention claimed  under  either  of 
them,   mav   have    relief   against   the 


interfering  patentee,  and  all  parties 
interested  under  him.  by  suit  in 
equity  against  the  owners  of  the  in- 
terfering patent :  and  the  court,  on 
notice  to  adverse  parties,  and  other 
due  proceedings  had  according  to 
the  course  of  equity,  may  adjudge 
and  declare  either  of  the  patents 
void  in  whole  or  in  part,  or  inoper- 
ative, or  invalid  in  any  particular 
part  of  the  United  States,  according 
to  the  interest  of  the  parties  in  the 
patent  or  the  invention  patented. 
But  no  such  judgment  or  adjudica- 
tion shall  affect  the  right  of  any 
person  except  the  parties  to  the  suit 
and  those  deriving  title  under  them 
subsequent  to  the  rendition  of  such 
judgment."  See  infra.  §  147.  A  suit 
to  enjoin  a  tax  on  a  patent  does  not 
arise  under  the  patent  laws.  Holt  v. 
Indiana  Mfg.  Co..  176  U.  S.  68,  44 
L.  ed.  374. 

14  Infra.  §§  29.  150. 

Vilnfra,  §§  80,  148.  149. 

n  Infra,  §§  75,  151. 

17  See  U.  S.  v.  Mexican  Nat.  Ry. 
Co..  40  Fed.  709. 


§    5]  DISTRICT  COURTS.  15 

to  vote  in  the  several  States.  Twelfth.  Of  all  suits  authorized 
by  law  to  be  brought  by  any  person  for  the  recovery  of  damages 
on  account  of  any  injury  to  his  person  or  property,  or  of  the 
deprivation  of  any  right  or  privilege  of  a  citizen  of  the  United 
States,  by  any  act  done  in  furtherance  of  any  conspiracy  men- 
tioned in  section  nineteen  hundred  and  eighty,  Revised  Stat- 
utes. Thirteenth.  Of  all  suits  authorized  by  law  to  be  brought 
against  any  person  who,  having  knowledge  that  any  of  the 
wrongs  mentioned  in  section  nineteen  hundred  and  eighty,  Pie- 
vised  Statutes,  are  about  to  be  done,  and,  having  power  to  pre- 
vent or  aid  in  preventing  the  same,  neglects  or  refuses  so  to  do, 
to  recover  damages  for  any  such  wrongful  act.  Fourteenth.  Of 
nil  suits  at  law  or  in  equity  authorized  by  law  to  be  brought  by 
any  person  to  redress  the  deprivation,  under  color  of  any  law, 
statute,  ordinance,  regulation,  custom  or  usage  of  any  State,  of 
any  right,  privilege,  or  immunity,  secured  by  the  Constitution 
of  the  United  States,  or  of  any  right  secured  by  any  law  of  the 
United  States  providing  for  equal  rights  of  citizens  of  the  Unit- 
ed States,  or  of  all  persons  within  the  jurisdiction  of  the  United 
States.  Fifteenth.  Of  all  suits  to  recover  possession  of  any 
office,  except  thai  of  elector  of  President  or  Vice  President, 
Representative  in  or  Delegate  to  Congress,  or  member  of  a  State 
legislature,  authorized  by  law  to  be  brought,  wherein  it  appears 
that  the  sole  question  touching  the  title  to  such  office  arises  out 
of  the  denial  of  the  right  to  vote  to  any  citizen  offering  to  vote, 
on  account  of  race,  color,  or  previous  condition  of  servitude: 
Provided,  That  such  jurisdiction  shall  extend  only  so  far  as  to 
determine  the  rights  of  the  parties  to  such  office  by  reason  of  the 
denial  of  the  right  guaranteed  by  the  Constitution  of  the  United 
States,  and  secured  by  any  law,  to  enforce  the  right  of  citizens 
of  the  United  States  to  vote  in  all  the  States.  Sixteenth.  Of  all 
cases  commenced  by  the  United  States,  or  by  direction  of  any 
officer  thereof,  against  any  national  banking  association,  and 
cases  for  winding  up  the  affairs  of  any  such  bank;  and  of  all 
suits  brought  by  any  banking  association  established  in  the  dis- 
trict for  which  the  court  is  held,  under  the  provisions  of  title 
'National  Banks,'  Revised  Statutes,  to  enjoin  the  Comptroller 
of  the  Currency,  or  any  receiver  acting  under  his  direction,  as 
provided  by  said  title.  And  all  national  banking  associations 
established  under  the  laws  of  the  United  States  shall,  for  the 


16  ORIGINAL    JURISDICTION-.  [§    5 

purposes  of  all  other  actions  by  or  against  them,  real,  personal, 
or  mixed  and  all  suits  in  equity,  be  deemed  citizens  of  the  States 
in  which  they  are  respectively  located.18  Seventeenth.  Of  all 
.suits  brought  by  any  alien  for  a  tort  only  in  violation  of  the  laws 
of  nations  or  of  a  treaty  of  the  United  States.  Eighteenth.  Of 
all  suits  against  consuls  and  vice  consuls.19  Nineteenth.  Of  all 
matters  and  proceedings  in  bankruptcy.20  Twentieth.  Concur- 
rent with  the  Court  of  Claims,  of  all  claims  not  exceeding  ten 
thousand  dollars  founded  upon  the  Constitution  of  the  United 
States  or  any  law  of  Congress,  or  upon  any  regulation  of  an 
Executive  Department,  or  upon  any  con  tract,  express  or  im- 
plied, with  the  Government  of  the  United  States,  or  for  dam- 
ages, liquidated  or  unliquidated,  in  cases  not  sounding  in  tort, 
in  respect  to  which  claims  the  party  would  be  entitled  to  redress 
against  the  United  States,  either  in  a  court  of  law,  equity,  or 
admiralty  if  the  United  States  were  suable,  and  of  all  set-offs, 
counterclaims,  claims  for  damages,  whether  liquidated  or  un- 
liquidated, or  other  demands  whatsoever  on  the  part  of  the 
Government  of  the  United  States  against  any  claimant  against 
the  Government  in  said  court:  Provided,  however,  That  noth- 
ing in  this  paragraph  shall  be  construed  as  giving  to  either  the 
district  courts  or  the  Court  of  Claims  jurisdiction  to  hear  and 
determine  claims  growing  out  of  the  late  Civil  War,  and  com- 

18  See  infra,  §  28.  The  former  tion  in  cases  affecting  consuls;  Con- 
statute  contained  the  following  ad-  stitution,  Art.  Ill;  U.  S.  R.  S., 
ditional  clause:  "And  in  such  cases  §  687  ;  supra,  §  3:  The  State  courts 
the  Circuit  and  District  Courts  shall  formerly  had  jurisdiction  of  ac- 
not  have  jurisdiction  other  than  tions  against  consuls  in  civil  cases; 
such  as  they  would  have  in  cases  Hall  v.  Young,  3  Pick.  (Mass.)  80, 
between  individual  citizens  of  the  15  Am.  Dec.  180;  Sartori  v.  Hamil- 
same  State,"  25  St.  at  L.  433.  ton,  13  N.  J.  L.  107;  Com.  v.  Kos- 
There  is  room  consequently  for  ar-  loff,  5  Serg.  &  R.  (Pa.)  545;  Kidder- 
gument  in  support  of  the  contention  lin  v.  Meyer,  2  Miles  (Pa.)  242; 
that  the  District  Courts  have  juris-  Durand  v.  Halbach,  1  Miles  (Pa.) 
diction  of  all  actions  by  or  against  46;  State  v.  De  la  Foret,  2  Xott  & 
them,  which  involve  more  than  the  M.  (S.  C.)  217;  Wilcox  v.  Luco,  118 
jurisdictional  amount,  as  arising  Cal.  639.  62  Am.  St.  Rep.  305,  50 
under  the  Constitution  and  laws  of  Pac.  758.  But  sec  Jud.  Code,  §  256, 
the  United  States.  36  St.  at  L.  1087,  quoted  infra. 

19  This  jurisdiction  is  not  exclu-  20  See  infra,  Chapter  on  Bank- 
sive.      The    Supreme    Court    of    the  ruptey. 

United  States  has  original  jurisdic- 


5] 


DISTRICT  COURTS.  17 


monly  known  as  'war  claims'  or  to  hear  and  determine  other 
claims  which  had  been  rejected  or  reported  on  adversely  prior 
to  the  third  day  of  March,  eighteen  hundred  and  eighty-seven, 
by  any  court,  department,  or  commission  authorized  to  hear  and 
determine  the  same,  or  to  hear  and  determine  claims  for  pen- 
sions; or  as  giving  to  the  district  courts  jurisdiction  of  cases 
brought  to  recover  fees,  salary,  or  compensation  for  official  serv- 
ices of  officers  of  the  United  States  or  brought  for  such  purpose 
by  persons  claiming  as  such  officers  or  as  assignees  or  legal  rep- 
resentatives thereof;  but  no  suit  pending  on  the  twenty-seventh 
day  of  June,  eighteen  hundred  and  ninety-eight,  shall  abate  or  be 
affected  by  this  provision:    And  provided  further  That  no  suit 
against  the  Government  of  the  United  States  shall  be  allowed 
under  this  paragraph  unless  the  same  shall  have  been  brought 
within  six  years  after  the  right  accrued  for  which  the  claim  is 
made:     Provided,  That  the  claims 'of  married  women,  first  ac- 
crued during  marriage,  of  persons  under  the  age  of  twenty-one 
years,  first  accrued  during  minority,  and  of  idiots,  lunatics,  in- 
sane persons,  and  persons  beyond  the  seas  at  the  time  the  claim 
accrued,  entitled  to  the  claim,  shall  not  be  barred  if  the  suit  be 
brought  within  three  years  after  the  disability  his  ceased ;  but  no 
other  disability  than  these  enumerated  shall  prevent  any  claim 
from  being  barred,  nor  shall  any  of  the  said  disabilities  operate 
cumulatively.    All  suits  brought  and  tried  under  the  provisions 
of  this  paragraph  shall  be  tried  by  the  court  without  a  jury. 
Twenty-first.     Of  proceedings  in  equity,  by  writ  of  injunction, 
to  restrain  violations  of  the  provisions  of  laws  of  the  United 
States  to  prevent  the  unlawful  inclosore  of  public  lauds;  and  it 
shall  be  sufficient  to  give  the  court  jurisdiction  if  service  of  orig- 
inal process  be  had  in  any  civil  proceeding  on  any  agent  or  em- 
ployee having  charge  or  control  of  the  inclosure.     Twenty-sec- 
ond.    Of  all  suits  and  proceedings  arising  under  any  law  regu- 
lating the  immigration  of  aliens,  or  under  the  contract  labor 
laws.22      Twenty-third.      Of  all  suits   and   proceedings   arising 
under  any  law  to  protect  trade  and  commerce  against  restraints 
and  monopolies.23     Twenty-fourth,      Of   all  actions,   suits,   or 

21  See  infra,  §§  96.  97,  and  Chap-  23  26  St.  at  L.  209:  U.  S.  v.  E.  C. 
ter  on  Court  of  Claims.  Knight  Co.,   156  U.  S.   1,  39  L.  ed 

22  See   infra,   §   403.   and   Chapter  325;  U.  S.  v.  Trar^Missoun  Freight 
on  Writs  of  Error  and  Appeals.  Ass'n.,  106  U.  S.  290,  41  L.  ed.  1007  ; 

Fed.   Prac.  Vol.  I.— 2. 


18 


ORIGINAL    JURISDICTION. 


u 


proceedings  involving  the  right  of  any  person,  in  whole  or  in 
part  of  Indian  blood  or  descent,  to  any  allotment  of  land  under 
any  law  or  treaty.  And  the  judgment  or  decree  of  any  such 
court  in  favor  of  any  claimant  to  an  allotment  of  land  shall  have 
the  same  effect,  when  properly  certified  to  the  Secretary  of  the 
Interior,  as  if  snch  allotment  had  been  allowed  and  approved  by 
him;  but  this  provision  shall  not  apply  to  any  lands  now  or 
heretofore  held  by  either  of  the  Five  Civilized  Tribes,  the  Osage 
Xation  of  Indians,  nor  to  any  of  the  lands  within  the  Quapaw 
Indian  Agency:  Provided,  That  the  right  of  appeal  shall  be 
allowed  to  either  party  as  in  other  cases.  Twenty-fifth.  Of 
suits  in  equity  brought  by  any  tenant  in  common  or  joint  tenant 
for  the  partition  of  land  in  cases  where  the  United  States  is 
•me  of  such  tenants  in  common  or  joint  tenants,  such  suits  to 
be  brought  in  the  district  in  which  such  land  is  situated."24 
They  have  also  jurisdiction  of  proceedings  to  condemn  for  na- 
tional public  uses  land  within  their  respective  districts ; 25  con- 
currently with  the  State  courts,  of  proceedings  for  the  naturali- 
zation of  aliens,25  and  of  suits  by  beneficial  purchasers  of  land 


U.  S.  v.  Joint  Traffic  Ass'n.,  171  U. 
S.  505,  43  L.  ed.  259;  Addyston 
Pipe  &  Steel  Co.  v.  U.  S.,  175  U.  S. 
211,  44  L.  ed.  136;  Montague  &  Co. 
v.  Lowry,  193  U.  S.  38,  48  L.  ed. 
608;  Northern  Securities  Co.  v.  U. 
S..  193  U.  S.  197,  48  L.  ed.  679; 
Minnesota  v.  Northern  Securities 
Co..  194  U.  S.  48,  48  L.  ed.  870; 
Swift  &  Co.  v.  U.  S.,  196  U.  S. 
375.  49  L.  ed.  518;  Loewe  v.  Lawlor, 
208  U.  S.  274,  52  L.  ed.  488;  Shaw- 
nee Compress  Co.  v.  Anderson,  209 
{'.  S.  423,  52  L.  ed.  865;  Continental 
Wall  Paper  Co.  v.  Voight  &  Sons 
Co..  212  U.  S.  227,  53  L.  ed.  486: 
U.  S.  v.  Lehigh  Valley  P.  P.  Co.  220 
U.  S.  257.  55  L.  ed.  45S ;  Standard 
Oil  Co.  v.  U.  S..  221  U.  S.  1,  55  L. 
ed.  619,  34  L.P.A.iX.S.)  834:  U.  S. 
v.  Am.  Tobacco  Co..  221  U.  S..  106, 
55  L.  ed.  663:  U.  S.  v.  Union  Pac. 
R.  P.  Co..  226  U.  S.  61,  57  L.  ed.  53; 
8.  c,  226  U.  S.   470.  57   L.   ed.   90; 


U.  S.  v.  Patten,  226  U.  S.  525,  57 
L.  ed.  — ;  U.  S.  v.  Reading  Co.,  226 
U.  S.  324,  57  L.  ed.  90;  U.  S.  v. 
Jellico  Mountain  Coke  &  Coal  Co., 
43  Fed.  898;  s.  c,  12  L.R.A.  753, 
46  Fed.  432;  Bigelow  v.  Calumet  & 
Hecla  Min.  Co.,  155  Fed.  869.  See 
American  Biscuit  &  Mfg.  Co.  v. 
Klitz,  44  Fed.  721,  725,  726. 

24Jud.  Code,  §  24,  36  St.  at  L. 
10S7,  as  amended  by  37  St.  at  L. 
part  2,  p.  46. 

25  25  St.  at  L.  Ch.  728,  p.  357. 
See  infra,  §  486. 

26.34  St.  at  L.  596,  .Comp.  St. 
Supp.  1909,  p.  477.  See  U.  S.  v. 
Ojala,  C.  C.  A.,  182  Fed.  51.  It  lias 
been  held:  that  a  suit  to  cancel  a 
certificate  of  naturalization  is  a  spe- 
cial proceeding  and  that  the  plead- 
ings and  procedure  may  be  moulded 
in  any  way  which  seems  best  cal- 
culated to  meet  the  needs  of  justice, 
but  that  the  proof  must   be  of   the 


5] 


DISTRICT  COURTS. 


19 


erroneously  patented  under  railroad  or  wagon  land  grants  to 
establish  their  rights  to  such  land.27 

"The  district   courts   and   the   United    States  commissioners 
shall  have  power  to  carry  into  effect,  according  to  the  true  intent 
and  meaning  thereof,  the  award  or  arbitration  or  decree  of  any 
consul,  vice  consul,  or  commercial  agent  of  any  foreign  nation, 
made  or  rendered  by  virtue  of  authority  conferred  on  him  as 
such  consul,  vice  consul,  or  commercial  agent,  to  sit  as  judge 
or  arbitrator  in  such  differences  as  may  arise  between  the  cap- 
tains and  crews  of  the  vessels  belonging  to  the  nation  whose  in- 
terests are  committed  to  his  charge,  application  for  the  exercise 
of  such  power  being  first  made  to  such  court  or  commissioner, 
by  petition  of  such  consul,  vice  consul,  or  commercial  agent. 
And  said  courts  and  commissioners  may  issue  all  proper  reme- 
dial  process,   mesne   and  final,   to  carry   into   full  effect  such 
award,  arbitration,  or  decree,  and  to  enforce  obedience  thereto 
by  imprisonment  in  the  jail  or  other  place  of  confinement  in  the 
district  in  which  the  United  States  may  lawfully  imprison  any 
person  arrested  under  the  authority  of  the  United  States,  until 
such  award,  arbitration,  or  decree  is  complied  with,  or  the  par- 
ties are  otherwise  discharged  therefrom,  by  the  consent  in  writ- 
ing of  such  consul,  vice  consul,  or  commercial  agent,  or  his  suc- 
cessor in  office,  or  by  the  authority  of  the  foreign  government 
appointing  such  consul,  vice  consul,  or  commercial  agent:     Pro- 
vided, however,  That  the  expenses  of  the  said  imprisonment  and 
maintenance  of  the  prisoners,  and  the  cost  of  the  proceedings, 
shall  be  borne  by  such  foreign  government,  or  by  its  consul,  vice 
consul,  or  commercial  agent  requiring  such  imprisonment.     The 
marshals  of  the  United  States  shall  serve  all  such  process,  and 


kind  and  force  required  to  set  aside 
a  judgment,  U.  S.  v.  Mansour,  170 
Fed.  (570.  That  the  subpoena  which, 
under  §  5  of  the  act,  the  clerk  is 
authorized  to  issue,  is  the  ordinary 
subpoena  ad  testificandum  and  that 
where  one  of  the  witnesses  specified 
in  the  published  notice  cannot  be 
produced  the  petitioner  can  substi- 
tute another  whose  name  has  not 
been  posted,  and  that  no  postpone- 
ment   of    the    hearing    is    then    re- 


quired, Re  Neugebauer,  172  Fed. 
943.  That  the  declaration  of  an  in- 
tention to  become  a  citizen  of  the 
United  States  is  not  a  part  of  a 
judicial  proceeding  and  that  a  de- 
fect in  the  same  cannot  be  subse- 
quently cured  by  an  amendment 
nunc  pro  tunc.  Re  Stack.  200  Fed. 
•330. 

27  Act  of  March  2,  1800.  20  St.  at 
L.  Ch.  39,  p.  42:  Oregon  &  C.  R.  Co. 
v.  U.  S.,  C.  C.  A.  144  Fed.  832. 


20  ORIGINAL    JURISDICTION.  [§    5 

do  all  other  acts  necessary  and  proper  to  carry  into  effect  the 
premises,  under  the  authority  of  the  said  courts  and  commis- 
sioners."28 The  District  Courts  have  also  jurisdiction,  by  re- 
moval from  the  State  courts,  of  all  cases  in  which  they  have 
original  jurisdiction  and  of  which  the  State  courts  have  concur- 
rent  jurisdiction,  with  the  exception  of  those  arising  under  the 
Employers'  Liability  Act  of  April  22nd,  1908.29  Such  suits  of 
the  latter  class  when  brought  in  a  State  court,  cannot  be  removed 
to  any  court  of  the  United  States.30  The  District  Courts  have 
also  other  jurisdiction,  by  removal,  of  certain  civil  and  criminal 
cases.31  This  will  be  described  in  the  subsequent  chapter  on  the 
removal  of  causes.  It  has  been  held  that  such  a  court  has  in- 
herent jurisdiction  to  punish  as  a  contempt  the  unlawful  ouster 
of  the  court,  its  officers  and  records,  from  the  rooms  of  a  public 
building,  where  they  are  located,  and  as  an  incidental  to  the 
contempt  proceedings  it  may  issue  a  stay  order  against  such  a 
removal.32  Such  courts  have  also  jurisdiction  to  compel  the  at- 
tendance of  witnesses  and  the  production  of  books  or  papers,  be- 
fore the  Interstate  Commerce  Commission 33  or  the  Commission- 
er of  Corporations,34  and  investigations  under  the  Anti-Monop- 
oly Law,35  and  in  aid  of  the  assessment  of  the  Corporation  In- 
come Tax.36  The  District  Courts  have  also  certain  ancillary  ju- 
risdiction which  is  hereinafter  considered.364  "The  district  courts 
f-hall  have  appellate  jurisdiction  of  the  judgments  and  orders  of 
United  States  commissioners  in  cases  arising  under  the  Chinese 
exclusion  laws."37  "The  district  court  for  the  district  of  Wyo- 
ming shall  have  jurisdiction  of  all  felonies  committed  within  the 
Yellowstone  National  Park  and  appellate  jurisdiction  of  judg- 
ments in  cases  of  conviction  before  the  commissioner  authorized 
to  be  appointed  under  section  five  of  an  Act  entitled  'An  Act 

28Jud.  Code,  §  271,  36  St.  at  L.  34  32    St.    at    L.   825,    828;    infra, 

]087.  §  339- 

29  Jud.  Code,  §  28,  30  St.  at  L.  35  26    st-    at    L-    209>    ComP-    st- 

]087_  1901,    p.    3200;    34    St.    at    L.    798, 

30j1)id  Comp.    St.    Supp.    1911,    pp.    1319, 

31  Ibid    SS  30-34  1320;   infra>  §   339- 

,,t>    T   '  ,    '      ,    on    (0  36  Act  of  August  5,   1909,  36  St. 

32  Re  Lyman,  5o  l'ed.  29,  43.  .  _     & 

33  32  St.   at  L.  847,  §   3,   10  Fed.       *„„'.*, 

36a  §    5  1 ,    Itl  j  ret . 

St.  Ann.  170,  Comp.  St.  Supp.  1911,  MT.,     „   ,       .-.„,     .,,.    „,        ,    T 

1  '  37  jlKi.   Code,   §   2o,   36   St.   at   1-. 

pp.    1309.    1312,    Pierce    Fed.    Code,       ^      ^  ,    Qn  ^ 

§  6453;   infra,  §  339.  of  Errorg  and  Appea]g 


§5]  DISTRICT  COURTS.  21 

to  protect  the  birds  and  animals  in  Yellowstone  National  Park, 
and  to  punish  crimes  in  said  IV.  rk,  and  for  other  purposes/  ap- 
proved May  seventh,  eighteen  hundred  and  ninety-four.''  'The 
district  court  of  the  United  States  for  the  district  of  South  Da- 
kota shall  have  jurisdiction  to  hear,  try,  and  determine  all  ac- 
tions and  proceedings  in  which  any  person  shall  be  charged  with 
the  crime  of  murder,  manslaughter,  rape,  assault  with  intent  to 
kill,  arson,  burglary,  larceny,  or  assault  with  a  dangerous  weap- 
on, committed  within  the  limits  of  any  Indian  reservation  in 
the  State  of  South  Dakota." 39 

"The  jurisdiction  vested  in  the  courts  of  the  United  States 
in  the  cases  and  proceedings  hereinafter  mentioned,  shall  be  ex- 
clusive of  the  courts  of  the  several  States : 

First.  Of  all  crimes  and  offenses  cognizable  under  the  author- 
ity of  the  United  States. 

Second  Of  all  suits  for  penalties  and  forfeitures  incurred 
under  the  laws  of  the  United  States. 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  juris- 
diction ;  saving  to  suitors,  in  all  cases,  the  right  of  a  common- 
law  remedy,  where  the  common  law  is  competent  to  give  it. 

Fourth.  Of  all  seizures  under  the  laws  of  the  United  States, 
on  land  or  on  waters  not  within  admiralty  and  maritime  juris- 
diction ;  of  all  prizes  brought  into  the  United  States ;  and  of  all 
proceedings  for  the  condemnation  of  property  taken  as  prize. 

Fifth.  Of  all  cases  arising  under  the  patent-right,  or  copy- 
right laws  of  the  United  States. 

Sixth.  Of  all  matters  and  proceedings  in  bankruptcy. 
Seventh.  Of  all  controversies  of  a  civil  nature,  where  a  State 
is  a  party,  except  between  a  State  and  its  citizens,  or  between  a 
State  and  citizens  of  other  States,  or  aliens. 

Eighth.  Of  all  suits  and  proceedings  against  ambassadors,  or 
other  public  ministers,  or  their  domestics,  or  domestic  servants, 
or  against  consuls  or  vice-consuls. 

The  Bankruptcy  Act  provides:  '"Suits  by  the  trustee  shall 
only  be  brought  or  prosecuted  in  the  courts  where  the  bankrupt, 
whose  estate  is  being  administered  by  such  trustee,  might  have 
brought  or  prosecuted  them  if  proceedings  in  bankruptcy  had  not 
been  instituted,  unless  by  consent  of  the  proposed  defendant, 

38  ibid.  §  26.  40  Jud-  Code-  §  256>  36  st-  at  L' 

39  Ibid.  §  27.  1087- 


22 


ORIGINAL    JURISDICTION. 


[§  o 


except  suits  for  the  recovery  of  property  under  section  sixty, 
subdivision  b,  section  sixty -seven,  subdivision  e,  and  section 
seventy,  subdivision  e."  41 

The  jurisdiction  of  the  District  Courts  is  restricted  in  most 
instances  by  the  residence  of  the  parties  or  of  their  assignors. 
These  restrictions  are  hereinafter  considered.42 

§  6.  Value  of  the  matter  in  dispute.  In  General.  The 
value  of  the  matter  in  dispute  in  suits  brought  in  the  District 
Courts  of  the  United  States  or  removed  thereto,  when  the  juris- 
diction depends  upon  difference  of  citizenship,  or  because  the 
case  arises  under  the  Constitution  or  laws  of  the  United  States 
or  treaties  made  under  their  authority,  must  ordinarily  exceed, 
''exclusive  of  interest  and  costs,  the  sum  or  value  of  three  thou- 
sand dollars."  1  The  exceptions  are  stated  in  the  preceding  sec- 
tion.2 This  enlarges  the  former  jurisdiction  from  two  thousand 
to  three  thousand  dollars,  and  the  statute  does  not  apply  to 
cases  pending  when  it  was  passed,  nor  to  causes  of  action  that 
arose  prior  to  February  1st,  1912.3  The  matter  in  dispute  must 
be  of  such  a  nature  as  to  be  capable  of  being  reduced  to  a  pecu- 
niary standard  of  value.4  Such  is  not  the  right  to  personal  lib- 
erty. Consequently,  an  application  for  the  writ  of  habeas  cor- 
pus cannot  be  removed ; 5  and  the  writ  of  habeas  corpus  cannot 
issue  originally  from  a  District  Court  of  the  United  States, 
to  determine  the  right  to  the  custody  of  a  child,  or  in  any  other 
case,  when  it  is  not  authorized  by  statute.6     Nor  the  right  to  a 


"Act  of  July  1,  1898,  30  St.  at 
L.  544,  §  23b  as  amended  by  Act  of 
February  5,  1903,  32  St.  at  L.  797, 
and  Act  of  June  25,  1910,  36  St. 
at  L.  838.  See  Chapter  on  Bank- 
ruptcy, infra. 

42  See  infra,  §§  62,  63. 

§  6.  1  Jud.  Code,  §  24,  36  St.  at 
L.  1087. 

2  Supra,  §  5. 

3  Jud.  Code,  §  299,  36  St.  at  L. 
1087;  Taylor  v.  Midland  Valley  R. 
Co.,  197  Fed.  323. 

4  Kurtz  v.  Moffitt,  115  U.  S.  487, 
29  L.  ed.  458.  See  also  Snow  v.  U. 
S.,  118  U.  S.  346,  354,  30  L.  ed.  207, 


209;  In  re  Burrus,  136  U.  S.  586, 
593,  597,  34  L.  ed.  500,  503,  514; 
Perrine  v.  Slack,  164  U.  S.  452.  454, 
41  L.  ed.  510,  511  ;  Whitney  v.  Dick, 
202  U.  S.  132,  50  L.  ed.  963;  Ex 
parte  Evert,  1  Bond.  197:  In  re 
Barry,  42  Fed.  113;  Clifford  v.  Wil- 
liams, 131  Fed.  100.  Such  is  not 
the  right  to  compel  the  Secretary 
of  State  to  assert  a  claim  by  the 
petitioner  against  a  foreign  govern- 
ment. U.  S.  ex  rel.  Holzondorf  v. 
Hay.  194  U.  S.  373,  48  L.  ed.  1025 
(appellate  jurisdiction). 

5  Kurtz  v.  Mofiitt,  115  U.  S.  487, 
29  L.  ed.  458. 

6  Clifford    v.    Williams.    131     Fed. 


6] 


MATTER   IN   DISPUTE. 


23 


divorce.7  It  has  been  said :  that  in  a  suit  for  a  divorce,  where 
the  plaintiff  prays  alimony  charging,  that  the  defendant  is  the 
owner  of  valuable  real  estate  and  property  interests,  and  also  re- 
ceives a  yearly  income  of  not  less  than  $10,000 ;  it  does  not  ap- 
pear that  the  value  of  the  matter  in  dispute  exceeds  the  sum  of 
$2,000,  since  it  is  uncertain  what  amount  of  alimony  the  court 
may  allow,  and  the  alimony  is  only  an  incident  to  the  right  to 
a  divorce.8  The  same  rule  has  been  applied,  by  a  State  court, 
upon  an  application  to  remove  a  suit  to  set  aside  a  decree  of 
divorce.9  It  has  been  held  that,  for  a  similar  reason,  a  suit  by 
a  stockholder  to  compel  the  corporation  to  permit  him  to  inspect 
its  books  and  records  is  not  removable,10  but  that  the  value  of 
the  right  to  appeal  from  the  probate  of  a  will  is  at  least  equal 
to  the  share  of  the  appellant  in  case  the  decedent  had  died  in- 
testate.11 

The  value  of  the  matter  in  dispute  is  not  the  amount  of 
any  contingent  loss  or  damage  which  one  of  the  parties  may  sus- 
tain by  a  decision  against  him ;  but  the  amount  in  dispute  be- 
tween the  parties  to  the  pending  suit.12  Thus,  the  reason  that, 
<»n  account  of  its  probative  force,  the  judgment  may  operate  as 
an  estoppel  in  a  subsequent  proceeding;13  or  affect  his  rights 
against  a  stranger  to  the  suit ;  "  does  not  increase  the  value  of 
the  matter  in  dispute.  In  a  suit  by  a  State  treasurer,  to  recover 
a  balance  of  unpaid  taxes,  less  than  the  jurisdictional  amount, 
where  the  defense  was,  that  the  defendant  had  tendered,  in  pay- 


100.  See  In  re  Burrus,  136  U.  S. 
586,  593,  597,  34  L.  ed.  500,  503, 
514;  Perrine  v.  Slack,  164  U.  S.  452, 
454,  41  L.  ed.  510,  511;  Ex  parte 
Evert,  1  Bond,  197  ;  In  re  Barry,  42 
Fed.  113;  also  reported  136  U.  S. 
597,  34  I,,  ed.  514. 

7  Johnson  v.  Johnson,  13  Fed.  193. 
The  court  might,  however,  take  ju- 
risdiction of  a  suit  to  enforce  a  de- 
cree awarding  alimony.  Barber  v. 
Barber,  21  How.  5S2,  16  L.  ed.  226. 

8  Bowman  v.  Bowman.  30  Fed. 
849. 

9  Caswell  v.  Caswell.  120  111.  377, 
11  N.  E.  342. 

10 Whitney  v.  Am.  Shipbuilding 
Co.,  197  Fed.  777. 


11  Erwin  v.  Walsh,  27  Fed.  579. 

12  Ross  v.  Prentiss.  3  How.  771, 
772,  11  L.  ed.  824;  Elgin  V.  Mar- 
shall, 106  U.  S.  579,  27  L.  ed.  249; 
Bruce  v.  M.  &  K.  R.  Co.,  117  U.  S. 
514. 

l3FJ<rin  v.  Marshall.  106  U.  S. 
579,  27  L.  ed.  249;  Bruce  v.  M.  Sc 
K.  R.  Co..  117  U.  S.  514,  29  L.  ed. 
990;  New  England  Mtg.  Co.  v.  Gay, 
145  U.  S.  123,  36  L.  ed.  646.  (All 
these  were  cases  of  appellate  juris- 
diction.) Mayor,  etc.,  of  Baltimore 
v.  Postal  Tel.  Cable  Co..  62  Fed. 
500. 

14  Smith  v.  Adams.  130  U.  S.  167, 
32  L.  ed.  895  (appellate  jurisdic- 
tion). 


24 


ORIGINAL    JURISDICTION. 


[§  s 


ment  of  all  the  taxes  assessed  against  him,  coupons  for  move  than 
the  jurisdictional  amount;  it  was  held,  that  the  matter  in  dispute 
was  the  right  to  tender  all  those  coupons  ;  and  that  the  case  might 
be  removed.15  Prospective  damages,  which  can  be  recovered  in 
the  action,  or  which  the  bill  is  filed  to  prevent,  should  be  con- 
sidered in  the  estimate,16  when  they  are  alleged  with  sufficient 
certainty."  Where  relief  is  prayed  in  the  alternative,  it  seems 
that  that  which  involves  the  larger  amount  is  the  test  of  the  ju- 
risdiction.18     In  a  suit  for   an   accounting,   the  jurisdictional 


19 


amount  is  the  value  of  the  fund  of  which  an  account  is  sought 

Where  the  complaint  or  declaration  contains  several  counts,  or 
causes  of  action,  in  determining  the  value  of  the  matter  in  dispute 
their  aggragate  amount  is  to  be  considered,29  unless  it  appears 
that  each  is  founded  upon  the  same  state  of  facts.21  or  that  the 
plaintiff  is  not  in  fact  the  owner  of  all  the  claims  upon  which  he 
sues.22  Thus,  where  the  complaint,  in  form,  stated  two  causes  of 
action,  each  for  the  failure  to  deliver  a  telegram,  and  each  alleg- 
ing damages  in  the  sum  of  $1,900  ;  the  only  difference  being  that 
in  one  it  was  alleged  that  the  telegram  was  addressed  to  a  wo- 
man, and  in  the  other  that  it  was  addressed  to  her  husband,  it 


"Green  v.  Brooks..  28  Fed.  215. 

16  Draper  v.  Skerrett,  116  Fed. 
206:  Southern  Cash  Register  Co.  v. 
Montgomery,  143  Fed.  700:  infra, 
§  13. 

17  Oregon  R.  &  Xav.  Co.  v.  Shell, 
125  Fed.  979. 

18  Shappirio  v.  Goldherg.  192  U. 
S.  232,  48  L.  ed.  419  (appellate  ju- 
risdiction )  :  Hayward  v.  Nordberg 
Mfg.  Co.,  85  Fed.  4.  29  C.  C.  A.  438 ;. 
Greenfield  v.  U.  S.  Mtg.  Co.,  133 
Fed.  784. 

19  Rogers  v.  Lawton,  162  Fed.  203. 

20  Judson  v.  Macon  County.  Fed. 
Cas.  No.  7,568  (2  Dill.  213)  ;  Stan- 
ley v.  Albany  County  Sup'rs,  15 
Fed.  483 :  Hammond  v.  Cleaveland, 
23  Fed.  1  :  Bernheim  v.  Birnbaum. 
30  Fed.  885:  Armstrong  v.  Ettle- 
sohn,  36  Fed.  209:  Chase  v.  Shel- 
don Roller-Mills  Co.,  56  Fed.  625: 
Bowden  v.  Burnham,  59  Fed.  752, 
8  C.  C.  A.  248,  19  U.  S.  App.  44S: 


Weaver  v.  Norway  Tack  Co.,  80 
Fed.  700 :  Bergman  v.  Innian, 
Poulsen  &  Co.,  91  Fed.  293:  Davis 
v.  Mills,  99  Fed.  39:  Southern 
Cash  Register  Co.  v.  Montgomery, 
143  Fed.  700. 

Heffner  v.  Gwynne-Treadwell  Cot- 
ton Co.,  C.  C.  A.,  160  Fed.  635; 
Spokane  Valley  Land  &  Water  Co. 
v.  Kootenai  County,  Idaho,  199  Fed. 
481. 

Kaus  v.  Am.  Surety  Co.,  199  Fed. 
972,  where  the  jurisdiction  was 
sustained  because  of  the  joinder  of 
two  causes  of  action  against  the 
same  surety,  upon  bonds  given  by 
separate  saloon-keepers,  under  the 
Iowa   Civil   Damage  Act. 

21  Pooser  v.  Western  Union  Tel. 
Co.,  137  Fed!  1001:  Baltimore  &  O. 
R.  Co.  v.  Ryan,  31  Ind.  (App.)  597, 
68  X.  E.  923. 

22Woodside  v.  Beckham,  216  U. 
S.  117.  54  L.  ed.  408. 


§  6] 


MATTER   IX   DISPUTE. 


appearing  that  the  telegram  was  the  same,  and  that  the  plain- 
tiff's counsel  could  not  determine  from  the  manuscript  as  to 
which  of  the  two  was  the  person  to  whom  the  telegram  was  ad- 
dressed ;  it  was  held,  that  the  cause  could  not  he  removed.23 
Where  the  declaration  contained  three  counts  aggregating  in  ex- 
cess  of  the  jurisdictional  amount;  the  first  upon  a  contract  for 
services  at  an  agreed  price,  less  than  this;  the  second  upon  a 
quantum  meruit  for  the  same  services,  alleging  their  value  at  a 
sum  in  excess  thereof;  the  third  for  goods  sold,  money  lent  "and 
a  like  sum  of  money  due  on  a  contract,"  such  as  that  specified 
in  the  first,  "and  a  like  sum  for  commissions"  in  effecting  the 
sales  therein  specified;  it  was  held,  that  the  court  had  jurisdic- 
tion.24 Under  the  former  statute  where  the  declaration  con- 
tained a  special  count,  on  a  fire  insurance  policy  for  $2,250, 
alleging  a  total  loss,  and  concluding,  to  plaintiff's  damage  for 
$2,000,  "for  the  recovery  of  which,  with  just  costs,  plaintiff 
brings  suit,"  and  common  counts  in  assumpsit  for  $2,000,  each 
concluding  as  in  the  first ;  it  was  held,  that  the  action  could  be 
removed.25  Where  a  complaint  in  each  of  three  counts  claimed 
for  personal  injuries  "the  sum  of  $1,900  damages,"  and  in  two 
other  counts  "the  further  sum  of  $1,900 ;"  it  was  held,  that  the 
case  could  be  removed,  although  the  court  felt  morally  certain 
that  it  was  intended  to  claim  damages  for  but  one  cause  of  ac- 
tion.26 It  has  been  held:  that,  where  it  clearly  appears  that 
the  different  causes  of  action  alleged,  consist  merely  of  the  com- 
mon counts,  the  value  of  the  matter  in  dispute  should  be  deter- 
mined by  the  amounts  named  in  the  bill  of  particulars.27  It 
makes  no  difference  if  the  claims  have  been  assigned  and  no  one 
of  them  is  equal  to  the  jurisdictional  amount.28  "Upon  a  bill 
for  an  injunction,  where  the  amount  involved  cannot  be  deduced 


23  Pooser   v.    Western   Union   Tel. 
Co...  137  Fed.  100]. 

24  Hayward  v.  Xordberg  Mfg.  Co., 
C.  ('.  A.,  85  Fed.  4. 

25  Piatt  v.  Phoenix  Assur.  Co.,  37 
Fed.  730. 

26  Thompson  v.  Southern  Ry.  Co., 
116  Fed.  800. 

27Healy    v.    Prevost,     Fed.    Cas. 
No.  6.207. 

28  Hammond     v.     Cleaveland,     23 


Fed.     1  :     Bernheim     v.     Birnbaum, 

30  Fed.  S85,  S87;  Chase  v.  Sheldon 
Roller-Mills  Co..  56  Fed.  625; 
Bowden  v.  Burnham,  50  Yi-d.  752. 
S  C.  C.  A.  248.  19  U.  S.  App.  Its. 
Bergman  v.  Inmaii.  Poulsen  &  i  'o., 
01  Fed.  203:  Davis  v.  Mills.  00 
Fed.  30;  Brigham- Hopkins  Co.  v. 
Gross,  U)7  Fed.  769.  But  see 
Waite  v.  Santa  Cruz.  184  U.  S.  302, 
46  L.  ed.  552. 


26 


OIMGINAL    JIKISIUCTION. 


[§   6 


from  the  facts  alleged,  a  simple  allegation  that  the  right  sought 
to  be  protected  is  of  the  value  of  more  than  $3,000,  exclusive  of 
interest  and  costs,  will  usually  be  held  to  be  sufficient."  29  The 
pleadings  or  the  petition  for  removal  must  show  that  the  valne 
of  the  matter  in  dispute  exceeded  the  jurisdictional  amount,30 
;.t  the  time  the  suit  was  brought.31  Where  the  complaint  was 
silent,  the  allegation  in  the  answer  was  held  to  be  conclusive.32 
An  allegation,  that  the  "amount  in  dispute"  exceeds  the  juris- 
dictional amount,  is  not  insufficient  because  it  uses  the  word 
"amount"  instead  of  "matter"  in  dispute.33  It  has  been  held: 
that  the  court  may,  where  the  bill  or  declaration  is  defective  in 
that  respect,  retain  jurisdiction  and  permit  an  amendment, 
which  shows  the  jurisdictional  value  of  the  matter  in  dispute.84 
Where  the  plaintiff  exaggerates  the  amount  in  dispute,  the  court 
may,  on  exception  properly  taken,  try  the  question  of  juris- 
diction separately,  without  a  jury;  and  if  the  damages  appear 
to  have  been  purposely  and  fraudulently  magnified,  it  may  dis- 
miss the  case;  but  its  decision  is  reviewable  by  the  supreme 
court.35     The  mere  fact  that  the  plaintiff  recovers  less  than  the 


29  Texas  &  P.  Ry.  Co.  v.  Kute- 
maii.  ('.  C.  A..  .34  Fed.  547.  See 
Hyde  v.  Victoria  Land  Co.,  125 
Fed.  970;  Louisville  &  N.  R.  Co. 
v.  Smith.  C.  C.  A.,  128  Fed.  1.  5; 
Southern  Cash  Register  Co.  v.  Na- 
tional Cash  Register  Co.,  143  Fed. 
659;  Spaulding  v.  Evenson,  140 
Fed.  933. 

30  Strasburger  v.  Beccher,  44 
Fed.  209:  Back  v.  Sierra  X.  C.  M. 
Co.,  4(1  Fed.  073;  Harvey  v.  Ra- 
leigh &  (I.  R.  Co.,  89  Fed.  115; 
Yellow  A.  M.  &  M.  Co.  v.  Win- 
chell,  95   Fed.  213. 

31  Strasburger  v.  Beecher,  44 
Fed.  209. 

32  w.  U.  Tel.  Co.  v.  White,  102 
Yv(\.   705. 

33  Blackburn     v. 
Min.   Co.,   175   C.  S 
27G. 

34  Davis  v.  Kansas  City.  S.  &  M 
R.    Co.,   32    Vcd.    863;    Johnston    v. 


Portland     Cold 
571.  44   L.  ed. 


Trippe.  33  Fed.  530;  Whalen  v. 
Gordon,  C.  C.  A.,  95  Fed.  305.  See 
Citizens'  Bank  v.  Cannon,  104  U.  S. 
319,  41    L.  ed.  451. 

35  Globe  Refining  Co.  v.  Landa 
Cotton  Oil  Co.,  100  U.  S.  540,  47  L. 
ed.  1171.  See  Chicago  Cheese  Co.  v. 
Fogg,  53  Fed.  72;  Simon  v.  House, 
40  Fed.  317;  Holden  v.  Utah  &  M. 
Mach.  Co.,  82  Fed.  209;  Horst  v. 
Merkley,  59  Fed.  502;  Maxwell  v. 
A.  T.  &  S.  F.  R.  Co.,  34  Fed.  286; 
Bedford  Quarries  Co.  v.  Welch,  100 
Fed.  513;  Bank  of  Arapahoe  v. 
David  Bradley  Co.,  C.  C.  A.,  72  Fed. 
807. 

In  Hayne  v.  Woolley,  180  Fed. 
573.  which  was  an  action  for  dam- 
ages by  trespass  in  allowing  cattle 
to  run  at  large  upon  the  plaintiff's 
land  during  the  fall  and  winter  sea- 
son, the  court  held  that  the  damages 
could  not  amount  to  more  than  $200 
or   $300,   saying:     "The    dan. age    in 


6] 


MATTER  IN  DISPUTE. 


jurisdictional  amount  does  not  justify  a  dismissal  or  a  remand.  6 
A  Texas  case  suppests  that  a  distinction  should  be  drawn  be- 
tween cases  where  the  full  amount  claimed  in  the  complaint 
is  not  recovered  because  of  the  plaintiff's  failure  to  prove  his 
allegations  of  fact  and  those  where  he  fails  because  his  claim 
is  unfounded  in  law.     It  was  held  that  where  a  demurrer  was 
sustained  to  one  of  several  claims  for  damages  joined  in  one 
complaint  and  the  aggregate  amount  thereof  was  thus  reduced 
below  the  jurisdictional  amount,  the  case  must  be  dismissed ; 3 
but  it  has  been  said  that  the  reasonable  view  would  indicate 
lhat,  when  such  claim  was  inserted  in  the  original  petition  in 
good  faith,  the  amount  involved  was  in  controversy,  and  the 
court  having  taken  jurisdiction   should  render   judgment  for 
the  remainder  of  the  claims.38    Where  the  plaintiff  sued  in  good 
faith    for    a    principal    sum,    in    excess    of    the    jurisdictional 
i, mount  and  the  defendant  proved  a  set-off,  the  exact  amount  of 
which  plaintiff  did  not  know  when  he  began  the  suit;  it  was 
held,  that  the  court  might  retain  jurisdiction.39    An  amendment 
reducing  the  plaintiff's  claim  below  $3,000  will  not  divest  the 
jurisdiction  of  the  court  over  what  remains;  nor  will  the  vol- 
untary dismissal  of  the  plaintiff's  bill  divest  the  jurisdiction  of 
the  court  over  a  crossbill  previously  filed,  to  recover  less.40    '"It 
has  been  held,  that  the  burden  of  proof,  that  the  matter  in  dis- 


this  respect,  if  any.  would  be  very 
slight.  It  is  a  matter  of  common 
knowledge  that,  in  many  instances, 
land  is  improved,  rather  than  dam- 
aged, by  permitting  cattle  to  run 
upon  it." 

36  Peeler  v.  Lathrop.  48  Fed.  780, 
1  C.  C.  A.  93.  2  U.  S.  Anp.  40; 
Washington  County  v.  Williams, 
111    Fed.  801,  49  C.  C.  A.  621. 

Put-in-Bay  Waterworks  &c.  Co. 
v.  Ryan,  181  U.  S.  409,  45  L.  ed. 
927;  Re  Cleland,  218  U.  S.  120,  54 
L.  ed.  962. 

37  Western  Union  Tel.  Co.  v.  Ar- 
nold; (Texas  1903)  77  S.  W.  249; 
affirmed,  79  S.  W.  8. 

88  Columbia  Law  Review,  March 
1904;  citing  Martin  v.  Goode,  111 
N.    G.   288,    32    Am.    St.    Rep.    799; 


Bank  of  Arapahoe  v.  David  Bradley 
&  Co.,  C.  C.  A.,  72  Fed.  867. 

39  Pickham  v.  Wheeler  B  Mfg. 
Co.,  C.  C.  A.,  77  Fed.  663;  s.  c, 
69  Fed.  419;  Stillwell  15.  &  S.  V. 
Co.  v.  Williamston  O.  &  F.  Co.,  80 
Fed.  68.  See  also  Schunk  v.  Moline 
M.  &  S.  Co.,  147  U.  S.  500,  37  L.  ed. 
255;  Kunkel  v.  Brown.  C.  C.  A.,  99 
Fed.  593;  Jones  v.  McCormiek  11. 
M.  Co.,  C.  C.  A„  82  Fed.  295;  I  lay- 
ward  v.  Nordberg  Mfg.  Co.,  C.  C.  A., 
85  Fed.  4;  Ung  Lung  Cluing  V. 
Holmes,  98  Fed.  323:  Tennent- 
Strihling  Shoe  Co.  v.  Roper.  94 
Fed.  739;  Scott  v.  Donald,  165  U. 
S.  58,  41  L.  ed.  632;  Von  Schroeder 
v.  Brit  (an.  93  Fed.  9:  infra]  SS  7, 
23. 

40  Rirby    v.    Am.    Soda    &     Foun- 


28 


ORIGINAL    JURISDICTION. 


[§  7 


pute  is  less  than  the  jurisdictional  amount,  when  the  plain- 
tiff's plisadiDg  alleges  that  fact,  rests  upon  the  defendant.41 
Under  the  former  practice  it  was  said,  that  such  an  obection 
should  be  set  up  by  a  plea  in  abatement  and  is  waived  by  an 
answer  to  the  merits.48  But  it  has  been  held:  that  the  objec- 
tion may  be  raised  by  a  general,  or  a  specific,  denial;43  and, 
if  it  appears  on  the  trial,  by  the  testimony  of  the  plaintiff  and 
his  witnesses,  that  the  amount  as  alleged  in  the  complaint  ex- 
ceeded his  reasonable  expectation  of  recovery;  the  action  should 
be  dismissed.44  It  has  been  held  that  the  statutes  and  rulings 
of  the  courts  of  the  State  are  not  conclusive  upon  the  question 
whether  a  suit  involves  the  jurisdictional  amount.45 

§  7.  Value  of  the  matter  in  dispute  in  action  for 
damages.  Where  the  suit  is  brought  upon  a  contract  in  which 
the  law  liquidates  the  damages  for  a  default,  the  amount  of 
the  damages  as  liquidated  by  the  law,  not  the  amount  named  in 
the  plaintiff's  pleading,  is  the  value  of  the  matter  in  dispute ; * 
but  where  the  alleged  cause  of  action  is  one  in  which  the  law 
does  not  liquidate  the  damages,  the  amount  for  which  the  plain- 
tiff demands  judgment  is  alone  to  be  considered;2  unless  it 
clearly  appears  that  the  amount  named  is  merely  colorable  and 


tain  Co.,   194  U.   S.   141,   48  L.   ed. 
911. 

41  Butchers'  &  Drovers'  Stock- 
Yards  Co.  v.  Louisville  &  X.  R. 
Co..  C.  C.  A.,  67  Fed.  35;  But- 
ters v.  Carney,  127  Fed.  622.  But 
see  Greene  v.  Tacoma,  53  Fed.  502. 

42  Butchers'  &  D.  S.  Y.  Co.  v. 
Louisville  &  N,  R.  Co.,  C.  C.  A., 
67  Fed.  35.  See  Pine  v.  New  York, 
103  Fed.  337;  §§  125,  293.  But  see 
Greene  v.  Tacoma,  53  Fed.  562. 

43  Greene  v.  Tacoma,  53  Fed.  562. 
44Holden   v.   Utah  &   M.  Machin- 
ery Co.,  82  Fed.  209. 

45  HefTner  v.  Gwynne-Treadwell 
Cotton  Co.,  C.  C.  A.,  160  Fed.  635. 

§  7.  i  Wilson  v.  Daniel,  3  Dal- 
las 40],  407,  1  L.  ed.  655,  657;  Bar- 
ry v.  Fdmonds,  116  U.  S.  550,  560, 
29  L.  ed.  729.  732;  Vance  v.  W. 
A.  Yandercook   Co.,   170    U.  S.   468, 


42  L.  ed.  Ill]  ;  North  Am.  T.  &  T. 
Co.  v.  Morrison,  17S  U.  S.  262,  44 
L.  ed.  1061;  Battle  v.  Atkinson,  191 
U.  S.  559,  48  L.  ed.  302,  24  S.  Ct. 
845,  affirming  115  Fed.  3S4;  Cabot 
v.   McMaster,  61   Fed.   129. 

See  Remsen  v.  C.  F.  Blanke  Tea 
&  Coffee  Co.,  189  Fed.  41  8.  Where 
the  contract  provided  for  liquidated 
damages  it  was  held  that  the  juris- 
dictional amount  was  limited  to 
that  sum.  Phillips  v.  Troutnian. 
197  Fed.  325. 

2  Wilson  v.  Daniel,  3  Dall.  401, 
40],  1  L.  ed.  655,  657;  Smith  v. 
Greenhow,  109  U.  S.  669,  27  L.  ed. 
1080;  Barry  v.  Edmonds,  116  U.  S. 
550,  560,  29  L.  ed.  729.  732;  Gor- 
man v.  Havird,  141  U.  S.  206,  35 
L.  ed.  717;  Judson  v.  Macon  County. 
Fed.  Cas.  No.  7,568  (2  Dill.  213): 
Stanley    v.    Albany    County    Sup'rs. 


§     7]  MATTER  IN  DISPUTE.  29 

beyond  a   reasonable  expectation  of  recovery.3        It  has  been 
said  that  where  th  ecoinplaint  contains  the  requisite  allegation, 
the  jurisdiction  is  not  defeated  because  other  matters  therein 
stated  have  a  tendency  to  show  that  such  allegation  is  not  well 
founded,  unless  they  are  such  as  to  create  a  legal  certainty  of 
that  conclusion.4     Should  the  latter  fact  appear,  for  the _  first 
time,  upon  the  trial,  it  seems  that  the  court  would  then  be  justi- 
fied in  dismissing  the  case  at  the  end  of  the  plaintiff's  evidence.5 
In  an  action  for  debt  upon  a  bond,  the  principal  and  interest 
alone  are  in  dispute;   and  no  more  can  be  recovered,  except 
costs,  although  the  plaintiff  lays  his  damages  at  a  much  larger 
amount.     The  value  of  the  matter  in  dispute  cannot,  therefore, 
exceed  the  principal,  with  interest  and  costs.6    In  an  action  for 
railroad  extortion,  under  a  statute  providing  that  the  injured 
party  might  recover  the  amount  of  damages  sustained  by  the 
overcharge  or  discrimination,  where  the  declaration  specified 
the  overcharges  claimed,  alleged  that  the  amount  of  the  recov- 
crv  on  that  count  should  be  a  sum  less  than  the  jurisdictional 
amount,  and  further  averred  that  the  plaintiff  had  been  dam- 
aged in  a  sum  in  excess  of  the  jurisdictional  amount  by  reason 
of  the  railway  company's  refusal  to  pay  the  damages  first  al- 
leged ;  it  was  held,  that  the  Federal  Court  could  not  have  ju- 
risdiction.7    In  a  suit  for  damages  for  a  breach  of  a  contract 
to  transport  a  passenger,  it  was  held,  that  damages  claimed  for 
loss  of  business  and  employment,  which,  it  was  alleged  that  the 
plaintiff   could  have   obtained   if  the  contract  had  been  per- 

15   Fed.   483;    Eisele   v.   Oddie,    128  73    Fed.    318;    Hampton    Stave    Co. 

Fed.  941;  Southern  Cash  Reg.  Co.  v.  v.  Gardner,  C.  C.  A.,  154  Fed.  805. 
National    Cash    Reg.    Co.,    143    Fed.  4  Henry  &  Sons  &  Co   v   Colorado- 

659;  s.  c,  143  Fed.  700.    0.  J.  Lewis  Farm  &  Live  Stock  Co.,  C.  C.  A.,  164- 

Mercantile  Co.  v.  Klepner,  C.  C.  A.,         e"  •    '  ■..        ■  r 

5  Maxwell   v.   A.  T.  &  fe.    r.   Ky. 
176  Fed.  343.  Cq     34  Fe(L  2gG<  290.  Cabot  v    Mc_ 

3  Lee  v.  Watson.  1  Wall.  337;  Masterj  G1  Fed.  129;  Holden  vi 
17  L.  ed.  557:  Bowman  v.  Chicago  utah  g  &  M  M  Co>>  82  ped.  209. 
&  N.  W.  Ry.  Co.,  115  U.  S.  611,  616,  For  Nvliat  js  sullicient  evidence  of 
29  L.  ed.  502,  504:  Smith  v.  Green-  „ood  faith,  see  Peeler  v.  Lathropr 
how,  109  U.  S.  609,  27  L.  ed.  1080;  84  Fed.  780;  infra,  §  303. 
Mayor,  etc.,  of  Baltimore  v.  Postal  6  Wilson  v.  Daniel.  3  Dallas  401, 
Tel.  C.  Co.,  02  Fed.  500;  Bank  of  407,  1  L.  ed.  655,  657. 
Arapahoe  v.  David  Bradley  &  Co.,  72  7  Barataria  Canning  Co.  v.  Louis- 
Fed.    807;     Shields  v.  McCaudlish,  ville  &  N.  R.  Co.,  143  Fed.  113. 


30  ORIGINAL    JURISDICTION.  [§    7 

formed,  were  too  remote  and  must  be  excluded  from  considera- 
tion in  the  estimate  of  the  jurisdictional  amount.8  Upon  a 
complaint  alleging  that  plaintiff  employed  defendant  to  locate 
him  on  a  half  section  of  government  land,  which  he  entered 
under  the  homestead  and  timber  acts,  for  which  service  he  paid 
defendant  $200,  and  seeking  to  recover  damages  for  false  and 
fraudulent  representations  as  to  the  quantity  and  quality  of 
limber  on  such  land;  it  was  held,  that  it  did  not  state  a  cause 
of  action  for  the  recovery  of  damages,  beyond  the  amount  paid 
defendant,  if  there  could  be  any  recovery,  and  that  the  action 
was  not  within  the  jurisdiction  of  a  ederal  court,  although 
the  damages  were  laid  in  a  sum  exceeding  the  jurisdictional 
amount.9  An  action  was  brought  by  a  city  in  a  State  court, 
to  recover  a  tax  of  $2  for  each  of  50!)  telegraph  poles  main- 
tained in  the  streets;  but  the  declaration  concluded:  "And 
plaintiff  claims  $10,000."  It  was  held,  that  the  actual  amount 
in  dispute  was  but  the  amount  of  the  tax,  $1,018,  and  that  the 
Federal  Court  could  not  take  jurisdiction  by  removal.10  The 
law  of  Arkansas  having  limited  plaintiff's  recovery,  in  an  ac- 
tion of  unlawful  detainer,  to  the  rent  due  at  the  commencement 
of  the  suit  and  up  to  the  time  of  rendering  judgment,  or  the 
value  of  the  occupation  during  the  time  of  the  unlawful  deten- 
tion of  the  premises,  with  damages  for  withholding  the  same ; 
it  was  held,  that  a  Federal  court,  in  that  State,  does  not  have 
jurisdiction  of  such  an  action,  when  the  complaint  alleges  that 
the  amount  due  is  the  rent  for  nine  months  at  $25  per  month,11 
although  damages  are  also  claimed  in  a  sum  exceeding  the  juris- 
dictional amount,  without  showing  that  plaintiff  is  entitled 
to  anything  but  actual  damages.12  A  cause  is  not  removable, 
when  the  prayer  for  relief  asks  for  "$3,000  and  all  other  proper 
relief;"  if,  under  the  pleadings,  no  other  relief  can  be  granted.13 
Where  the  State  practice  allows  no  greater  damage  than  that 
[.rayed,  the  value  of  the  matter  in  dispute  will  be  considered  to 
be  no  more  than  the  amount  stated  in  the  plaintiff's  praver  for 

8  North  American  Transporta-  U  Sand.  &  H.  Digest.  670.  §  345S. 
tion  &  Trading  Co.  v.  Morrison.  ITS  12  Battle  v.  Atkinson,  115  Fed. 
l:.  S.  262.  44  L.  ed.  1061.  384;   aff'd.  101  U.  S.  559,  48  L.  ed. 

9  Wines   v.   Cobb   Real   Estate  Co..  302. 

128   Fed.  108.  13  Baltimore  &  O.  R.  Co.  v.  Wor- 

10  Baltimore  v.  Postal  Tel.  Cable  man.  12  Iml.  (App.),  494,  40  N.  E. 
Co.,    62    Fed.   500.  751. 


§  7] 


MATTER   IN   DISPUTE. 


31 


relief,  although  the  body  of  the  complaint  contains  allegations 
showing  greater  damages.14  In  a  suit  for  the  conversion  of 
property,  upon  which  plaintiff  claimed  liens,  where  the  several 
liens  were  specifically  set  forth,  and  aggregated  less  than 
the  jurisdictional  amount;  it  was  held  that  a  Circuit  Court  of 
the  United  States  was  without  jurisdiction,  although  the  dam- 
ages claimed  were  the  amount  of  a  previous  judgment  establish- 
ing the  liens  against  the  original  debtor  for  a  sum,  including 
interest  and  other  expenses,  exceeding  the  same  to  which  judg- 
ment the  defendants,  who  had  subsequently  acquired  the  prop- 
erty, were  not  parties.15  In  an  action  for  the  denial  of  the  right 
to  vote;16  or  for  false  imprisonment;17  or  for  assault  and  bat- 
tery; or  in  any  other  case  in  which  exemplary  damages  may 
properly  be  awarded,  the  law  prescribes  no  limitation  to  the 
amount  that  can  be.  recovered,  and  the  amount  claimed  by  the 
plaintiff  is  the  sole  criterion  to  which  resort  can  be  had  in  set- 
tling the  question  of  jurisdiction.18  In  an  action  for  damages 
resulting  from  the  death  of  plaintiff's  husband  and  father,  the 

sum  named  and  prayed  for  was  " thousand  dollars ;"  it 

was  held,  that  it  did  not  appear  that  the  case  involved  the  juris- 
dictional amount.19  Where  the  plaintiff  brought  his  action  in 
the  Circuit  Court  of  the  United  States  claiming  that  it  sounded 
in  tort,  in  which  exemplary  damages  might  be  allowed  and  that 
consequently,  the  matter  in  dispute  exceeded  the  jurisdictional 
.tmount,  which  otherwise  wTould  not  have  been  the  case ;  it  was 
held,  that  he  was  estopped  from  contending,  after  the  defend- 
ant's death,  that  it  was  not  in  tort,  but  in  contract;  and  that, 
therefore,  it  might  be  revived.20 


14  Simmons  v.  Mutual  Reserve 
Fund  Life  Ass'n,  114  Fed.  785; 
Swami  v.  Mutual  Reserve  Fund 
Life  Ass'n,  110  Fed.  232;  Barber 
v.  Boston  &  M.  R.  Co.,  145  Fed.  52. 

15  Bergman  v.  Inman,  Poulsen  & 
Co..  91   Fed.  203. 

16  Wiley  v.  Sinkler,  179  U.  S.  58, 
21  8.  Ct.  17.  45  L.  ed.  84. 

17  Hynes   v.   Brigga,   41    Fed.   468. 

18  Wilson  v.  Daniel.  3  Dallas  401, 
407,  1  L.  ed.  655,  057  ;  Barry  v.  Ed- 
munds. 116  U.  S.  550.  560,  29  L.  ed. 
729.  732.     In  an  action  for  damages 


because  of  the  circulation  of  a  muti- 
lated map  with  plaintiff's  name, 
where  the  complaint  did  not  show 
special  damage,  it  was  held  that  no 
more  than  nominal  damages  could 
be  recovered  and  that  the  jurisdic- 
tional amount  was  not  involved. 
Oliraan  v.  City  of  New  York.  168 
Fed.  953. 

19  Varde    v.    Baltimore    &    O.    R. 
Co.,  57  Fed.  9  13. 

20  Iron   Gate  Bank   v.   Brady.   184 
U.  S.  665,  46  L.  ed.  739. 


32 


ORIGINAL    JURISDICTION. 


[§  8 


§  8.  Value  of  the  matter  in  dispute  in  ejectment,  and 
other  suits  to  obtain  the  possession  of  land.  It  has  been 
held:  that,  in  ejectment,  the  value  of  the  matter  in  dispute  is 
that  of  the  interest  in  the  land,  to  recover  which  the  suit  is 
brought;  although  the  defendant  claims  a  less  interest,1  or  only 
an  easement 2  in  the  same ;  together  with  any  special  damages 
that  are  alleged,  and  can  be  recovered  in  the  suit.3  It  has  been 
held  :  that  where  a  bill  to  recover  an  interest  in  lands  alleged, 
"'that  complainants  are  informed  and  believe  that  the  whole 
of  said  lands  are  worth  $12,000,  and  the  amount  demanded  by 
them  herein  is  more  than  $2,000"  was  argumentative;  since  it 
left  the  court  to  make  a  calculation,  and  was  insufficient  to  show 
the  jurisdiction.4  Under  the  former  statute  where  in  an  action 
involving  the  title  to  land,  the  plaintiff  claimed  the  right  there- 
to without  making  a  payment  of  $2,200,  demanded  by  one  of 
the  defendants,  it  was  held,  that  the  action  was  one  involving 
more  than  $2,000  and  was  removable.5  Where  no  special  acts 
of  damage  are  pleaded,  only  nominal  damages  can  be  recovered; 
and  the  amount  of  damages  alleged  in  general  language  cannot 
affect  the  value  of  the  matter  in  dispute.6  Where  the  manner  in 
which  the  land  is  used  enhances  its  value  to  the  defendant,  that 
fact  must  be  taken  into  consideration  in  the  estimate.7  It  has 
been  held  :  that  in  an  action  of  unlawful  detainer  in  Arkansas, 
in  the  absence  of  an  allegation  of  special  damages,  the  value  of 
the  matter  in  dispute  is  no  more  than  the  amount  of  two  years' 
rents,  or  the  rental  value  for  two  years  of  the  property  in  ques- 
tion, irrespective  of  its  fee  value.8 


§  8.  l\Vay  v.  Clay,  140  Fed. 
352.  See  Vieksburg,  S.  &  P.  R. 
Co.  v.  Smith,  135  U,  S.  195,  34  L. 
ed.  95;  Dupree  v.  Leggette.  140  Fed. 
77ti.  Contra,  Thompson  v.  Ken- 
drick's  Lessee,  »i  Tenn,  (5  Bawy.) 
113.  See  Jones  v.  Rowley.  73  Fed. 
286. 

2  Greene  v.  Taeoma,  53  Fed.  ~>'>2 : 
Butters  v.  Carney,  127  Fed.  (122. 
See  Vieksburg,  S.  &  P.  R.  Co.  v. 
Smith.   135    I  .  S.   195,  34  L.  ed.  95. 

8 See  Wa\  v.  Clay,  140  Fed.  352. 

4  Dupree  v.  Leggette,  140  Fed. 
776. 


5  Withers  v.  Johns  Hopkins  Place 
Sav.  Bank,  30  S.  W.  766. 

6  Way  v.  Clay,  140  Fed.  352:  Elk 
Garden  Co.  v.  T.  W.  Thayer  Co.,  179 
1  rd.  556.  under  Virginia  Code  1904, 
§§  2750,  2751. 

7  Greene  v.  Taeoma,  53  Fed.  562: 
King  v.  Southern  Ry.  Co.,  119 
Fed.  1016. 

8  Battle  v.  Atkinson,  115  Fed. 
3S4:  affirmed  191  U.  S.  559,  48  L. 
ed.  302. 


§     10]  MATTER  VE[  DISPUTE.  33 

§  9.  Value  of  the  matter  in  dispute  in  action  to  recover 
possession  of  personal  property.  In  an  action  or  proceeding 
to  recover  the  possession  of  personal  property,  it  seems,  that  the 
value  of  the  property  sought  by  the  plaintiff,  or  by  the  claim- 
ant, is  that  of  the  matter  in  dispute.1  It  is  not  enlarged  by  a 
claim  of  special  damages  for  injury  to  plaintiff's  business,  when 
the  State  practice  would  not  allow  the  recovery  thereof.2  In 
replevin  to  collect  rent  by  distress,  the  sum  claimed  as  rent,  if 
Jess  than  the  value  of  the  property  replevied,  but  where  replevin 
is  brought  as  a  means  of  trying  the  title  to  property,  then  the 
value  of  the  whole;  is  the  pecuniary  test  of  jurisdiction.3  In  a 
suit  to  compel  the  issue  to  complainant  of  a  certificate  for  cor- 
porate stock,  and  the  cancellation  of  a  certificate  previously 
issued  to  another,  the  par  value  of  the  stock  was  held  to  be  the 
value  of  the  matter  in  dispute.4  In  a  suit  to  compel  inspectors 
to  allow  complainant  an  examination  for  a  pilot's  license,  which 
they  had  refused  to  do,  where  the  complaint  alleged  that  the 
complainant  was  thereby -deprived  of  a  right  given  him  by  the 
laws  of  the  United  States,  to  his  damage  in  "over  one  thousand 
dollars,"  and  no  objection  was  made  in  the  court  of  first  in- 
stance because  of  the  inadequacy  of  the  matter  in  dispute ;  it 
was  held  upon  appeal  that  it  might  be  inferred  that  the  damages 
would  exceed  the  jurisdictional  amount.5  In  an  action  to  re- 
cover a  claim  of  less  than  $2,000,  begun  by  an  attachment  of 
property  worth  more,  claimed  by  a  receiver  who  removed  the 
cause,  it  was  held,  that  the  value  of  the  whole  property  was  that 
of  the  matter  in  dispute.6 

§  10.  Value  of  the  matter  in  dispute  in  suits  of  fore- 
closure. In  a  suit  to  foreclose  a  mortgage  or  other  lien,  the 
amount  in  dispute,  for  the  purpose  of  determining  the  jurisdic- 

§  9.     1  Peyton     v.     Robertson,     9  3  Peyton    v.    Robertson.    9    YVhea- 

Wheaton,  .527,  6  L.  ed.  15]  ;  Gibson  ton,  527,  6  L.  ed.  151;  approved  Gib- 

v.  Shufeldt,  122  U.  S.  27,  29,  30  L.  son  v.  Shufeldt,  122  U.  S.  27,  29,  30 

ed.  1083,  1084;  Hoover  &  Allen  Co.  L.  ed.  1083,  1084. 

v.    Columbia    Straw-Paper    Co.,    68  *  Ryan   v.   Seaboard   &    R.   R.   Co. 

Fed.   945;    Ryan   v.   Seaboard   R.   R.  89    Fed.    397. 

Co.,  89  Fed.  397.  5  Williams  v.   Molther,   C.  C.  A., 

2  Vance  v.  W.  A.  Vandercook  Co.,  198  Fed.  400. 

170  U.  S.  468,  42  L.  ed.  1111,  18  S.  6  Hoover    &    Allen    Co.    v.    Colum- 

Ct.  645 ;  reversing  80  Fed.  786.  bia  Straw-Paper  Co.,  68  Fed.  945. 
Fed.  Prac.  Vol.  I.— 3. 


34  ORKMXAL    JUEISDICTION.  [§    11 

tion,  is  the  sum  sought  to  be  recovered  through  the  lien;1  to- 
gether with  anv  damages  not  covered  bv  the  -lien,  for  which 
judgment  is  prayed.2  But  it  was  held  that  a  suit  by  the  vendor 
upon  a  contract  to  pay  for  land  in  installment-,  where  the  com- 
plaint prayed  the  court  to  ascertain  the  aim  unit  due  and  to 
become  due  and  to  fix  a  time  for  its  payment,  in  default  of 
which  defendant  "be  foreclosed  of  all  right  or  title  to  interest 
in  or  lien  upon  said  land;"  was  brought  not  for  foreclosure,  but 
to  determine  the  rights  of  the  parties  in  the  land,  and  that  the 
value  of  the  real  estate,  not  the  amount  due,  was  the  matter  iu 
dispute.3  In  a  suit  to  foreclose  a  mortgage  securing  the  sum 
of  $2,000,  the  bill  alleged  that  plaintiff  advanced  an  additional 
$2.25  to  pay  the  fee  for  recording  the  mortgage,  "for  which  de- 
fendant is  liable  to  him."  It  was  held:  that  the  averment  of 
liability  was  a  mere  conclusion  of  law;  and  that,  the  bill,  there- 
fore,  failed  to  show  that  more  than  $2,000  was  involved.4  The 
value  of  the  matter  in  dispute  is  not  limited  by  the  value  of 
the  property  subject  to  the  lien  or  mortgage.5 

§  11.  Value  of  the  matter  in  dispute  in  suits  to  redeem. 
In  a  suit  to  redeem  land,  the  value  of  the  equity  of  redemption 
is  the  value  of  the  matter  in  dispute.1  Where  the  bill  prayed, 
that  a  trust  deed  purporting  to  be  security  for  a  loan  and  a  sub- 
sequent deed  executed  upon  a  foreclosure  thereof  be  set  aside,  or 
in  the  alternative,  that  complainants  be  permitted  to  redeem  on 
payment  of  the  mortgage  deed,  interest  and  costs;  it  was  held, 
that  the  value  of  the  matter  in  dispute  was  that  of  the  land. 
not  the  amount  required  to  redeem.2 

§  12.  Value  of  the  matter  in  dispute  in  suits  to  quiet 
title.  In  a  suit  to  quiet  title  or  to  remove  a  cloud  therefrom, 
the  value  of  the  matter  in  controversy  is  that  of  so  much  of 
plaintiff's  property  as  is  affected  by  the  adverse  claim.1     Where 

§  10.     IGibson    v.    Shufeldt,    122  *  Less  v.  English.  85  Fed.  471.  29 

U.   S.  27.  30,  30  L.  ed.   1083.   10S4 ;  C.  C.   A.   273. 

Stillweli;  B.  &  S.  V.  Co.  v.  Williams-  5  Stillwell-Bierce     &     Smith-Vaile 

ton,  O.  &  F.  Co.,  80  Fed.  08;  Wake-  Co.  v.  Williamston  Oil  &  Fertilizer 

man     v.     Throckmorton,     124     Fed.  Co..  80  Fed.  68. 

1010.  §  11.     iCarne    v.    Russ,    152    U. 

ZLilienthal     v.     McCormick,     117  S.  250,  38.  L.  ed.  428. 

Fed.  89,  54  C.  C.  A..  475.  2  Greenfield    v.    U.    S.    Mtg.    Co., 

3  Squire    v.    Robertson,    191    Fed.  133   Fed.  784. 

733.  §   12.     1  Parker     v.     Morrill,     106 


§    12]  MATTER  IX  DISPUTE.  35 

the  land  was  part  of  a  railroad's  right  of  way,  one  hundred  feel 
distant  from  its  tracks,  which  had  never  been  used  in  the  op- 
<  ration  of  the  railroad;  it  was  hel'd  that  the  value  of  that  part  of 
the  land,  not  the  value  of  the  company's  right  to  operate  the 
railroad,  was  that  of  the  matter  in  dispute.2  In  a  suit  to  cancel 
?  paper  purporting  to  be  a  marriage  contract,  which,  if  valid, 
gave  the  alleged  wife  an  interest  in  the  property  of  the  plain- 
liff,  it  wTas  held,  that  the  amount  of  the  provision,  which  the  wo- 
man would  be  entitled  to  receive  were  the  contract  held  binding, 
was  the  value  of  the  matter  in  dispute.3  Where  plaintiff  sued  to 
quiet  title  and  to  set  aside  a  deed  of  trust  on  certain  land,  and 
also  to  vacate  a  deed  executed  to  the  purchaser  under  fore- 
*  closure  of  such  deed  of  trust,  but  asked  in  the  alternative  that, 
if  the  deeds  bo  not  set  aside,  she  be  permitted  to  redeem  on 
payment  of  the  mortgage  debt,  interest  and  costs ;  it  was  held, 
that  the  amount  involved  was  the  value  of  the  land,  and  not  the 
amount  required  to  redeem.4  Allegations  in  a  complaint  for 
the  cancellation  of  a  lease,  and  to  enjoin  the  lessees  from  using 
the  premises  :  that  the  value  of  the  leased  premises  was  $10,000  ; 
and  that  the  rental  value  of  the  property  was  $2,400  a  year;  it 
was  held,  were  sufficient  to  give  jurisdiction  to  the  Federal 
court.5  It  was  held:  that  the  Circuit  Court  has  no  jurisdiction 
of  a  suit  to  correct  an  ambiguity  in  the  deed  of  a  railroad  right 
of  way,  and  to  restrain  the  removal  of  gates  at  a  crossing  in  the 
enclosure  thereof,  where  the  value  of  the  realtv  and  the  damage 
accruing  to  adjacent  property  from  the  road's  construction 
were  not  shown  to  exceed  the  jurisdictional  amount;  and  the 
fact  that  animals  might  stray  on  the  track  through  the  threat- 
ened  openings  in  the  enclosure,  and  cause  wrecks  occasioning 
great  damage,  did  not  help  the  case;  since,  when  jurisdiction 

L'.  S.  1,  27  L.  ed.  72;   Lehigli,  Z.  &  Co.,  125  Fed.  970:  Building  &  Loan 

I.  Co.  v.  X.  J.  Z.  &  I.  Co.,  43  Fed.  Ass'n     of     Dakota     v.     Cunninham 

545;   Simon  v.  House.  46  Fed.  317;  I  Texas  189S|,  47  S.  YV.  714. 

Riggs  v.  Clark,  71  Fed.  560,  18  C.  C.  2  Union   Pac.   R.   Co.   v.   Cunning- 

A.  242,  37  U.  S.  App.  626;   Felch  v.  ham,  173  Fed.  90. 

Travis,  92  Fed.  210:  Woodside  v.  Ci-  3  Sharon    v.    Terry,    3(5    Fed.    337. 

ceroni,  93  Fed.  1,  35  C.  C.  A.  177;  See    Fidelity   &    Deposit    Co.   v.   Mo- 

( '(1\vell    v.    City    Water-Supply    Co.,  shier.   151    Fed.  S06. 

96    Fed.    769:    Cowell    v.    City    Wa-  *  Greenfield  v.  U.  S.  Mtg.  Co.,  133 

ter-Supply   Co..    121    Fed.   53,   57   C.  Fed.  784. 

C.   A.    393;    FIvde   v.   Victoria    Land  5  Reese  v.  Zinn.  103  Fed.  97. 


36 


ORIGINAL    JURISDICTION. 


[§  13 


depends  on  a  particular  sum,  suits  "where  the  right  involved 
cannot  be  calculated  in  money  are  not  within  it.6  In  suits  to 
set  aside,  as  clouds  upon  the  title  to  lands ;  a  tax ; 7  an  assess- 
ment for  a  street  improvement ; 8  and  to  cancel  certain  street 
improvement  certificates;9  it  was  held,  that  the  amount  of  the 
tax,  assessment  and  certificates,  respectively,  was  the  value  of 
the  matter  in  dispute;  not  the  value  of  the  lands  affected.10 
§  13.  Value  of  the  matter  in  dispute  in  suits  for  injunc- 
tions. In  a  suit  for  an  injunction,  the  value  of  the  matter  in 
dispute  is  that  of  the  object  of  the  bill,1  namely,  the  value,  to 
the  plaintiff,  of  the  right  for  which  he  prays  protection  ; 2  or  the 
value,  to  the  defendant,  of  the  acts  of  which  the  plaintiff  prays 
prevention ; 3  together  with  the  amount  of  the  damages  which 


6  Oregon  R.  &  Nay.  Co.  v.  Shell, 
125   Fed.   979. 

1  Douglas  Company  v.  Stone,  191 
1".  S.  557;  s.  c,  110  Fed.  812;  Pur- 
nell  v.  Page,  128  Fed.  496;  Turner 
v.  .Jackson  Lumber  Co.,  C.  C.  A., 
159  Fed.  923. 

8  Eachus  v.  Hartwell,  112  Fed. 
564. 

9  Shewalter  v.  Lexington,  143 
Fed.  161. 

10  See  infra,  §§  13-16. 

§  13.  1  Western  Union  Tel.  Co. 
v.  City  Council,  56  Fed.  419.  420; 
citing  with  approval  Foster's  Fed. 
Pr..   (2nd  ed.)   §  16. 

2  Bitterman  v.  Louisville  &  N. 
R.  Co..  207  U.  S.  205,  52  L.  ed.  171  ; 
Oleson  v.  Northern  Pac  P.  Co..  44 
Fed.  1:  Herbert  v.  Eainey,  54  Fed. 
J4S:  Nashville,  C.  &  St.  L.  Ry.  Co. 
v.  McConnell,  82  Fed.  65;  Von 
Schroeder  v.  Brittan,  93  Fed.  9; 
Humes  v.  City  of  Fort  Smith,  Ark., 
93  Fed.  857:  Maffet  v.  Quine,  95 
Fed.  199;  denying  rehearing,  93 
Fed.  347;  State  of  Arkansas  v. 
Kansas  &  T.  Coal  Co.,  96  Fed.  353; 
Delaware,  L.  &  W.  R.  Co.  v.  Frank. 
110  Fed.  6S9:  Riverside  &  A.  Ry. 
Co.  v.  City  of  Riverside,  118  Fed. 
736;   American  Fisheries  Co.  v.  Len- 


nen,  118  Fed.  869;  Cowell  v.  City 
Water-Supply  Co.,  121  Fed.  53, 
57  C.  C.  A.  393 :  reversing  decree 
96  Fed.  769:  McKee  v.  Chautauqua 
Assembly.  124  Fed.  808:  State  v. 
Frost,  S9  N.  W.  915,  113  Wis.  623; 
Morris  v.  Bean,  146  Fed.  423; 
Spaulding  v.  Evenson,  149  Fed. 
913:  Rocky  Mountain  Bell  Tel. 
Co.  v.  Montana  Federation  of  La- 
bor, 156  Fed.  809;  Northern  Pac. 
Ry.  Co.  v.  Pacific  Coast  Lumber 
Mfrs.  Ass'n.,  C.  C.  A.,  165  Fed.  1, 
11,  the  right  to  maintain  a  schedule 
of  charges  for  transportation. 

3  Cowell  v.  City  Water-Supply  Co. 
C.  C.  A.,  121  Fed.  53.  57  C.  C.  A. 
393;  reversing  decree  96  Fed.  769; 
Am.  Smelting  &  Refining  Co.  v.  God- 
frey C.  C.  A.,  158  Fed.  225.  14  Ann. 
Cas.  8 ;  Mississippi  &  Mo.  R.  R.  Co. 
v.  Ward,  2  Black.  485,  17  L.  ed. 
311;  Whitman  v.  Hubbell,  30  Fed. 
81;  Oleson  v.  Northern  Pac.  R.  Co.. 
44  Fed.  1  :  Rainey  v.  Herbert,  C.  C. 
A.,  55  Fed.  443;  American  Fisheries 
Co.  v.  Lennen.  118  Fed.  S09:  Amelia 
Milling  Co.  v.  Tennessee  Coal,  Iron 
&  R.  Co..  123  Fed.  Sll:  Memphis  v. 
Postal  Tel.  Cable  Co..  C.  C.  A.,  146 
Fed.  602. 


13] 


MATTER  IN  DISPUTE. 


37 


the  plaintiff  claims  that  he  has  already  sustained  and  prays  to 
have  awarded  to  him.4  It  is  not  limited  by  the  amount  of 
damages  claimed  by  the  plaintiff  to  have  already  accrued5. 
When  the  value  of  the  right  sought  to  be  protected  is  uncertain, 
the  averment  in  the  bill  upon  that  subject  will  usually  govern,6 
provided  it  can  be  reasonably  inferred  to  have  some  pecuniary 
value;  but  where  a  right,  such  as  that  to  inspect  the  books  or 
records  of  a  corporation,  is  ordinarily  not  one  of  pecuniary 
value,  the  rule  is  otherwise.7  In  a  bill  by  the  owner,  to  enjoin 
a  trespass,  which  it  was  alleged  would  entirely  destroy  the  use 
of  certain  land ;  it  was  held,  that  the  value  of  the  land  was  the 
test.8  Where  a  mortgagor  sued  to  enjoin  the  sale  of  land  under 
a  mortgage,  which  it  was  claimed  was  void;  it  was  held,  that 
the  value  of  the  matter  in  dispute  was  that  of  the  mortgage,  al- 
though the  suit  also  prayed  judgment  against  the  defendant 
for  monev  usurionsly  charged  and  received  bv  it,  which  was 
less  than  the  jurisdictional  amount.9  In  a  suit  by  a  mortgagee, 
to  enjoin  an  act  which  he  claimed  would  impair  the  value  of 
his  securitv,  it  was  held:  that  the  amount  of  the  damage,  which 
would  result  from  the  threatened  act,  was  the  test. 10  In  a  suit 
to  enjoin  the  illegal  seizure  of  imported  liquors ;  the  value  to 
the  plaintiff  of  the  right  to  make  such  importations,  and  of  the 
articles,  which  he  intended  to  import  and  which  defendants 
threatened  to  seize.11  When  a  railroad  company  sued  to  enjoin 
the  collection  of  penaliies  of  $500  each  by  a  commission  and  a 


4  Scott  v.  Donald,  165  U.  S.  107, 
115.  41  L.  ed.  648,  654. 

5  Scott  v.  Donald,  1 65  U:  S.  107, 
115,  41  L.  ed.  648,  654:  Whitman  v. 
Hubbell.  30  Fed.  81;  Rainey  v.  Her- 
bert, 55  Fed.  443;  Nashville,  C.  & 
St.  L.  Ry.  Co.  v.  McConnell,  82  Fed. 
65;  American  Fisheries  Co.  v.  Len- 
nen,  118  Fed.  869;  Rocky  Mountain 
Bell:  Tel.  Co.  v.  Montana  Federa- 
tion of  Labor,  156  Fed.  809. 

6  Texas  &  P.  Ry.  Co.  v.  Kuteman, 
54  Fed.  547;  Studebaker  v.  Salina 
Waterworks  Co.,  195  Fed.  164:  Mar- 
tin v.  City  Water  Co.,  197  Fed.  462; 
both  of  which  involved  the  right  to 
measure  its  charges  by  meters:   En- 


Shipbuilding 

56    Fed.    352: 
Co.     v.     Guil- 


ders v.  Supreme  Lodge  Knights  and 
Ladies  of  Honor,  176  Fed.  S32.  the 
right  of  an  insurance  association  to 
levy  an  assessment. 

7  Whitney    v.     Am. 
Co.,   197   Fed.  777. 

8  Smith  v.  Bivens, 
Northern  Pac.  Ry. 
ningham,  103  Fed.  708;  Sheriff  v. 
Turner.  119  Fed.  231.  But  see 
Hagge  v.  Kansas  City  S.  Ry.  Co., 
104  Fed.  391. 

9  Dickinson   v.  Union  Mtg.   &  Tr. 
Co..  64  Fed.  895. 

lOClapp  v.  Spokane,  53  Fed.  515. 
iiS^cott  v.  Donald.  165  U.  S.  107, 
115,  41  L.  ed.  648,  654. 


38 


ORIGINAL    JURISDICTION. 


[§    1 


shipper,  alleging  that  the  penalties,  for  which  it  would  be  sued 
in  the  future,  would  exceed  the  jurisdictional  amount;  and  that 
the  right  sought  to  be  protected  was  more  than  that  amount;  it 
was  held,  that  the  jurisdiction  sufficiently  appeared,  although 
the  dispute  arose  concerning  demurrage  to  the  amount  of 
$146.18  It  was  so  held  of  a  similar  suit  against  a  commissioner 
alone.13  In  a  suit  by  a  railroad  company,  to  enjoin  a  shipper 
from  a  multiplicity  of  suits  to  recover  overcharges;  it  was  held, 
that  the  value  of  the  matter  in  dispute  was  the  value  to  the 
plaintiff  of  the  right  to  maintain  its  schedule  rates.14  In  a  suit 
by  the  receiver  of  a  water  company  to  restrain  a  multiplicity  of 
suits  by  customers  to  compel  him  to  reduce  the  water  rates ;  it 
was  held,  that  the  value  of  the  right  to  maintain  his  schedule 
rates  was  the  test  of  jurisidction.15  In  suits  by  a  railway  com- 
pany, to  enjoin  the  scalping  or  resale  of  non-transferrable  tick- 
ets ;  the  value  of  the  business  sought  to  be  protected  was  held  to 
be  the  test.16  In  a  suit  to  restrain  the  infringement  of  a  trade- 
mark, the  value  of  the  trademark,  and  to  compel  an  account  of 
the  profits;  the  value  of  the  matter  in  dispute  is  the  value  of  the 
trade-mark,  not  the  amount  of  the  profits  which  the  defendant 
has  derived  from  its  use.17  In  a  suit  to  enjoin  the  un- 
lawful use  of  a  trade  name;  the  damages  already  incurred, 
plus  those  which  the  bill  alleged  would  be  suffered  in  the  future, 
unless  the  relief  prayed  was  granted.18  But  in  a  suit  to  enjoin 
an  unlawful  use  of  complainant's  trade  name,  where  it  was  not 
alleged  that  the  acts  complained  of  would  destroy  the  value  of 
said  name;   the  value  thereof  was  held  not  to  be  that  of  the 


12  McNeill  v.  Southern  Ry.  Co.. 
202  U.  S.  543.  548,  50  L.  ed.  1142, 
1145. 

13  Railroad  Commission  v.  Texas 
&  P.  Ry.  Co.,  C.  C.  A.,  144  Fed. 
08. 

"Texas  &  P.  Ry.  Co.  v.  Kutc- 
man.  C.  C.  A..  54    Fed.  547. 

15  Lanning  v.  Osborne.  70  Fed. 
657. 

16  Bitterman  v.  Louisville  &  X. 
R.  Co..  207  U.  S.  205,  52  L.  ed.  171  ; 
affirming  Louisville  &  X.  R.  Co.  v. 
Bitterman,   C.  C.   A.,   144    Fed.   34; 


Del.,  L.  &  W.  R.  Co.  v.  Frank.  110 
Fed.  G89.  In  a  suit  for  specific  per- 
formance of  a  contract  to  carry 
the  complainants  free  during  their 
lives,  the  value  of  the  rij^ht  to  the 
same  was  held  to  be  that  of  the 
matter  in  dispute.  Mottley  v.  Lou- 
isville &  X.  R.  Co.,  150  Fed.  40G. 

17  Symonds  v.  Greene,  28  Fed. 
834:  Hennessy  v.  Herrmann,  89 
Fed.  G69;  Draper  v.  Skerrett,  110 
Fed.  200. 

18  Draper  v.  Skerrett,  116  Fed. 
200. 


§    13]  MATTER  IN  DISPUTE.  39 

matter  in  dispute.19     In  a  suit  to  enjoin  the  unlawful  use  of 
market  quotations  posted  in  the  plaintiff's  exchange;  the  value 
of  the  exclusive  right  to  the  same  is  the  test.20     In  a  suit  to 
enjoin  the  cancellation  of  a  contract,  it  was  held,  that  the  mat-, 
ter  in  dispute  was  the  right  to  maintain  the  contract;  which  was 
to  be  measured  by  the  profits,  not  by  the  gross  receipts,  from  the 
defendant  thereunder,  nor  by  the  cost  to  the  plaintiff  of  prepa- 
ration to  perform  its  part  of  the  same.21     But  in  another  case, 
it  was  held :  that  the  value  of  the  matter  in  dispute  was  the 
amount,  which  the  plaintiff  had  contracted  to  pay  in  cash  upon 
an  exchange  of  property.22     In  suit  to  enjoin  the  use,  as  a  rail- 
road, of  a  highway,  it  was  held:  that  the  value  of  the  matter  in 
dispute  was  that  of  the  use  of  the  highway  for  the  railway  com- 
pany.2'   Where  a  suit  was  brought  by  a  city  against  a  telegraph 
company,  to  recover  $1,772  for  street  rentals  for  the  mainte- 
nance of  defendant's  poles  and  wires,  and  the  bill  prayed  for 
the  payment  of  the  rentals  or  forfeiture  of  defendant's  right  in 
the  streets,  and  that  its  occupation  thereof  should  cease ;  it  was 
held,  that  the  matter  in  controversy  was  not  necessarily  limited 
to  the  amount  of  the  money  sought  to  be  recovered ;  and  hence 
that  a  certified  petition  of  removal,  stating  that  the  value  of  the 
matter  in   controversy  was   more   than    the   statutory   amount, 
showed  that  the  amount  in  eontroversv  was  sufficient  to  confer 

%J 

Federal  jurisdiction.24  In  an  action  to  abate  a  nuisance,  it 
has  been  held:  that  the  value  of  the  article  sought  to  be  abated, 
or  of  the  acts  sought  to  be  enjoined,  is  the  test  of  the  jurisdic- 
tion. 5  It  has  been  said:  that  the  amount  involved,  for 
jurisdictional  purposes,  in  a  suit  to  enjoin  the  maintenance  of 

19  Winchester  Repeating  Arms  Co.  24  Memphis  v.  Postal  Tel.  Cable 
v.  Butler,  128  Fed.  976.  Co.,  C.  C.  A.,  145  Fed.  002. 

20  Board  of  Trade  v.  Cella  Com-  25  Mississippi  &  Mo.  R.  R.  Co.  v. 
mission  Co.,  C.  C.  A.,  145  Fed.  Ward.  2  Black,  485,  17  L.  ed.  311 
28,    where   an    allegation   that    com-  (a    railroad    bridge)  ;    Whitman    v. 


ov 


plainant     realizes    $30,000     a    year  Hubbell,    30    Fed.    81     (an    awning; 

from    the   right    it    sued   to   protect  where  the  value  of  the  right  to  use 

was  held  to  be  sufficient.  tlie  awning  was  held  to  be  the  test)  : 

21  Riverside  &  A.  Ry.  Co.  v.  Riv-  Rainey  v.  Herbert,  C.  C.  A.,  55  Fed. 

erside.   118  Fed.  730,  737.   738,  743.  443    (coke  ovens);   Am.  Smelting  & 

22[\irby    v.    Am.    Soda    Fountain  Refining   Co.   v.    Godfrey,    C.    C.   A., 

Co..  1»4  U.  S.  141,  48  L.  ed.  911.  158  Fed.  225,  14  Ann.  Cas.  8. 

23  (Meson  v.  Northern  Pac.  R.  Co., 
44  Fed.  1. 


40 


ORIGINAL    JURISDICTION. 


[§    14 


11  nuisance,  cannot  be  measured  solely  by  the  damage  suffered 
by  complainant ;  nor  by  the  actual  outlay  of  money,  which  de- 
fendant would  be  required  to  make  if  the  relief  should  be 
granted  ;  but  the  value  of  the  right,  of  which  he  is  sought  to  be 
deprived,  is  to  be  taken  into  consideration. 26  Where  there 
was  no  allegation  of  the  value  of  the  structures  sought  to  be 
abated,  which  were  obstructions  to  navigation;  and  the  damages 
alleged  to  have  been  suffered  because  of  the  same,  prior  to  the 
beginning  of  the  suit,  were  less  than  the  jurisdictional  sum;  it 
was  held :  that  the  jurisdiction  did  not  appear.27  In  a  suit  to 
enjoin  the  defendant  from  continuing  a  business,  in  violation  of 
a  contract  with  complainant,  it  was  held:  that  the  court  had 
jurisdiction,  where  the  value  of  the  plant  owned  and  operated 
by  them,  and  the  amount  of  their  annual  business,  exceeded 
such  amount.28  In  a  suit  in  the  nature  of  an  interpleader,  the 
pecuniary  test  of  the  jurisdiction  is  the  amount  claimed  by  the 
defendants,  whom  the  complainant  seeks  to  enjoin,  not  the 
amount  which  complaint  admits  to  be  due  and  seeks  to  deposit  in 


court 


29 


§  14.  Value  of  the  matter  in  dispute  upon  taxpayers' 
bills.  In  a  suit  to  enjoin  the  collection  of  a  tax,  the  amount 
of  the  tax,  not  the  value  of  the  property  which  the  defendant 
threatens  to  seize,1  nor  of  that,  the  title  to  which  is  clouded,2 
is  the  test  of  jurisdiction.  But,  it  has  been  held:  that,  where  an 
injunction  is  sought  against  the  collection  of  an  annual  tax  or 
license  fee,  imposed  upon  a  franchise  or  upon  the  right  to  ex- 
ercise a  certain  occupation,  resistance  to  the  payment  of  which 
would  result  in  the  destruction  of  the  plaintiff's  business;  the 


26  Amelia  Milling  Co.  v.  Tennes- 
see Coal,  Iron  &  R.  Co.,  123  Fed* 
811. 

27  Kenyon  v.  Knipe,  46  Fed.  309. 

28  American  Fisheries  Co.  v.  Len- 
nen,   118   Fed.   869. 

29  Hayward  &  Clark  y.  McDonald. 
C.  C.  A.,  192  Fed.  890. 

§  14.  1  Washington  &  G.  R.  Co. 
v.  District  of  Columbia,  146  U.  S. 
227.  232,  36  L.  ed.  951,  953;  King 
v.  Wilson.  Fed.  Cas.  No.  7,810  (1 
Dill.  5.35  i  :  Linehan  Railway  Trans- 
fer Co.  v.  Pendergrass,  70  Fed.  1,  16 


C.  C.  A.  585,  36  U.  S.  App.  48; 
Eachus  v.  Hartwell,  112  Fed.  564; 
Field  v.  Barber  Asphalt  Pav.  Co.. 
117  Fed.  925;  Turner  v.  Jackson 
Lumber  Co.,  C.  C.  A.,  159  Fed.  926; 
Risley  v.  City  of  Utica,  168  Fed. 
737. 

2  Douglas  Company  v.  Stone,  191 
U.  S.  557,  24  S.  Ct.  S43,  48  L.  ed. 
S01:  s.  c,  affirming  110  Fed.  812; 
Eachus  v.  Hartwell,  112  Fed.  564: 
Purnell  v.  Page,  128  Fed.  496;  Tur- 
ner v.  Jackson  Lumber  Co.,  C.  C. 
A.,  159  Fed.  923. 


§     14]  MATTEL  IN  DISPUTE.  41 

value  of  the  right  to  exemption,  including  the  threatened  dam- 
age to  that  business,  not  the  amount  of  the  tax  or  license  fee 
which  has  accrued,  is  to  be  considered.3  Upon  a  bill  to  enjoin 
an  income  tax  upon  a  salary  annexed  to  an  office,  claimed  to  be 
exempt;  the  specific  tax  sought  to  be  enforced,  not  the  right  to 
exemption,  was  held  to  be  the  test.4  It  has  been  held,  upon  a 
bill  to  enjoin  the  collection  of  a  land  tax,  filed  by  a  corporation 
claiming  an  exemption;  that  the  amount  of  the  tax  claimed  to 
be  already  due  was  the  sole,  test,  since  it  could  not  be  assumed 
that  the  assessment  for  subsequent  years  would  be  for  a  like 
amount.5  The  cases  conflict  as  to  whether,  in  a  suit  to  enjoin 
a  municipality  from  issuing  bonds  or  otherwise  incurring  in- 
debtedness, the  pecuniary  test  of  the  jurisdiction  is  the  amount 
of  the  tax,  to  which  the  complainant  would  be  thereby  subject- 
ed, or  the  whole  debt,  the  creation  of  which  complainant  seeks  to 
prevent.6  In  a  suit  to  enjoin  a  municipality  from  issuing 
bonds,  to  an  amount  charged  to  be  in  excess  of  the  constitutional 
limit  of  its  indebtedness;  the  value  of  the  power  of  the  city 
to  issue  such  bonds,  not  the  tax  to  which  the  complainant  would 
be  thereby  subject,  was  held  to  be  the  value  of  the  matter  in  dis- 
pute.7 It  has  been  held:  that  upon  a  taxpayer's  bill,  to  enjoin 
the  execution  of  a  contract  for  a  public  work ;  the  value  of  the 

3  American      Fertilizing      Co.      v.  6  In     the     following     cases.,     the 

Board  of  Agriculture,  43   Fed.  609,  amount   of   the   plaintiff's   tax    was 

11  L.R.A.  179;   Western  Union  Tel.  held  to  be   the  test:    El   Paso   Wa- 

Co.   v.   City   Council,   56    Fed.   419;  ter  Co.  v.  El  Paso,  152  U.   S.   157, 

Humes  v.  City  of  Fort  Smith,  Ark.,  159,   3S   L.   ed.   396,   397;    Colvin  v. 

93    Fed.    857;     Southern    Exp.    Co.  Jacksonville,    158    U.    S.    456,    460; 

v.    City    of    Ensley,    116    Fed.    756;  Adams  v.  Douglas  County,  Fed.  Cas. 

Hutchinson    v.    Beckham,    118    Fed.  No.  52;  McCahon,  235,  1  Kan.  627; 

399,  55  C.  C.  A.  333;   Berryman  v.  Murphy   v.   East  Portland,  42   Fed. 

Board  of  Trustees  of  Whitman  Col-  308. 

lege,   222   U.    S.    334;    Postal    Tele-  7  Ottumwa  v.  City  Water-Supply 

graph-Cable   Co.   v.   City   of  Mobile,  Co.,  C.  C.  A,  59  L.R.A.  604,  119  Fed. 

179  Fed.  955;  Jewel  Tea  Co.  v.  Lee's  315;  City  of  Helena  v.  Helena  Wa- 

Summit,  Mo.,  198  Fed.  532.  terworks  Co.,  C.  C.  A.,  173  Fed.  18; 

4Purnell  v.  Page,  128  Fed    496.  Larabee  v.  Dolley,  175  Fed.  365. 

5  Citizens'   Bank   of   Louisiana   v.  See  Brown  v.  Trousdale,  138  U.  S. 

Cannon,    164    U.    S.    319,    41    L.    ed  389,  11   Sup.  <t.  308.  34  L.  ed.  987. 

l.-)1.     Contra,  Board  of  Trustees  of  But  see  Risley  v.  City  of  Utica,  168 

Whitman  College  v.  Berryman,  156  Fed.  737. 
Fed.    112. 


42 


ORIGINAL    JURISDICTION. 


[§  15 


contract,  and  not  the  amount  of  the  tax  complainant  might  be  re- 
quired to  pay  in  consequence,  was  the  amount  in  dispute.8 

§  15.  Value  of  the  matter  in  dispute  upon  creditor's 
bills.  It  has  been  held :  that,  upon  a  creditor's  bill,  the  value 
of  the  complainant's  claim,  not  the  value  of  the  property  sought 
to  be  reached,1  nor  the  value  of  the  claim,  payment  of  which  he 
seeks  to  enjoin,2  is  that  of  the  matter  in  dispute,  when  the  cred- 
itor sues  in  his  own  right  alone;  but  that  when  the  creditor  sues 
on  behalf  of  himself  and  the  other  creditors,  for  the  administra- 
tion of  a  trust  fund,3  or  to  collect  money  or  other  property  ap- 
plicable to  the  payment  of  its  debts,4  the  amount  of  such  fund 
or  property  determines  the  question  of  jurisdiction.  In  one 
case  the  value  of  immature  claims  was  added  to  that  of  those 
a  J  ready  matured,  when  determining  the  jurisdictional  amount.5 

§  16.  Value  of  the  matter  in  dispute  upon  stockholders' 
bills.  It  has  been  held :  that  upon  stockholders'  bills,  to  en- 
force causes  of  action  belonging  to  corporations;1  or  to  enjoin 
actions,  which  are  id  Ira  vires;2  or  to  protect  the  assets  of  the 
company  from  waste,8  or  for  the  appointment  of  a  receiver  of 


8  Johnston  v.  City  of  Pittsburg, 
10(1  Fed.  753. 

§  15.  l  Werner  v.  Murphy,  60 
Fed.  7(39;  Alkire  Gr.  Co.  v.  Riehe- 
sin.m  Fed.  79;  Cowell  v.  City  Wa- 
ter-Supply Co.,  121  Fed.  53;  re- 
versing s.  c.,  9G  Fed.  769.  See 
Bruce  v.  Manchester  &  K.  R.  R. 
Co..  117  U.  S.  514,  29  L.  ed.  990; 
Estes  v.  Gunter,  121  U.  S.  183,  30 
L.  ed.  884;  Handley  v.  Stutz,  137 
C.  S.  366,  34  L.  ed.  706;  Put-in-Bay 
Waterworks  &c.  Co.  v.  Ryan,  181 
U.  S.  409.  Cf.  Huff  v.  Bid'well,  C. 
C.  A.,  151  Fed.  563. 

2Sniithson  v.  Hubbell,  81  Fed. 
593.  But  see  Taxpayers'  Bills,  su- 
pra, §  14. 

3  Putnam  v.  Timothy,  D.  G.  &  C. 
Co.,  79  Fed.  454 ;  Jones  v.  Mutual 
Fidelity  Co.,  123  Fed.  506.  See  Al- 
sop  v.  Conway,  C.  C.  A.,  18S  Fed. 
568.  But  see  Bruce  v.  Manchester 
&  K.  R.  R.  Co.,  117  U.  S.  514,  29 
L.  ed.  990. 


4  Conway  v.  Owensboro  Sav.  Bank 
&  Tr.  Co.,  165  Fed.  822,  to  enforce 
the  liability  of  stockholders. 

5  Johnston  v.   Straus,  26  Fed.  57. 
§   16.     i  Hill   v.    Glasgow   R.    Co., 

41  Fed.  610.  See  §  145.  infra.  Con- 
tra, Massa  v.  Cutting,  30  Fed.  1  : 
Harvey  v.  Raleigh  &  G.  R.  Co.,  89 
Fed.  115. 

2  McKee  v.  Chautauqua  Assem- 
bly, 124  Fed.  808;  Larabee  v.  Dolley, 
175  Fed.  305;  Howard  v.  Nat.  Tele-' 
phone  Co.,  182  Fed.  215,  where  a 
preferred  stockholder  sued  to  com- 
pel the  rescission  of  a  transfer  of  a 
majority  of  the  common  stock,  al- 
leging that  his  stock  was  of  the  par 
value  of  $3,100  and  that  this  and 
the  other  preferred  stock  was  threat- 
ened with  destruction  in  value  by 
the  illegal  control  of  the  assets  ob- 
tained by  the  transferee  of  the  com- 
mon stock. 

3  Carpenter  v.  Knollwood  Ceme- 
tery, 198  Fed.  297. 


§  IT] 


MATTER  IN  DISPUTE. 


43 


the  corporate  assets,4  or  for  the  distribution  of  the  same,5 
the  value  of  the  matter  in  dispute  is  that  of  the  corporate  right 
sought  to  be  enforced,  or  of  the  amount  of  loss  which  the  cor- 
poration would  suffer  from  the  threatened  unlawful  action,  or 
the  value  of  the  assets  of  the  corporation,  as  the  case  may  be ; 
not  the  value  of  the  plaintiff's  stock.  In  a  suit  to  compel  the 
issue  to  complainant  of  a  certificate  of  corporate  stock,  and  the 
cancellation  of  one  issued  to  another;  it  was  held,  that  the 
value  of  the  matter  in  dispute  was  at  least  the  par  value  of  the 
stock,  where  there  were  circumstances  tending  to  show  that 
the  defendants  had  valued  it  at  a  higher  sum.  6  But  in  a  suit 
to  compel  a  transfer  of  stock  and  payment  of  the  depreciation 
in  its  market  value  on  the  day  of  the  demand  for  transfer  and 
the  highest  market  value  between  that  day  and  judgment,  it 
appearing  that  the  reason  for  the  refusal  was  to  protect  the 
corporation  from  liability  for  an  inheritance  tax ;  it  was  held 
that  the  amount  of  such  tax  was  the  pecuniary  test  of  the  jur- 
isdiction,7 and  that  there  could  be  no  pecuniary  valuation  of 
the  matter  in  dispute  in  a  suit  by  a  stockholder  to  compel  the 
corporation  to  allow  him  to  inspect  its  books  and  records.8 

§  17.  Value  of  the  matter  in  dispute  when  there  are 
joint  plaintiffs.  Where  a  number  of  plaintiffs,  claiming  un- 
der the  same  title,  and  having  a  joint  or  a  common  and  un- 
divided interest  in  the  relief  sought,  unite  in  a  suit,  the  adverse 
party  having  no  interest  in  the  apportionment  or  distribution 
of  the  amount  recovered  among  them;  the  value  of  their  united 
interests  is  that  of  the  matter  in  dispute ;  at  least  when  they 
are  all  indispensable  parties.1     It  was  so  held,  of  a  suit  by 


4Towle  v.  Am.  Bldg.,  L.  &  Inv. 
Soc,  CO  Fed.  13]  ;  Robinson  v.  W. 
Va.  Loan  Co.,  90  Fed.  770;  Taylor 
v.  Decatur  M.  &  L.  Co.,  112  Fed. 
449;  Jacobs  v.  Mexican  Sugar  Co., 
130  Fed.  589;  Re  Cleland,  218  U.  S. 
120,  54  L.  ed.  9G2. 

5  Kent  v.  Honsinger,  1G7  Fed.  619. 

6  Ryan  v.  Seaboard  &  R.  R.  Co., 
89  Fed.  397,  404. 

fJessup  v.  Chicago  &  N.  W.  Ry. 
Co.,  188  Fed.  931. 

8  Whitney  v.  Am.  Shipbuilding 
Co.,  197   Fed.  777. 


§  17.  *  So  held  when  the  holders 
of  several  notes  sued  jointly  to  en- 
force a  vendor's  lien,  in  which  they 
were  all  entitled  to  share.  Troy 
Bank  v.  Whitehead  &  Co.,  222  U.  S. 
39,  56  L.  ed.  81.  Where  several  of 
the  next  of  kin  sued  to  recover  as- 
sets, converted  by  the  husband  of  an 
administratrix;  held,  that  their 
joint  interest  was  the  test  of  the 
jurisdiction.  Shields  v.  Thomas,  17 
How.  3,  15  L.  ed.  93. 


44  ORIGINAL    JURISDICTION.  [§    17 

several  of  the  next  of  kin  for  an  accounting  by  an  adminis- 
trator.2 Where  life  tenants  and  remaindermen  join  as  plain- 
tiffs in  a  bill  seeking  an  injunction  against  threatened  injury 
to  the  corpus  of  the  estate ;  the  amount  of  their  joint  interest 
is  the  test  of  jurisdiction.3  Where  a  number  of  shippers  united 
in  a  suit  to  enjoin  a  railway  company  from  enforcing  a  pro- 
posed schedule  of  charges  for  transportation,  jurisdiction  was 
maintained,  although  the  interest  of  no  single  one  of  them  was 
equal  to  the  jurisdictional  amount.4  In  proceedings  for  a 
mandamus  to  compel  the  collection  of  a  single  tax,  levied  for 
the  joint  benefit  of  all  the  relators,  in  which  they  had  a  common 
and  undivided  interest  of  different  amounts ;  it  was  held,  that 
the  value  of  the  matter  in  dispute,  upon  a  writ  of  error,  was 
measured  by  the  whole  amount  of  the  tax,  and  not  by  the  sepa- 
rate parts  of  the  same  which  each  of  the  relators  would  receive 
after  its  collection.5  In  a  suit  by  the  owners  of  separate  lots, 
who  derived  title  from  a  common  grantor,  to  quiet  their  title 
as  against  a  defendant  who  claimed  to  own  all  the  land ;  it  was 
held,  that  the  amount  in  controversy  was  the  value  of  the  whole 
tract  of  land  owned  by  the  complainants,  and  not  the  value  of 
the  lots  owned  severally  by  each.6  Where  all  the  insurers  of 
property  damaged  by  fire,  united  in  a  submission  to  arbitra- 
tion, and  afterwards  joined  in  a  bill  to  set  aside  the  award,  it 
was  held:  the  controversy  was  single,  and  the  amount  in  con- 
troversy was  the  amount  of  the  award.7  Where  several  cred- 
itors joined  in  a  suit  for  the  appointment  of  a  receiver  of  the 
assets  of  a  corporation ;  it  was  held,  that  there  was  jurisdiction, 
when  their  joint  claims  exceeded  the  jurisdictional  sum,  ex- 
clusive of  interest  and  costs;  although  each  of  their  individual 

2  Prince  v.  Towns..  33  Fed.  161;  man,  101  U.  S.  112,  118,  25  L.  ed. 
Thornton  v.  Tison,  95  Ala.  589,  10       782. 

South.  639.  5  Crawford    v.    Haller,    111    U.    S. 

3  Herbert  v.  Rainey,  54  Fed.  248:  796,  28  L.  ed.  602;  Davies  v.  Corbin, 
aff'd,  C.  C.  A..  55  Fed.  443.  112  U.  S.  36,  28  L.  ed.  627. 

4  Northern  Pac.  Ry.  Co.  v.  Pacific  6  Lovett  v.  Prentice,  44  Fed.  459. 
Coast  Lumber  Mfrs.  Ass'n.,  C.  C.  A.  7  Hartford  Fire  Ins.  Co.  v.  Bon- 
165  Fed.  1,  11.  There  the  right  of  ner  Mercantile  Co.,  56  Fed  378,  5 
the  railway  company  to  maintain  C.  C.  A.  524:  15  U.  S.  App.  134; 
the  schedule  seems  to  have  been  the  reversing:  s.  c,  44  Fed.  151,  11 
test.     See.  also,  Market  Co.  v.  Hoff-  L.R.A.  623. 


17] 


MATTER  IN  DISPUTE. 


45 


claims  was  less.8  A  finding  that  the  plaintiffs  below  were  bona 
fides  holders  of  bonds  and  entitled  to  sue  in  the  Circuit  Court, 
was  held  to  imply  that  they  were  joint  owners  and  was  sufficient 
to  support  the  jurisdiction.9 

Where  two  or  more  plaintiffs,  having  several  interests,  unite 
for  the  convenience  of  litigation  in  a  single  suit,  it  can  only  be 
sustained  as  to  those  whose  claims  exceed  the  jurisdictional 
amount.10  A  creditor's  bill  cannot  be  maintained  by  several 
complainants,  holding  independent  demands  againts  the  debtor, 
for  less  than  the  jurisdictional  amount,  although  the  aggregate 
of  all  the  demands  exceeds  the  same,  when  they  do  not  sue  on 
behalf  of  others,  not  parties.11  The  same  ruling  was  made 
when  several  tax-payers  joined  in  a  suit  to  recover  back  taxes 
that  they  had  paid.12  In  a  suit  by  heirs  for  an  accounting  by 
the  defendant  of  property  of  the  intestate,  which  he  had  re- 
ceived, and  for  a  distribution  of  the  same,  since  any  heir  might 
have  maintained  the  suit  for  his  respective  share  without  joining 
the  others,  it  was  held,  that  there  was  no  jurisdiction,  because 
the  interest  of  none  of  the  plaintiff's  exceeded  $2,000.13  It  was 
similarly  held,  when  determining  the  jurisdiction  upon  appeal 
in  a  suit  by  a  legatee,  to  compel  other  legatees  to  pay  over  to  the 
executors  assets  which  they  had  received.14  A  bill  by  several 
land  owners  to  enjoin  the  collection  or  assessment  of  assess- 
ments or  taxes  against  their  respective  property,  cannot  be 
maintained,  except  as  to  those  whose  tax  or  assessment  would 
exceed  the  jurisdictional  amount,  although  each  relies  upon  the 
same  ground  of  objection.15     It  was  so  held,  also,   as  to  the 


8  Jones  v.  Mutual  Fidelity  Co., 
123  Fed.  506. 

9  Green  County,  Kentucky  v. 
Thomas'  Executor,  211  U.  S.  598, 
53  L.  ed.  343;  Troy  Bank  v.  White- 
head &  Co.,  222  U.  S.  39,  56  L.  ed. 
81. 

10  Separate  claims,  by  different 
persons,  for  work,  labor  and  serv- 
ices, cannot  be  joined,  in  order, 
by  their  aggregate  amount,  to  con- 
fer jurisdiction,  though  a  joinder 
be  authorized  by  State  statute. 
Holt  v.  Bergevin.  60  Fed.  1. 

11  Putney    v.    YYhitmire,    GO    Fed. 


385.      See   Gibson   v.    Shufeldt,    122 
U.  S.  27.  30  L.  ed.  1083. 

12  Risley  v.  City  of  Utica,  179  Fed. 
875. 

13  Rich  v.  Bray,  37  Fed.  273,  2 
L.Pv.A.  225. 

14  Miller  v.  Clark,  138  U.  S.  223, 
225,  34  L.  ed.  966. 

15  Wheless  v.  City  of  St.  Louis, 
180  U.  S.  379,  45  L.  ed.  583:  affirm- 
ing  decree,  96  Fed.  865 ;  King  v. 
Wilson,  Fed.  Cas.  No.  7,810  (1  Dill. 
555)  ;  Schulenberg-Boeckeler  Lum- 
ber Co.  v.  Town  of  Hayward,  20  Fed. 
422. 


46  ORIGIN  AT.    JURISDICTION.  [§    17 

jurisdiction  upon  appeal.16  It  has  been  said  that  a  suit  by 
several  land  owners,  who  are  injured  by  a  common  nuisance, 
can  only  be  maintained  as  to  those  who  show  that  the  injury, 
past  and  prospective,  of  each  exceeds  the  jurisdictional 
amount."  In  a  suit  by  the  several  owners  of  water  rights  in 
a  stream,  joining  as  complainants  for  convenience  only,  to 
enjoin  the  obstruction  or  the  diversion  of  water  therefrom,  by 
defendants,  it  was  held,  that  the  matter  in  dispute  with  each 
complainant,  must  exceed  the  jurisdictional  amount  in  order 
to  give  a  Federal  court  jurisdiction.18  A  suit  under  a 
Colorado  statute,  imposing  a  certain  individual  responsibil- 
ity upon  shareholders  in  banks,  it  was  held,  could  not  be 
be  maintained,  except  by  those  creditors  whose  individual 
claims     exceeded     the     jurisdictional     amount.19  Where    it 

appeared,  from  a  bill  brought  by  a  number  of  insurance 
companies  to  set  aside  an  award  as  to  the  amount  of  a  loss. 
that  the  amount  of  insurance  given  by  each  of  the  plain- 
tiffs exceeded  the  jurisdictional  sum,  and  there  was  nothing  to 
show  that  the  loss  was  to  be  apportioned  pro  rota  to  the  amount 
of  each  policy;  it  was  held,  that  the  court  could  not  presume 
that  such  was  the  case  and  that  there  was  jurisdiction,  although 
the  total  insurance  exceeded  the  loss  fixed  by  the  award,  since 
the  insured  might  select  certain  of  the  policies  and  sue  upon 
them  for  their  full  value.20  The  consolidation  after  answer  of 
two  actions  upon  different  contracts,  brought  by  the  same  plain- 
tiff against  the  same  defendant,  which  aggregate  more  than  the 
jurisdictional  amount,  but  neither  of  which  is  separately  equal 
thereto;  does  not  render  the  consolidated  cause  removable  as 
p.  single  action,  although  the  defense  to  each  is  the  same.21 

Where  a  suit  is  brought  by  one  or  more,  for  themselves,  and 
all  others  of  class  jointly  interested,  for  the  relief  of  the  whole 
class;  the  aggregate  interest  of  the  whole  class  constitutes  the 

MOgden    City   v.   Armstrong,   ]68  19  Auer  v.  Lombard.  72  Fed.  209, 

U.   S.  224-,   42  L.  ed.  444.   18  S.  Ct.  30  C.  C.  A.  72.  33  U.  S.  App.  438. 
98;     affirming    judgment    12    Utah,  20  Hartford  Fire  Ins.  Co.  v.  Bon- 

47ii.  43  P.  119.  nei'  Mercantile   Co.,  44  Fed.   151,  1  1 

17  Hagge   v.   Kansas   City   S.    Ry.  L.R.A.  623. 

Co..   104   Fed.   391,  393.  81 E.    A.   Holmes   &    Co.   v.   U.   S. 

18  Eaton   v.    Hoge,    C.    C.    A.,    141       Fire  Ins.  Co.,   142  Fed.  863. 
Fed.  64. 


18] 


MATTER  IN  DISPUTE. 


47 


matter  in  dispute.22  Where  a  bill  by  several  taxpayers,  in 
behalf  of  all,  attacked  the  validity  of  certain  county  bonds 
issued  to  aid  in  constructing  a  railway,  prayed  an  injunction 
restraining  the  sheriff  from  collecting  a  tax  levied  for  the  pay- 
ment of  interest,  and  the  county  judge  from  making  any  further 
levies,  and  also  a  decree  that  the  bonds  were  invalid,  and  that 
all  the  holders  be  brought  in  by  publication  and  perpetually 
enjoined  from  collecting  principal  or  interest ;  it  was  held,  that 
the  main  controversy  was  as  to  the  validity  of  the  bonds ;  and 
therefore  was  not  separable,  when  determining  the  jurisdictional 
amount,  into  controversies  affecting  the  amount  due  from  the 
.separate  taxpayers.23  The  bill  or  petition  must  show  the  pe- 
cuniary interest  of  the  parties  on  whose  behalf  the  suit  is 
brought.24  But,  such  a  suit,  where  the  class  is  similarly  situat- 
ed, but  not  jointly  interested,  can  only  be  maintained  by  a 
plaintiff  whose  individual  interest  exceeds  the  jurisdictional 
amount.25  Upon  a  bill  by  a  bank,  on  behalf  of  itself  and  its 
stockholders,  to  enjoin  taxes  assessed  against  the  bank  and 
them,  which  did  not  aver  that  the  plaintiff  had  in  his  hands,  or 
under  its  control,  any  dividends  belonging  to  the  stockholders 
that  could  be  applied  to  pay  the  taxes;  it  was  held,  that  the 
claim  was  in  separate  and  distinct  rights,  and  that  the  jurisdic- 
tional amount  must  lie  determined  by  the  amount  of  the  tax, 
against  the  complainant.26 

§  18.  Value  of  the  matter  in  dispute  when  there  are 
joint  defendants.  Where  two  or  more  defendants  are  joined 
by  the  same  plaintiff  in  one  suit,  the  pecuniary  test  of  jurisdic- 


22  Hill  v.  Glasgow  R.  Co..  -41  Fed. 
610;  Towle  v.  Am.  Bldg.,  L.  &  Tnv. 
Soc,  60  Fed.  131;  Putnam  v.  Tim- 
othy, D.  G.  &  C.  Co..  70  Fed.  454; 
Johnston  v.  Pittsburg,  100  Fed. 
753:  Taylor  v.  Decatur,  M.  &  L. 
Co.,  112  Fed.  440;  Ottumwa  v. 
City  Water-Supply  Co..  C.  C.  A., 
11!)  Fed.  315.  59  L.R.A.  604;  Jones 
v.  Mutual  Fidelity  Co..  123  Fed. 
506;  McKee  v.  Chautauqua  Assem- 
bly. 124  Fed.  SOS.  See  taxpayers' 
bills.  §  14,  supra;  creditors'  bills, 
§  15,  supra;  stockholders'  bills,  §  16, 
supra;  and  eases  therein  cited. 


23  Brown  v.  Trousdale.  138  U.  S. 
380.11   Sup.  Ct.  308,  34  L.  ed.  087. 

24  Adams  v.  Douglas  County, 
Fed.  Cas.  No.  52;  McCahdn.  235,  1 
Kans.  627:  Sioux  Falls  Nat.  Bank 
v.  Swenson.  4S  Fed.  621. 

25  El  Paso  Water  Co.  v.  El  Paso, 
152  U.  S.  157.  159;  Colvin  v.  Jack- 
sonville, 158  U.  S.  456,  460;  Adams 
v.  Douglas  County,  Fed.  Cas.  No 
52;   McCahon,  235.  1  Kan.  627. 

26  Sioux  Falls  Nat.  Bank  v. 
Swenson,  48  Fed.  621. 


48  ORIGINAL    JURISDICTION.  |_§    18 

tion  is  ordinarily  the  joint  or  several  character  of  their  liability. 
If  their  liability  is  joint,  the  value  of  the  matters  in  contor- 
versy  between  the  plaintiff  and  them  all  is  that  of  the  matter 
in  dispute.1  Where  a  number  of  claims  are  so  tied  together, 
by  combination  or  conspiracy,  as  to  make  the  relief  single  in 
regard  to  the  same,  the  aggregate  amount  thereof  is  the  pe- 
cuniary test  of  jurisdiction.2  When  several  actions  at  law- 
pending  in  a  State  court  between  the  same  parties,  each  for  less 
than  the  jurisdictional  amount  but  aggregating  in  excess  there- 
of, all  depend  upon  the  same  state  of  facts,  and  by  stipulation 
judgment  is  entered  in  all  in  accordance  with  the  result  of  the 
trial  of  one;  a  single  suit  in  equity  may  be  maintained  to  re- 
strain the  enforcement  of  all  the  judgments,  on  the  ground  of 
fraud  in  obtaining  them,  and  such  a  suit  may  be  removed.3 
Where  separate  actions  at  law  by  insured  against  insurers  on 
policies,  to  which  the  same  defense  was  interposed,  and  under 
which  the  liability,  if  any,  was  proportional,  were  removed 
to  the  Federal  court,  with  the  exception  of  one  in  which  the 
amount  involved  was  insufficient;  it  was  held,  that  prosecution 
of  this  action,  as  well  as  of  the  others,  might  be  enjoined  by  a 
bill  in  equity  in  the  Federal  court  to  have  the  liabilities  of 
insurers  there  determined  and  adjusted.4  A  suit  by  heirs,  to 
set  aside  judgments,  none  of  which  exceeded  $2,000,  rendered 
by  a  probate  court  against  their  ancestor's  estate,  through  a 
fraudulent  combination,  was  held  to  be  within  the  jurisdiction 
of  the  Circuit  Court  of  the  United  States  when  the  real  estate, 
upon  which  the  judgments  were  liens,  exceeded  in  value  the 
jurisdictional  amount.5 

If  the  liability  is  several,  ordinarily,  the  suit  can  only  be 
sustained  as  against  those  whose  respective  controversies  with 
the  plaintiff  involve  matters  exceeding,  as  regards  each,  the 
jurisdictional  amount.6     Upon  a  creditors'  bill,  to  enjoin  the 

§  IS.     1  Western    Union    Tel.    Co.       reversing  Calhoun  v.  McKnight,  39 
v.     Norman,     77     Fed.     13;     Pacific       La.  Ann.  325,  1  South.  012. 
Live-Stock   Co.   v.   Hanlev,    98   Fed.  '  Virginia-Carolina    Chemical    Co. 

v.  Home  Ins.  Co..  C.  C.  A.,  113  Fed. 


327. 

SMcDaniel  v.  Traylor,  212  U.  S 
42S,  53  L.  ed.  5S4. 


1. 

5  McDaniel   v.  Traylor,  196  U.  S. 
415.  49  L.  ed.  533,  reversing  1?3  Fed. 
3  Marshall   v.    Holmes,    141.  U.   S.       338. 


589,  12  Sup.  Ct.  62,  35  L.  ed.  S70;  6  Where    Ptev.    St.    Wis.    1898. 


*< 


18] 


MATTER  IN  DISPUTE. 


49 


enforcement  of  several  attachments  against  the  debtor's  proper- 
ly; it  was  held,  that  there  was  no  jurisdiction,  when  the  amount 
of  none  of  the  attachments  exceeded  the  jurisdictional  amount.7 
Jurisdiction  cannot  be  conferred  on  a  court,  to  enjoin  the  collec- 
tion of  taxes  assessed  in  several  parishes  by  joining  in  one  bill 
against  the  different  collectors,  the  whole  amount  of  such  taxes; 
the  separate  assessments  not  being  sufficient  to  give  jurisdic- 
tion.8 In  a  suit  by  a  railroad  company  against  officers  of 
several  counties,  to  avoid  assessments  and  taxes  levied  on  its 
lands,  the  amount  involved  cannot  be  brought  within  the  juris- 
diction of  the  District  Court  by  taking  the  aggregate  of  the  sums 
involved  as  to  each  defendant;  but  the  jurisdiction  as  to  each 
must  be  determined  by  the  amount  in  controversy  between  him 
and  the  railroad  company.9  To  give  a  District  court  jurisdic- 
tion of  a  suit  to  quiet  title  to  a  tract  of  land,  in  which  a  number 
of  persons  are  joined  as  defendants,  between  whom  no  privity 
of  title  exists,  and  each  of  whom  claims  title  to  a  separate  part 
of  the  tract;  the  value  of  the  property  in  controversy  between 
each  defendant  and  the  complaint  must  exceed  the  jurisdic- 
tional amount.10-  In  a  suit  in  a  District  Court  against  a  number 
of  defendants,  to  quiet  title  to  a  tract  of  land  alleged  to  be  of 


2609a,  authorized  the  joinder  of 
several  causes  of  action  against 
several  insurance  companies  liable 
for  a  single  loss  under  several 
policies;  held,  that  since,  notwith- 
standing such  joinder,  the  liability 
of  each  was  separate,  and  not  joint, 
the  Federal  court  had  no  jurisdic- 
tion of  such  an  action  where  the  al- 
leged liability  of  each  insurance 
company  did  not  exceed  the  juris- 
dictional amount.  Wisconsin  Cent. 
Ry.  Co.  v.  Phoenix  Ins.  Co.,  123  Fed. 
9S9.  Where  Rev.  St.  Ind.  1881, 
§  2442  (Rev.  St.  1S94,  §  2597),  pro- 
vided that  "the  heirs,  devisees  and 
distributees  of  a  decedent  shall  be 
liable,  to  the  extent  of  the  property 
received  by  them  from  such  dece- 
dent'? estate,  to  any  creditor  whose 
claim  remains  unpaid;"  held,  that 
the   liability   of   two   or   more   heirs, 

Fed.  Prac.  Vol.  I.— 4. 


devisees,  or  distributees  of  a  dece- 
dent is  several,  and  not  joint,  and, 
though  another  statute  provides 
that  they  may  be  jointly  sued,  the 
Federal  court  has  no  jurisdiction  of 
a  suit  against  them  unless  the  lia- 
bility of  each  exceeds  such  amount. 
P.usey  v.  Smith,  67  Fed.  13. 

7  Chamberlain  v.  Browning,  177 
U.  S.  605  (appellate  jurisdiction). 

8  Citizens'  Bank  of  Louisiana  v. 
Cannon,  164  U.  S.  319,  41  L.  ed.  451. 

9  Walter  v.  Northeastern  R.  Co.. 
147  U.  S.  370,  37  L.  ed.  206:  Keels 
v.  Central  R.  Co.,  147  U.  S.  374,  37 
L.  ed.  208;  Northern  Pac.  R.  Co.  v. 
Walker.  148  U.  S.  391,  37  L,  ed. 
494;  Fisbback  v.  W.  I".  Tel.  Co..  KM 
1*.  S.  96,  40  L.  ed.  630. 

lOStemmler  v.  McNeill,  102  Fed. 
660. 


50  ORIGINAL    JURISDICTION.  [§    18 

sufficient  value,  to  sustain  the  jurisdiction  of  the  court;  it  must 
appear  from  the  bill,  that  all  the  defendants  have  a  privity  of 
interest,  derived  from  a  common  source  of  title,  or  that  the 
separate  claim  of  each  defendant  is  of  the  jurisdictional 
amount;  since,  where  the  defendants  claim  separately,  the  suit 
is  separable,  and  the  requisite  amount  must  be  involved  in  each 
separate  controversy.11  It  was  held,  that  two  of  several  tenants 
in  common,  who  were  citizens  of  another  State  and  had  been 
joined  in  condemnation  proceeding's  with  their  co-tenants,  and 
the  mortgagees  of  the  interest  of  one  of  the  others  who  were 
citizens  of  the  same  State  as  plaintiff,  were  not  entitled  to  a  re- 
moval of  the  proceedings  to  the  Federal  Court,  when  the  aggre- 
gate of  their  claims  exceeded  the  sum  of  jurisdiction,  hut 
the  amount  of  their  separate  claims  was  less  than  that 
amount.12 

But  in  some  cases,  in  the  nature  of  bills  of  peace,  when  de- 
fendants had  committed  or  threatened  separate  infringements 
of  the  same  right  of  the  plaintiff;  it  was  held,  that  the  value 
of  that  right  was  the  test.13  In  a  suit  to  quiet  the  title  t<» 
several  tracts  of  land,  held  by  different  defendants  under 
separate  patents,  which  plaintiff  claimed  as  assignee  of  several 
contracts  by  the  same  county  officer;  each  providing  that  on 
payment  of  the  purchase  price,  therein  specified,  a  patent 
.should  issue  for  the  land,  therein  described ;  the  bill  alleging 
that  the  purchase  money  had  been  duly  tendered  to  the  county 
officers,  who  were  made  parties  to  the  bill,  and  not  accepted  by 
them,  and  praying  that  the  patentees  be  decreed  to  hold  the 
land  in  trust  for  the  plaintiff;  it  was  held,  that,  for  the  purpose 
of  determining  the  jurisdiction  of  the  Supreme  Court  upon 
appeal,  the  suit  was  to  be  considered  as  in  effect  for  specific 
performance  of  the  county's  contracts,  and  the  matter  in  dis- 
pute was  the  aggregate  amount  tendered  to  the  county  officers, 
although  each  several  interest  of  the  patentees  was  insufficient 
had  its  owner  been  the  sole  respondent.14     It  was  held:  that  a 

llStemmler  v.  McNeill.   102   Fed.  Texas  &   P.   Ry.   Co.   v.   Dishman   & 

660;    distinguishing   Bates   v.    Car-  Tribble  (Texas),  85  S.  W.  310. 

•„   ,    *            _  13  Louisville   &   X.   R.   Co.  v.  Bit- 

pentier,    OS    Fed.    4o2;     Cooper    v.  . 

1                                                        r  terman,  C.  C.  A..  144  Fed.  34. 

Preston,  105  Fed.  403,  14  Corbin     v.     County     of     Black 

12Trotier  v.  St.  Louis,  B.  &  S.  Hawk.  105  U.  S.  059,  604.  20  L.  ed. 
Ry.  Co.,  54  N.  E.  487,   ISO  111.  471;        1130. 


§     18]  MATTEK  IN  DISPUTE.  51 

bill  for  injunction  against  taxes,  brought  by  a  railroad  company 
against  a  revenue  agent  who  represented  all  the  parties  in- 
terested, sufficiently  stated  the  jurisdictional  amount,  when  it 
alleged  that  the  taxes  assessed  amounted  to  a  specified  sum, 
much  larger  than  the  jurisdictional  limit;  and  that  a  question 
not  arising  on  the  face  of  the  bill  as  to  how  the  taxes,  when 
collected,  would  be  disposed  of,  and  in  what  proportions  and 
amounts  they  would  be  parcelled  out  to  interested  municipali- 
ties, was  immaterial.15  In  a  suit  by  a  railroad  company  against 
a  number  of  landowners,  to  enjoin  threatened  interference  with 
its  use  of  its  right  of  way  through  their  lands;  it  was  held, 
that  the  value  of  the  right  sought  to  be  protected,  and  not  the 
value  of  the  land  constituting  the  right  of  way  across  the  lands 
of  defendants,  constituted  the  jurisdictional  test.16  It  was  held : 
that  a  bill,  to  enjoin  defendants  from  diverting  the  waters  of 
a  stream,  in  violation  of  complainant's  prior  right  thereto,  which 
was  alleged  to  be  of  the  value  of  $2,000,  and  also  to  recover 
damages  in  the  sum  of  $2,500,  sustained  by  complainant  by  rea- 
son of  the  joint  action  of  defendants  in  diverting  such  waters, 
showed  the  amount  in  controversy  to  he  sufficient.17  In  suits 
by  railway  carriers,  to  restrain  different  scalpers  from  buying 
and  selling  tickets,  which  were  not  transferable;  it  was  held, 
that  the  value  of  the  matter  in  dispute  was  that  of  the  right 
to  the  injunction ;  and  the  jurisdiction  was  sustained,  although 
none  of  the  defendants  had  dealt  in,  or  threatened  to  deal  in, 
tickets  of  the  jurisdictional  amount.18  It  was  held  that,  where 
the  plaintiff  failed  to  prove  combination  between  the  defend- 
ants, the  bill  was  properly  dismissed.19  Where  a  bill  had  been 
dismissed,  which  had  been  filed  by  a  creditor  preferred  under 
an  assignment,  praying  for  a  declaration  that  the  assignment, 
with  its  preferences,  was  valid  and  that  different  attaching 
creditors,  each  of  whose  claim  was  less  than  the  jurisdictional 

15  Illinois  Cent.  R.  Co.  v.  Adams,       cific    Live    Stock   Co.   v.   Hanley.   98 
180  U.  S.  28,  21  Sup.  Ct.  251,  45  L.      Fed.  327. 
ed.    410.      Similar    is    Western    In-  "Nashville.   C.   &   St.  L.   Ry.  Co. 

...  .    „  ,,  _„  —  j    ,  <,       v.    MeConnell,    S2    Fed.    (55;    Louis- 

ion   lei.  Co.  v.  Norman.    ,  .    red.  I.J. 

ville  &    X.   R.   Co.  v.  Bitterman.   C. 
61  Louisville  &  N.  R.  Co.  v.  Smith,      (.     y    ]U  Fed    ,4.  g_  Q     20?  r    g 

C.  C.  A..  12S  Fed.  1.  03  C.  C.  A.   1.      20-     -.,   L    ed    m 

n  Morris   v.    Bean.    123    Fed.   018.  19  McDaniel  v.  Traylor.  212   U.  S. 

A   similar   ruling   was   made    in   Pa-       42S.  53  L.  ed.  584. 


52 


OIMUIXAL    JURISDICTION. 


[§  10 


amount,  be  enjoined  from  enforcing  attachments  levied  by  them 
separately ;  it  was  held,  that  the  amount  of  the  complainant's 
preferred  claim,  which  exceeded  that  sum,  was  the  test  of  the 
jurisdiction  of  the  appellate  court.20. 

§  19.  Consideration  of  interest  in  estimating  the  value 
of  the  matter  in  dispute.  The  interest  excluded  from  the 
computation  includes  interest  accrued  on  the  demand,  before 
the  suit  was  brought,  and  which  is  collected  only  as  an  incident 
of  the  principal ; 1  but  not  interest,  which  is  the  subject  of  a 
separate  contract  as  a  coupon,  and  which  might  be  the  subject  of 
a  separate  suit.2  The  face  value  of  coupons  due  before  the  suit, 
may  be  added  to  the  principal  named  in  the  bond  when  the 
jurisdictional  amount  is  determined ;?  except,  as  has  been  held 
in  a  single  case,  where  the  day  of  payment,  named  in  the  bond, 
had  not  yet  arrived,  but  by  its  terms  it  became  due  on  the  non- 
payment of  a  coupon  for  interest;  it  being  said  by  the  court, 
that  "the  coupons  cannot  be  considered  as  interest,  for  the  pur- 
pose of  maturing  the  debt,  and  as  separate  distinct  obligations 
for  the  purpose  of  giving  this  court  jurisdiction."4  Interest, 
which  has  accrued  upon  bonds  and  coupons  after  their  maturity, 
cannot  be  considered.5  Where  the  relief  sought  did  not  in- 
clude interest  as  such,  together  with  a  principal  to  which  it 
was  incidental;  but  a  calculation  of  interest  was  used  as  an 
instrumentality  in  determining  the  amount  of  damages  caused 
by  a  breach  of  warranty;6  and  where  interest  was  claimed  as 
damages,  although  not  provided  for  in  the  contract ;  7  it  was  held, 
that  such  interest  was  a  part  of  the  jurisdictional  amount. 
Where  the  bill  claimed  payment  of  a  sum  as  the  amount  of  a 
debt  for  an  advance  by  a  building  and  loan  association ;  it  was 
held,  that  the  court  could  not  arbitrarily  assume  that  it  was 


20Estes  v.  Gunter,  121  U.  S.  183, 
30  L.  ed.  884. 

§  19.  1  Moore  v.  Edgefield,  32 
Fed.  493;  Simmons  v.  Mutual  Re- 
serve Fund  Life  Ass'n,  114  Fed. 
785;  Gilson  v.  Mutual  Reserve 
Fund  Life  Ass'n,  129  Fed.  1003. 

2  Edwards  v.  Bates  County.  1G3 
U.  S.  2G9,  16  Sup.  Ct.  967,  41  L. 
ed.  155:  overruling  Howard  v. 
Bates  Countv,  43  Fed.  276. 


3  Edwards  v.  Bates  County,  163 
U.  S.  269,  16  Sup.  Ct.  967,  41  L. 
ed.  155. 

4  Home  and  Foreign  Inv.  & 
Agency    Co.    v.    Ray,    69    Fed.    657. 

5  Greene  County  v.  Kortrecht, 
C.  C.  A.,  81  Fed.  241. 

6  Brown  v.  Webster,  156  U.  S. 
328,  39  L.  ed.  440. 

7  Continental  Casualty  Co.  v. 
Spradlin,  C.  C.  A.,  170  Fed.  322. 


21] 


MATTER  IN   DISPUTE. 


53 


usurious  interest  cloaked  with  that  name.8  In  a  suit  to  fore- 
close a  mortgage,  insurance  premiums  paid  by  the  mortgagee, 
when  claimed  in  the  bill,  are  considered  to  be  a  part  of  the 
jurisdictional  amount.9 

§  20.  Consideration  of  costs  in  estimating  the  value  of 
the  matter  in  dispute.  Xorarial  fees  for  the  presentment 
and  protest  of  a  note  in  suit,  although  paid  before  the  action 
was  brought,  were  considered  to  be  costs,  not  damages,  and  ex- 
cluded from  the  computation  of  the  jurisdictional  amount. 
It  has  been  held  that  where  a  statute  authorizes  the  inclusion 
of  an  attorney's  fee  in  the  judgment,  the  same  is  part  of  the 
costs  and  is  not  included  in  the  jurisdictional  amount;  but 
that  the  case  is  otherwise  where  the  fee  is  awarded  by  stipula- 
tion and  not  by  statute.3 

§  21.  Consideration  of  counterclaims  in  estimating  the 
value  of  the  matter  in  dispute.- Whether  the  amount  of  a 
counterclaim,  pleaded  by  the  defendant,  should  be  added  to 
that  of  the  plaintiff's  claim,  to  determine  the  jurisdictional 
amount,  has  been  the  subject  of  conflicting  adjudications.1  It 
has  been  held  that' the  question  is  so  doubtful  that  a  motion  to 


8  Bldg.  &  L.  Ass'n  v.  Price,  169 
U.  S.  45,  42  L.  ed.  655,  18  S.  Ct. 
251;  Turner  v.  Southern  H.  Bldg.  & 
L.  Ass'n,  C.  C.  A.,  101  Fed.  308; 
Building  &  Loan  Ass'n  of  Dakota  v. 
Cunningham  (Texas),  47  S.  W.  714. 

9Coolidge  v.  Ray,  75  Fed.  39. 

§  20.  1  Baker  v.  Howell,  44 
Fed.  113. 

2  Peters  v.  Queen  Ins.  Co.  of 
America,   1S2    Fed.    113. 

3  Rogers  v.  Riley,  85  Fed.  471. 

§  21.  iHeld,  that  it  should  be 
in:  Stinson  v.  Dousman,  20  How. 
(U.  S.)  461,  464,  467,  15  L.  ed.  966, 
968,  969  (appellate  jurisdiction  in 
equity)  ;  Lovell  v.  Cragin,  136  U.  S. 
130,  34  L.  ed.  372  (appellate  juris- 
diction in  equity)  ;  Kirby  v.  Am. 
Soda  Fountain  Co.,  194  U.  S.  141, 
48  L.  ed.  911,  24  Sup.  Ct.  619  (ju- 
risdiction of  Circuit  Court  where 
cross-bill    was    filed)  ;     Clarkson    v. 


Manson,    4    Fed.    257     (18    Blatchf. 
443)  ;   Carson  &  R.  L.  Co.  v.  Holtz- 
claw,  39  Fed.  578;  Wolcott  v.  Wat- 
son,     46      Fed.      529:      Wolcott     v. 
Sprague,  55  Fed.   545:    Lee  v.  Con- 
tinental Ins.  Co.,  74  Fed.  424;  Price 
&  Hart  v.  T.  J.  Ellis  &  Co.,  129  Fed. 
482:    Clarkson  v.  Manson    (N.  Y.), 
60  How.  Pr.  45:    reversing  59  How. 
Pr.    480.      See    Champion   v.    Grand 
Rapids,  etc.,  Ry.  Co.,  145  Mich.  676, 
108  N.  W.  1078.    Contra*    Falls  W. 
Mfg.   Co.  v.  Broderick.  6   Fed.   654: 
La  Montague  v.  T.  W.  Harvey  Lum- 
ber Co.,  44  Fed.  645;  Bennett  v.  Ir- 
vine. 45  Fed.  705;  Industrial  &  Min- 
ing Guaranty  Co.  v.  Electrical  Sup- 
plv  Co..  58  Fed.  732,  7  C.  C.  A.  471. 
16  U.  S.  App.  190   (cross-bill)  ;  Mc- 
Kown  v.  Kansas  &  T.  Coal  Co.,  105 
Fed.  657.     Cf.  West  v.  Aurora  City. 
G  Wall.  130.  18  L.  ed.  819:  McGimty 
v.  White,  3   Dillon,  350:   s.  c,  Fed. 


54 


ORIGINAL    JURISDICTION. 


[§  21 


remand  the  cause  in  such  a  case  should  be  granted.2  Where  the 
suit  was  one  appealed  from  a  justice  to  the  State  Circuit  Court. 
and  defendant  filed  there  a  plea  of  set-off.  claiming  $:3,000 
against  plaintiff,  but  under  the  statute  of  Tennessee  he  could 
recover  no  more  than  $500  in  that  court;  it  was  held,  that  the 
latter  sum  was  "'the  matter  in  dispute.*'  and  the  Federal  court 
could  have  no  jurisdiction  by  removal  under  the  act  of  1n7.*>.3 
Where  the  counterclaim  belongs  to  a  class  which,  by  the  State 
practice  is  barred  unless  pleaded  in  the  suit ;  it  must  be  added  to 
the  sum  demanded  by  the  plaintiff  when  determining  the  juris- 
dictional amount.4  It  has  been  said  that  a  defendant  who 
pleads  a  counter-claim  in  a  court  of  the  United  States  is 
(  stopped  to  deny  jurisdiction  because  of  the  insufficiency  of  the 
amount  in  dispute.5  An  adjudication  sustaining  a  set-off,  coun- 
terclaim, or  partial  defense,  so  as  to  reduce  the  recovery  below 
the  jurisdictional  amount,  something  still  being  allowed  the 
plaintiff;  is  no  reason  for  a  dismissal  or  remand;  provided  that 
it  does  not  appear  that  the  original  claim  was  exaggerated  in 
bad  faith.6  The  filing' of  a  cross-bill,  by  one  defendant  against 
another,  does  not  deprive  him  of  the  right  of  removal.7  It  has 
been  held:  that  the  pleading,  by  the  original  defendant,  of  a 
counterclaim,  or  demand  in  reconvention,  which  exceeds  the 
jurisdictional  amount,  does  not  put  the  original  plaintiff  in 
the  position  of  a  defendant  so  that  he  can  remove  the  case.8 


(as.  No.  8.802:  Sturgeon  River 
Boom  Co.  v.  W.  H.  Sawyer  Lumber 
Co.,  89  Fed.   1]3. 

2  Crane  Co.  v.  Guanica  Centrale 
iS.  D.  X.  Y.)    132  Fed.  713. 

3  New  York  I.  &  P.  Co.  v.  Mil- 
burn  Gin  &  Machine  Co..  3o  Fed. 
225.  Cf.  Bennett  v.  Forrest.  69 
Fed.  421. 

4I.ee  v.  Continental   I.  & 
74  Fed.  424. 

5  O.    J.    Lewis    Mercantile 
Klepner.   C.   C.   A.,   176   Fed 

6  Lozano  v.  YVehmer. 
7  .">.">:  Peeler  v.  Lathrop.  48  Fed. 
780.  1  C.  C.  A.  93,  2  U.  S.  App.  40; 
Wheeler  Bliss  Mfg.  Co.  v.  Pickham, 


S.   Co., 

Co.    v. 
343. 
22     Fed. 


69  Fed.  419:  Stillwell-Bierce  & 
Smith-Yaile  Co.  v.  Williamston  Oil 
&.  Fertilizer  Co..  SO  Fed.  68?  Wash- 
ington County  v.  Williams.  Ill  Fed. 
801,  49  C.  C.  A.  021. 

7  Jackson  &  S.  Co.  v.  Pearson,  60 
Fed.  113,  123.  Contra.  Bennett  v. 
Devine,  45  Fed.  70.")  (counter- 
claim i . 

8  Waco    Hardware    Co.    v.    Michi 
gan    Stove    Co..    C.    C.    A..    91    Fed 
289;    McKown  v.  Kansas  &  T.  Coal 
Co.,     105     Fed.     657:     Smithes     \ 
Smith    (Texas).    80    S.    W.    646:    re 
hearing     -ranted     81      S.     W.     283. 
Contra.   Price  &   Hart   v.  T.  J.  Elli- 
&  Co..   129   Fed.  482. 


§  23] 


MATTES   IX   DISPUTE. 


55 


§  22.  Effect  of  admissions  by  the  defendant  upon  the 
value  of  the  matter  in  dispute.  An  admission  or  disclaimer, 
in  the  defendant's  answer,  which  makes  the  subsequent  matter 
in  dispute  less  than  the  jurisdictional  amount,  will  not  divest 
t he  Federal  court  of  jurisdiction  of  a  suit  beg'nn  there  by  the 
plaintiff;1  but  where  the  plaintiff  sued  to  recover  the  posses- 
sion of  a  large  tract  of  land,  and  the  defendant,  in  a  plea  of 
abatement,  denied  that  he  was  in  possession  of  more  than  a- 
small  part  of  the  same,  and  alleged  that  the  value  thereof  was 
less  than  the  jurisdictional  amount;  the  court  intimated  with- 
out deciding  that  the  jurisdiction  might  be  thereby  defeated.8 
Whether  such  an  admission  or  disclaimer  will  defeat  the  right 
of  removal  has  not  yet  been  authoritatively  decided.3  Where 
the  defendant,  before  a  removal  was  attempted,  admitted  the 
plaintiff's  claim,  but  disputed  the  validity  of  an  attachment  in 
the  case,  and  made  no  formal  claim  for  damages;  it  was  held, 
that  sufficient  did  not  appear  to  show  that  the  matter  in  dispute 
exceeded  the  jurisdictional  amount,  although  the  property  at- 
tached was  more  than  that  sum.4 

§  23.  Effect  of  a  defense  apparent  in  the  plaintiff's 
pleading  upon  the  value  of  the  matter  in  dispute.  The  fact 
that  the  plaintiff's  pleading  shows  a  sufficient  defense  to  part 
of  his  claim  to  reduce  it  below  the  jurisdictional  amount,  does 
not  divest  the  court  of  jurisdiction;1  unless  it  is  apparent  that 
that  part  of  the  claim   was  not  made  in  good  faith,  but  was 


§22.  1  Re  Metropolitan  Kail- 
way  Receivership,  208  CJ.  S.  90,  52 
L.  ed.  403;  Fuller  v.  Metropolitan 
Life  Ins.  Co..  37  Fed.  103:  Stillwell- 
Bierce  &  Smith-Vaile  Co.  v.  YYil- 
liamston  Oil  &  Fertilizer  Co..  80 
Fed.  G8. 

2  Jones    v.    Rowley.    73    Fed.    286. 

3  A  decision  of  a  State  court 
seems  to  hold  that  it  will  defeat 
the  right  of  removal.  Thompson 
v.  Kendrick's  Lessee.  G  Term.  (5 
Hayw.)  113.  But  see  supra,  §  6. 
See  Cooper  v.  Preston.  105  Fed. 
403. 

4  Keith  v.  Levi,  2  Fed.  743  (  1 
McCrarv.  343). 


§  23.  1  Schunk  v.  Moline,  Mil- 
burn  &  Stoddart  Co..  147  U.  S.  500. 
13  Sup.  Ct.  Rep;  416,  37  L.  ed.  255, 
following  Gaines  v.  Fuentes,  92  U. 
S.  111.  23  L.  ed.  524:  Upton  v.  Mc- 
Laughlin. TO.",  0.  S.  640,  26  L.  ed. 
1197.  and  distinguishing  Bowman 
v.  Chicago  &  X.  W.  Ry.  Co..  L15 
U.  S.  till.  G  Sup.  Ct.  102.  29  I.,  ed. 
502;  Johnston  v.  Straus,  20  Fed. 
57:  Hardin  v.  Cass  County,  42 
Fed.  G52  (statute  of  limitations)  : 
Industrial  &  Min.  G'y.  Co.  v.  Elec- 
trical Supply  Co..  C.  C.  A..  38  Fed. 
732:  Hank  of  Arapahoe  v.  David 
Bradley  &  Co..  C.  C.  A.,  72  1-Vd. 
SG7:     Interstate    Building    &    Loan 


5G 


ORIGINAL    JURISDICTION. 


[§    H 


manifestly  fictitious;2  or  else  that  the  court  has  no  jurisdiction 
thereof.3 

§  24.  Suits  arising  under  the  Constitution  or  laws  of  the 
United  States.  In  general.  A  suit  arises  under  the  Consti- 
tution or  law  of  the  United  States  whenever  its  correct  decision 
depends  on  the  construction  of  either.1  It  has  been  said:  that 
i!  suit  cannot  be  removed,  from  a  State  court  to  a  Federal  court. 


Ass'n  v.  Edgefield  Hotel  Co.,  109 
Fed.  092;  Waterfield  v.  Rice,  111 
Fed.  625,  49  C.  C.  A.,  504  (statute  of 
limitations)  ;  Washington  County  V. 
Williams,  C.  C.  A.,  Ill  Fed.  801, 
811;  Board  of  Com'rs  of  Kearny 
County,  Kan.  v.  Vandriss,  C.  C.  A., 
115  Fed.  866  (statute  of  limita- 
tions).    . 

2  Edwards  v.  Bates  County,  55 
Fed.  436;  reversed  on  another 
point,  103  U.  S.  269,  273;  Chicago 
Cheese  Co.  v.  Fogg,  53  Fed.  72. 

3  Coulter  v.  Fargo,  127  Fed.  912, 
62  C.  C.  A.   144. 

§  24.  1  Cohens  v.  Virginia,  6 
Wheat.  264,  379,  5  L.  ed.  257,  285; 
Feibelman  v.  Packard,  109  U.  S.  421, 
27  L.  ed.  984:  Tennessee  v.  Davis, 
100  U.  S.  257.  264,  25  L.  ed.  648, 
050:  Starin  v.  New  York,  115  U.  S. 
248,  257,  29  L.  ed.  388,  390:  South- 
ern Pac.  R.  Co.  v.  California,  118 
U.  S.  109,  112,  30  L.  ed.  103.  104; 
Wiley  v.  Sinkler,  179  U.  S.  58,  45  L. 
ed.  84:  Swafford  v.  Templeton,  185 
I.  S.  487.  46  L.  ed.  1005;  New  Or- 
leans v.  Seixas  (Louisiana),  35  La. 
Ann.  36;  McKee  v.  Brooks  (Texas), 
64  Tex.  255.  Complainant  brought 
suit  in  a  State  court  to  subject  a 
judgment,  obtained  by  the  defend- 
ant against  the  United  States  in 
the  Court  of  Claims,  to  the  pay- 
ment of  a  judgment  lie  had  against 
defendant,  and  for  an  injunction  to 
i  est  rain  defendant  from  collecting, 
transferring,  or  otherwise  dispos- 
ing of   said   claim   against  the  gov- 


ernment, and  for  the  appointment 
of  a  receiver  to  collect  and  hold 
the  fund.  The  suit  was  removed 
to  the  United  States  court,  and, 
upon  motion  to  remand,  held,  that 
it  involved  the  construction  of  R. 
S.  §  3477,  which  declares  that  all 
"transfers  and  assignments  made  of 
any  claim  upon  the  United  States 
.  .  .  shall  be  absolutely  null  and 
void,  unless  they  are  freely  made, 
and  executed  in  the  presence  of  at 
least  two  attesting  witnesses,"  &c, 
and  the  motion  was  therefore  denied. 
Wiljard  v.  Mueller,  23  Fed.  209.  A 
proceeding  to  exclude  a  bridge 
company  from  the  use  of  a  fran- 
chise to  operate  railroad  tracks 
in  a  public  street  does  not  raise  a 
Federal  question,  although  such 
tracks  lead  to  its  bridge,  built  un- 
der Acts  July  14,  1862,  and  Feb. 
17,  1805,  authorizing  the  construc- 
tion of  a  railroad  bridge  over  the 
Ohio  river,  and  declaring  that  it 
"shall  be  a  lawful  structure,  and 
shall  be  recognized  and  known  as 
a  post  route,"  since  those  acts  do 
not  attempt  to  give  the  right  to 
the  use  of  the  street  as  an  ap- 
proach. Kentucky  v.  Louisville 
Bridge  Co..  42  Fed.  241.  In  an  ac- 
tion against  a  railroad  company 
to  enforce  a  schedule  of  rates 
adopted  by  the  railroad  commis- 
sioners, the  State  court  refused  to 
remove  the  cause  to  the  Federal 
court  on  the  ground  that  under 
Act    of   Congress   of   Julv    25.    1866. 


24]       SUITS   UNDER  FEDERAL   CONSTITUTION   OR  LAWS. 


simply  because,  in  its  progress,  a  construction  of  the  Constitu- 
tion or  a  law  of  the  United  States  may  be  necessary,  unless  it, 
in  part  at  least,  arises  out  of  a  controversy  in  regard  to  the 
operation  and  effect  of  some  provision  in  that  Constitution  or 
law  upon  the  facts  involved.2  In  order  to  remove  a  cause,  on 
the  ground  that  it  arises  under  a  statute  of  the  United  States, 
the  record  must  affirmatively  show,  from  the  facts  alleged,  that 
some  disputed  construction  of  the  statute  will  arise  for  decision. 
Where  the  contest  is  about  the  facts  only,  there  can  be  no  re- 
moval.3 A  case  removed  to  a  Federal  court,  on  the  ground 
that  the  suit  arose  under  the  Constitution  or  laws  of  the  United 
States,  will  be  remanded  where  the  record  fails  to  show  that 
there  will  arise  some  contested  point  of  law  depending  upon 
the  Constitution  or  laws  of  the  United  States,  what  the  ques- 


its  road  in  the  State  was  made  sub- 
ject   to   national    control    only,    and 
therefore   was   not   subject  to   State 
legislation;   the  act  referred  to  giv- 
ing defendant's  lessor  aid  in  the  con- 
struetion  of  the  road,   which   in  all 
other  matters  was  to  be  governed  by 
the    law    of    the    State.      State    v. 
Southern    Pac.   Co.,   23   Or.   424,   31 
Pac.    960.      No    removable    question 
arises  from  the  fact  that  plaintiff  ac- 
quired title  from  the  United  States 
to  the  funds  loaned  defendant,  and 
to    recover    which    suit    is    brought. 
Houston    &    T.    C.   R.   Co.    v.    State 
(Texas),  41    S.   \V.  157.     The  State 
of    South    Carolina    filed    a    bill    in 
one  of  its  own  courts,  alleging:  that 
defendant  corporation  was  chartered 
by  the  State  to  build  and  operate  a 
railroad    between    the    interior    and 
the  seaboard;  that  since  it  was  built 
the  Central  Company,  a  Georgia  cor- 
poration,   and    a    competitor    of    de- 
fendant,   had    purchased   enough    of 
the  stock  and  bonds  of  defendant  to 
give    it    control    of   the   corporation, 
and    had    diverted    the    business    of 
defendant,     and     crushed     competi- 
tion;    that     the     Central    Company 


had  no  power  to  purchase  stock   in 
defendant     corporation,     and     that 
the    latter    was    disabled    to    fulfill 
the     purposes     for     which     it     was 
chartered.      It     prayed     that     such 
holding    by    the    Central    Company 
be    declared    ultra    vires,    and    that 
defendant's  .  charter     be     forfeited. 
The    petition     for    removal    alleged 
that  the   Central   Company  was   an 
instrument       of       interstate       com- 
merce,   and    that    for    the    purposes 
of    such    commerce,    and    under    the 
interstate    commerce    clause,    of   the 
Constitution    and    the    laws    passed 
in   pursuance  thereof,   it  had   power 
to   purchase   defendant's   stock,    and 
control    its    operation.      Held,    that 
the    determination    of    the     contro- 
versy   thus    developed    involved    the 
construction     of     the     Constitution 
and  laws  of  the  United  States,  ami 
so     presented     a     Federal     question. 
South  Carolina  v.  Port  Royal  &  A. 
K.  Co.,  56  Fed.  333. 

2(iold    Washing    &    Water    Co.    v. 
Keyes.  96  U.  S.   109.  24   L.  ed.  656. 

3  Austin    v.    Gagan,    39    Fed.    626, 
5  L.R.A.  476. 


58 


OKIGINAL    JURISDICTION. 


[§  M 


tion  is  and  how  it  will  arise.4  It  has  been  said:  that  a  cause 
is  not  removable  simply  because  an  act  of  Congress  must  be 
construed  or  applied;  but  that  there  must  be  a  dispute  as  to 
the  construction  of  the  act,  and  facts  to  show  the  dispute  must 
appear  in  the  record.5  It  has  been  held:  that  a  bill  by  one 
railroad  company  against  another  and  its  employees,  to  enforce 
the  interstate  commerce  act,  by  enjoining  the  defendants  from 
refusing  to  receive  plaintiff's  cars,6  and  one  to  enjoin  a  common 
carrier  from  enforcing  an  unreasonable  rate  for  transportation,7 
in  violation  of  the  same  statute;  arose  under  the  Constitution 
and  laws  of  the  United  States.  Tt  has  been  held:  that  an 
application  for  a  mandamus,  to  compel  a  railroad  engaged  in 
interstate  commerce  to  run  its  trains  to  a  certain  station,  in 
obedience  to  a  State  statute,  involves  a  Federal  question,  since 
a  judgment  therein  may  impose  a  burden  on  interstate  com- 
merce.8 But,  it  has  been  said,  that  a  constitutional  question 
is  not  presented  where  the  court  has  occasion  to  apply  the  rules 
of  the  common  law  regulating  transportation  charges,  whether 
or  not  the  carriage  be  interstate.9  Suits  to  enjoin  combina- 
tions 10  and  to  cancel  agreements  n  which  are  in  restraint  of  com- 
merce between  States,  arise  under  the  laws  of  the  United  States. 
A  suit  to  determine  the  validity  of  the  action  of  State  author- 
ities with  reference  to  a  tax  imposed  by  the  United  States  in- 
volves a  Federal  question.12  A  cause  involving  the  question 
whether  an  express  company  or  its  customer  must  furnish  the 
stamp  required  by  the  war  revenue  act  of  USDS,  to  be  affixed  to 
a  receipt  given  by  the  company,  is  one  arising  under  a  law  of 
the   United  States.13     So  do  suits  brought  by  a   State  attorney 


4  McFadden  v.  Robinson,  22  Fed. 
10.  10  Sawyer,  398. 

5  Fitzgerald  v.  Missouri  Pae.  R. 
Co..  45  Fed.  812. 

6  Ex  parte  Lennoh,  166  C  S.  548, 
41    L.  ed.   11  Id. 

7  Macon  Grocery  Co.  v.  Atlantic 
(oast  Line  R.  R.  Co.,  21.1  C.  S.  501, 
:>4  L.  ed.  300.  affirming  Atlantic 
Coast  Line  R.  Co.  v.  Macon  Grocery 
Co..  c.  C.  A..  166  Fed.  206;  Tift  v. 
Southern  Ry.  Co..  123  Fed.  78'.); 
Kalispell  Lumber  Co.  v.  Great 
Northern    Ry.    Co.,    157     Fed.    845; 


Sunderland   Bros.   v.   Chicago,   R.   I. 
&    P.  Ry.  Co.,   158  Fed.  s?7. 

8  Illinois  v.  Rock  Island  &  P.  R. 
Co..  71    Fed.  753. 

9  Mm  ray  v.  Chicago  &  N.  W.  Ry. 
Co..  92  Fed.  868,  33  C  C.  A.  62; 
affirming  02   Fed.  24. 

io  Mannington  v.  Hocking  Valley 
Ry.  Co..   183   Fed.  133. 

11  Chalmers  Chemical  Co.  v.  Chad- 
eloid  Chemical  Co..  175  Fed.  995i 

12  Dinsmore  r.  Southern  Exp.  Co., 
92  Fed.  714. 

13  Crawford   v.    Hubbell,    89    Fed. 


§-  24]       SUITS    L'.XUKlt   FEDERAL   CONSTITUTION   OK   LAWS. 


59 


general,  to  test  the  validity  of  a  consolidation  of  railroad  com- 
panies, which  affect  their  rights  under  acts  of  Congress.14  It 
has  been  said  that  where  the  plaintiff  pleads  a  breach  of  the 
rules  and  regulations  made  by  a  Department  of  the  United 
States,  the  case  does  not  arise  under  a  law  of  the  United  States, 
unless  a  recovery  of  damages  for  a  disregard  of  such  regula- 
lions  is  expressly  authorized  by  statute.15  Suits  for  malicious 
prosecution  or  false  imprisonment  upon  a  charge  of  the  viola- 
tion of  a  law  of  the  United  States.16  or  where  the  illegality 
depended  upon  a  right  granted  by  a  statute  of  the  United 
States;17  an  action  for  damages  for  preventing  plaintiff  from 
voting  at  a  Congressional  election,18  and  under  ordinary  cir- 
cumstances a  controversy  as  to  the  right  to. the  custody  of  an 
Indian  child,19  do  not  arise  under  the  laws  of  the  United  State>. 
The  Federal  question  in  the  case  must  be  substantial,  and  not 
merely  colorable.20  "When  a  proposition  has  once  been  decided 
by  the  Supreme  Court  of  the  United  States,  it  can  no  longer 
be  said  that  in  it  there  still  remains  a  Federal  question.'1 21     The 


1.  See,  however,  Attorney  General 
v.  American  Express  Co.  ( Michi- 
gan ),  77  X.  W.  :5]  7. 

14  Ames  v.  Kansas,  111  U.  S.  449, 
28   L.  ed.   482. 

15  Heck  v.  Johnson,  169  Fed.  154, 
103. 

16  Ma-ka-ta-wali-qua-twa  v.  Rebok, 
111   Fed.  12. 

17  Peters   v.   Malin,   111    Fed.   244. 

18  Knight  v.  Shelton,  134  Fed.  423. 

19  Iii  re  Celestine.  114  Fed.  551. 
20Sitarin  v.  New  York.  115  U.  S. 

248,  257,  29  L.  ed.  38S.  390;  South- 
ern Pac.  R.  Co.  v.  California.  118 
U.  S.  109.  112.  30  L.  ed.  103,  104; 
New  Orleans  v.  Benjamin.  153  U.  S. 
411.  38  L.  ed.  764;  St.  Joseph  &  G. 
I.  R.  Co.  v.  Steele.  167  U.  S.  659, 
42  L.  ed.  315;  McCain  v.  Des 
koines,  174  U.  S.  168,  43  L.  ed.  936; 
\V.  U.  Tel.  Co.  v.  Ann  Arhor  R.  Co., 
178  V.  S.  239.  44  L.  edr  1052 :  Swaf- 
ford  v.  Templet  on.  185  V.  S.  487, 
494.  46  L.  ed.  1005,  1008:  Cummings 
v.  Chicago,  188  U.  S.  410.  47  L.  ed. 


52.3;  Rankers'  Mut.  Casualty  Co.  v. 
Minneapolis.  St.  P.  &  S.  S.  M.  Ry. 
Co.,  192  U.  S.  371,  48  L.  ed.  484; 
Underground  R.  R.  Co.  v.  New  York, 
193  U.  S.  416,  48  L.  ed.  733:  Barney 
v.  New  York.  193  U.  S.  430,  48  L. 
ed.  737:  Newburyport  Water  Co.  v. 
Xewlmrvport,  193  U.  S.  561.  48  L. 
ed.  79.1 ;  Sloan  v.  I".  S..  193  U.  S. 
614.  4S  L.  ed.  814:  Fan  ell  v. 
O'Brien,  199  U.  S.  89.  50  L.  ed.  101  -. 
Harris  v.  Rosenberger.  C.  C.  A..  14.") 
Fed.  149:  Blue  Bird  Min.  Co.  v. 
Largey,  4'.i  Fed.  289,  291  ;  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  v.  Davis.  132 
Fed.  629;  Montana  Catholic  Mis- 
sions v.  Missoula  County.  200  \J.  S. 
il8.  50    1,.  ed.   398- 

21  Brewer.  J.,  in  Kansas  v.  Brad 
ley.  26  Fed.  289.  290.  See  Western 
Union  Tel.  Go.  v.  Ann  Arbor  R.  Co.. 
178  U.  S.  239.  44  L.  ed.  1052,  re> 
ve-rsed  90  Fed.  379,  33  C.  C.  A.  113; 
Kentucky  v.  Louisville  Bridge  Co.. 
42  Fed.  241  ;  People  of  Slate  of  Cali- 
fornia  v.  Brown's  Valley   Irr.   Di>(.. 


60 


OEIGixal  jrnisnicTiox. 


[§  24 


right  of  removal  of  a  suit  involving  a  Federal  question,  is  not 
affected  by  the  fact  that  the  Supreme  Court  has  laid 
down,  in  previous  decisions  on  different  facts,  general 
principles,-  which  will  probably  control  the  decision.22 
It  was  said:  that  the  decisions  of  the  Supreme  Court,  in  cases 
from  the  Circuit  Courts,  and  those  on  writ  of  error  to  a  State 
court,  were  equally  instructive  in  determining  when  there  is  a 
Federal  question,  such  as  to  support  the  jurisdiction  of  the  Cir- 
cuit Court,  originally  or  upon  removal.23  Where  the  complaint 
shows  upon  its  face,  that  the  relief  sought  would  be  inconsistent 
with  a  provision  of  the  Federal  Constitution,  such  as  the  grant 
of  power  to  regulate  commerce  between  the  States,  or  the  Four- 
teenth Amendment ;  that  only  demonstrates  that  the  suit  cannot 
be  maintained  at  all,  not  that  the  cause  of  action  arises  under 
the  Constitution  or  laws  of  the  United  States.24  Where  the 
plaintiff  sought  to  recover  damages  because  the  defendant,  as 
Chief  Justice  of  the  Supreme  Court  of  the  State,  had  remitted 
a  case  to  an  inferior  court ;  it  was  held,  that  there  was  nothing 
to  show  a  ground  of  Federal  jurisdiction.25 

A  suit  does  not  arise  under  the  Constitution  or 
laws  of  the  United  States,  unless  the  Federal  ques- 
tion appears  clearly,  not  merely  by  inference,26  upon 
the  face  of  the  plaintiff's  initial  pleading  in  his  state- 
ment    of     his     own     case,27     and     in     a     necessary     allega- 


119  Fed.  535:  Arkansas  v.  Choctaw 
&  M.  R.  Co.,  134  Fed.  ]0G:  Myrtle 
v.  Nevada,  C.  &  0.  Ry.  Co.,  137  Fed. 
193;  Harris  v.  Rosenberger,  C.  C. 
A..  145  Fed.  449. 

22  MalloB  v.  Hyde,  76  Fed.  388. 

28  Nashville,  C.  &  St.  L.  Ry.  v. 
Taylor,  86  Fed.  168. 

24  Arkansas  v.  Kansas  &  T.  Coal 
Co.,  183  U.  S.  185;  South  Carolina 
v.  Virginia-Carolina  Chemical  Co., 
117  Fed.  727,  731.  See  Washington 
v.  Island  Lime  Co.,  117  Fed.  777. 

25  Kinney  v.  Mitchell.  13S  Fed. 
270. 

26]Tanford  v.  Davies,  163  U.  S. 
273.  41  L.  ed.  157;  W.  U.  Tel.  Co. 
v.  Ann  Arbor  R.  Co.,  178  U.  S.  239, 
44  L.  ed.  1052. 


27  Chappell  v.  Watcrworth.  155  V. 
S.  102,  39  L.  ed.  85:  Tennessee  v. 
Union  and  Planters'  Bank,  152  U. 
S.  454,  38  L.  ed.  511;  Postal  Tel. 
Cable  Co.  v.  Alabama,  155  U.  S.  482, 
39  L.  ed.  231;  East  Lake  Land  Co. 
v.  Brown,  155  U.  S.  488,  39  L.  ed. 
233;  Oregon  Short  Line  &  U.  X.  R. 
Co.  v.  Skottowe,  162  U.  S.  -190,  40 
L.  ed.  104S:  Walker  v.  Collins,  167 
U.  S.  57,  42  L.  ed.  76;  Galveston,  H. 
&  S.  A.  Ry.  Co.  v.  State  of  Texas, 
170  U.  S.  226,  42  L.  ed.  1017;  Third 
St.  &  S.  Ry.  Co.  v.  Lewis,  173  V.  S. 
457,  43  L.  ed.  766;  Minnesota  v. 
Northern  Securities  Co.,  194  U.  S. 
48,  4S  L.  ed.  870:  reversing  123  Fed. 
692:  Iowa  v.  Chicago,  M.  &  St.  P. 
R.    Co.,    33    Fed.    391;    appeal    «li- 


§  24]   SUITS  UNDER  FEDERAL  CONSTITUTION  OR  LAWS. 


61 


tion  in  such  pleading.28  The  appearance  of  a  Federal  question 
in  the  defendant's  answer,29  or  petition  for  removal,  30  or  even? 
it  has  been  held,  in  his  demurrer,31  or  in  the  plaintiff's  plead- 
ing in  reply  or  rebuttal,32  or  in  a  bill  of  repleader  by  the  plain- 
tiff,33 is  insufficient.  A  Federal  question,  first  raised  by  the 
defendant,  must  be  tried  by  the  State  court,  subject  to  review 
by  the  Supreme  Court  of  the  United  States  upon  writ  oJ 
error.34  To  give  a  court  of  the  United  States  jurisdiction  of  a 
cause,  on  the  ground  that  it  presents  a  Federal  question,  such 
question  must  appear  from  plaintiff's  statement  of  his  own 
cause  of  action,  and  his  right  to  the  relief  sought  must  depend 
directly  upon  the  construction  of  some  provision  of  the  Con- 
stitution or  laws  of  the  United  States.35    Where  the  controversy 


missed,  Chicago.  M.  &  St.  P.  Ry. 
Co.  v.  Iowa,  145  U.  S.  632,  36  L. 
ed.  857 ;  Haggin  v.  Lewis.  66  Fed. 
199;  Caples  v.  Texas  &  P.  K.  Co., 
67  Fed.  9:  Holland  v.  Texas  &  P.  R. 
Co.,  67  Fed.  9:  Cruz  v.  Texas  &  P. 
R.  Co.,  67  Fed.  9;  Wichita  Nat. 
Bank  v.  Smith.  72  Fed.  568,  19  C. 
('.  A.  42,  36  U.  S.  App.  530;  Florida 
v.  Charlotte  Harbor  Phosphate  Co., 
74  Fed.  578,  20  C.  C.  A.  538,  41  U. 
S.  App.  405;  Dewey  Min.  Co.  v. 
Miller,  96  Fed.  1;  South  Carolina 
v.  Virginia-Carolina  Chemical  Co., 
117  Fed.  727;  Wichita  v.  Missouri 
&  K.  Telephone  Co..  122  Fed.  100; 
Darton  v.  Sperry  (Connecticut),  41 
Atl.  1052,  71  Conn.  339;  Mills  v. 
Central  R.  Co.  of  New  Jersey  (Xew 
Jersey),  7  N.  J.  Law  J.  230:  State 
v.  Port  Royal  &  A.  Ry.  Co.  (South 
Carolina),  45  S.  C.  413,  23  S.  E. 
363;  Texas  &  P.  Ry.  Co.  v.  Caples 
(Texas),  36  S.  W.  516. 

28  Wise  v.  Nixon,  78  Fed.  203; 
California  Oil  &  Gas  Co.  of  Arizona 
v.  Miller,  96  Fed.  12;  Henuy  v.  La 
Compagnie  Generale  Trahaatlan- 
tique,  etc.,  96  Fed.  497;  Filhiol  v. 
Torney,  119  Fed.  974;  McLane  v. 
Leicht  (Iowa),  69  la.  401,  29  N. 
W.  327. 


29  Guarantee  Co.  of  North  Dakota 
v.  Hanway,  104  Fed.  369,  44  C.  C. 
A.  312;  Lincoln  v.  Lincoln  St.  Ry. 
Co.,  77  Fed.  658;  Broadway  Ins.  Co. 
v.  Chicago  G.  W.  Ry.  Co.,  101  Fed. 
507;  Ralya  Market  Co.  v.  Armour 
&  Co.,  102  Fed.  530;  Mayo  v.  Dock- 
ery,  108  Fed.  897;  Mitchell  En- 
gineering &  Machinery  Co.  v.  Worth- 
ington,  140  Fed.  947;  Cella  v. 
Brown,  144  Fed.  742. 

30  Ibid. 

31  Indiana  v.  Alleghany  Oil  Co.r 
85  Fed.  870;  Shields  v.  Boardmanr 
98  Fed.  455. 

32  Houston  &  T.  C.  R.  Co.  v.  State 
(Texas),  41  S.  W.  157:  Houston  & 
T.  C.  R.  Co.  v.  State  of  Texas.  177 
U.  S.  66,  44  L.  ed.  673.  But  see, 
Smith  v.  Greenhow,  109  U.  S.  669, 
27  L.  ed.  1080. 

33  Cella  v.  Brown,  144  Fed.  742. 

34  Tennessee  v.  Union  &  Planters' 
Bank,  152  U.  S.  454,  462,  38  L.  ed. 
511.  514. 

35  Montana  Ore-Purchasing  Co.  v.. 
Boston  &  M.  Consol.  Copper  &  Silver 
Min.  Co.,  C.  C.  A..  93  Fed.  274.  35. 
C.  C.  A.  1:  Shulthis  v.  McDongal.. 
225  U.  S.  561,  56  L.  ed.  1205:  Bare 
v.  Birkenneld,  C.  C.  A.,  isl  Fed. 
825;   Bovd  v.  Great  Western  Coal  & 


G2 


ORIGINAL    JURISDICTION. 


[§  24 


might  have  arisen  both  under  the  laws  in  the  United  States 
and  under  the  common  law  or  a  State  statute,  the  complaint 
m nsr  clearly  show  that  it  arises  under  the  former.36  Jurisdic- 
tion cannot  be  sustained  upon  allegations  that  defendant  does 
or  may  assert  some  right  under  such  Constitution  or  laws  as 
:i  defense.37  An  averment  by  the  plaintiff,  that  the  defendant 
will  set  up  a  defense  based  upon  a  Federal  statute  or  the  Con- 
stitution of  the  United  States,88  or  based  upon  a  State  statute 
repugnant  to  the  Federal  (  Ymstitution,39  will  not  bring  the  case 


Coke  Co..  180  Fed.  115:  The  Dalles 
&  Rockland  Ferry  Co.  v.  llendryx, 
IS!)  Fed.  2GG. 

36Shulthia  v.  McDougal,  225  U. 
S.  561;  Beck  v.  Johnson.  169  Fed. 
154.  But  see  Nelson  v.  Southern 
lly.  Co..  172  Fed.  478;  Bottoms  v, 
St.  Louis  &  S.  F.  R.  Co..  17!)  Fed. 
.'.IS.  It  was  contended  by  the  de- 
fendant that  these  two  cases  arose 
under  the  Employers"  Liability  Act 
(35  St.  at  L.  05),  but  the  Federal 
court  refused  to  take  jurisdiction 
because  there  was  no  reference  to 
the  statute  in  the  plaintiff's  plead- 
ings. Miller  v.  Illinois  Cent.  R.  Co.. 
108  Fed.  982,  where,  although  the 
pleading  set  forth  this  Federal  stat- 
ute, it  did  not  show  that  the  con- 
struction thereof  was  involved. 
Contra  Smith  v.  Detroit  &  T.  S.  L. 
R.  Co..  175  Fed.  506.  See  Missouri 
K.  &  T.  Ry.  Co.  v.  W'ulf,  220  C.  S. 
570.  infra.  §  211.  In  Clark  v.  South- 
ern Pac.  Co..  175  Fed.  122.  it  was 
held  that  the  petition  sufficiently 
showed  that  the  case  arose  under 
that   Act  of  Congress. 

37Shulthis  v.  McDougal,  225  C. 
S.  561,  50  L,  ed.  1205:  Montana  Ore- 
Purcbasing  Co.  v.  Boston  &  M. 
Gonsol.  Copper  &  Silver  Min.  Co., 
O.  C.  A..  03  Fed.  274,  35  G.  C.  A.  1: 
Mare  v.  Birkenfield,  C.  C.  A..  181 
led.  825;  Boyd  v.  Great  Western 
Coal  &  Coke  Co.,  189  Fed.  115;  The 


Dalles  &  Rockland  Ferry  Co.  v. 
Hendryx,  ISO  Fed.  200:  Kansas  City 
Southern  Ry.  Co.  v.  Quiiiley.  181 
Fed.  100.  a  bill  quia  timet. 

38  Florida  qent.  &  P.  Co.  v.  Bell. 
170  U.  S.  :!21.  44  L.  ed.  480;  City 
Ry.  Co.  v.  Citizens'  St.  R.  Co.,  100 
F.  S.  557.  4  1  L.  ed.  1114:  Boston  & 
Consoj.  Copper  &  Silver  Min.  Co. 
Montana  Ore-Purchasing  Co.,  188 
S.  032.  47  L.  ed.  020;  Id..  188 
S.  045,  47    F.  ed.  034:   affirming, 


M 
v. 
U 

u 

C.    C.    A 
Tornev, 


!):;    Fed.   274:    Filhiol    v. 


104 


1014;    affirming   110 


F.  S.  350,  48  L.  ed. 
Fed.  !)74:  I  )e 
vine  v.  Los  Angeles,  202  I".  S.  313. 
50  L.  ed.  1040;  Fouisville  &  Nash- 
ville R.  R.  Co.  v.  Mottley.  211  F.  S. 
140.  53  L.  ed.  120;  Kansas  v.  Atchi- 
son. T.  &  S.  F.  Ry.  Co..  77  Fed. 
330:  Montana  0.  P.  Co.  v.  Boston 
&  M.  C.  C.  &  S.  M.  Co.,  C.  C.  A.. 
93  Fed.  274;  Peabody  Gold  Min.  Co. 
v.  Gold  Hill  Min.  Co..  C.  C.  A..  Ill 
Fed.  817.  But  see,  Walla  Walla 
City  v.  Walla  Walla  Water  Co.,  172 
U.  S.  1,  43  L.  ed.  341;  Cox  v.  Gil- 
mer, 88  Fed.  343:  Yazoo  &  M.  V.  R. 
Co.  v.  Adams.  81  Miss.  00.  32  So. 
037. 

39  Devine  v.  Los  Angeles,  202  F. 
S.  313,  50  L.  ed.  1040;  Cox  v.  Gil- 
mer,  88  Fed.  343.  But  see  South 
Carolina  v.  Coosaw  Min.  Co.,  45  Fed. 
S04;  Green  v.  Oemler,  151  Fed.  936. 


£    24]       SUITS   UNDER   EEDEBAL   CONSTITUTION    OR  LAWS. 


63 


within  the  Federal  jurisdiction;  even  though  the  plaintiff  sues 
to  quiet  his  own  title,  which  does  not  depend  upon  a  Federal 
statute.40  Where  a  complaint  in  the  State  court  alleged  that 
complainants  claimed  under  a  designated  State  statute,  not  sel 
Out  in  full  in  the  complaint,  and  Jthat  defendant's  claim  arose 
under  a  previous  statute,  also  designated,  which  was  alleged  to 
he  contrary  to  the  State  Constitution;  the  Federal  court,  upon 
defendant's  petition  for  removal,  on  the  ground  that  the  latter 
statute  was  contrary  to  the  United  States  Constitution  as  im- 
pairing the  obligation  of  their  contract  under  the  former  stat- 
ute, took  judicial  notice  of  the  statutes  in  determining  its  juris- 
diction.41 It  has  been  said:  that  the  rule,  that  a  cause  is  not 
removable,  as  one  arising  under  the  Constitution  or  laws  of- the 
United  States,  unless  such  fact  appears  from  the  plaintiff's 
pleading,  applies  only  to  cases  in  which  the  Federal  question 
is  one  inherent  in  the  controversy  itself,  so  that  if  raised  bv  the 
defendant,  and  determined  against  him  by  the  State  court,  he 
may  remove  it  to  the  Supreme  Court  for  review  by  appeal  or 
writ  of  error  that  such  rule  cannot  be  extended  as  to  -per- 
mit a  plaintiff  to  prevent  the  removal  of  a  suit  against  a  re- 
ceiver of  a  Federal  court  by  omitting  to  state,  in  his  pleadings, 
by  what  court  defendant  was  appointed  receiver;  and  that  such 
an  omission,  when  relied  upon  to  pervent  the  removal  of  the 
cause,  may  fairly  be  considered  as  a  fraud  upon  the  jurisdiction 
of  the  Federal  court,  whether  so  intended  or  not.42  The  court 
will  take  judicial  notice  of  the  fact  that  a  defendant  corpora- 
tion was  incorporated  by  an  act  of  Congress,  although  the 
plaintiff  has  averred  that  it  was  incorporated  under  the  State 
laws;  and  such  a  case  may  be  removed.43    Although  a  complaint 


40  Boston  &  M.  Consol.  Copper  & 
Silver  Min.  Co.  v.  Montana  Ore 
Purchasing  Co.,  188  U.  S.  032,  47 
L.  ed.  626;  affirming,  C.  C.  A.,  93 
Fed.  274;  Devine  v.  Los  Angeles. 
202  U.  S.  313,  50  L.  ed.  1040:  Cali- 
fornia Oil  &  Gas  Co.  of  Arizona  v. 
Miller,  90  Fed.  12. 

41  South  Carolina  v.  Coosaw  Min. 
Co.,  45  Fed.  804. 

42  Winters  v.  Drake,  102  Fed.  545. 
See  Washington  v.  Island  Lime  Co.. 


117  Fed.  777,  778:  where  it  was 
held,  that  the  pleading  did  not  show 
fraud  in  concealing  the  real  contro- 
versy by  an  insufficient  statement  of 
the  facts  constituting  plaintiff's 
cause  of  action.  See  also  infra, 
§    27.  .;< 

43  Texas  &  P.  Ry.  Co.  v.  Cody,  100 
U.  S.  000.  41  L.  ed.  1132;  Texas  & 
P.  Ry.  Co.  v.  Barrett.  100  V.  S.  617, 
41  L.  ed.  1336;  Spokane  Fall-  &  \. 
Ry.  Co.  v.  Ziegler.  107  V.  S.  or>.  42 


64  ORIGINAL    JURISDICTION.  [§    2-i 

by  a  settler  claiming  title  under  the  pre-emption  laws  of  the 
United  Suites  against  a  railroad  company  stated  that  defendant 
claimed  under  the  laws  of  the  Territory  of  Washington  au- 
thorizing  railroad  companies  to  appropriate  land  for  right  of 
way,  it  disclosed  a  cause  of  auction  arising  under  the  laws  of  the 
United  States,  so  as  to  authorize  a  removal  from  a  State  court 
to  the  Federal  court,  the  court  having  judicial  knowledge  that 
the  authority  of  the  Territory  to  legislate  as  to  the  matter  in 
question  was  derived  from  the  act  of  Congress,  granting  to 
railroad  companies  the  right  of  way  through  the  public  lands 
of  the  United  States.44  "Resort  cannot  be  had  to  the  expedient 
of  importing  into  the  record  the  legislation  of  the  State  as 
judicially  known  to  its  courts,  and  holding  the  validity  of  such 
legislation  to  have  been  drawn  in  question,  and  a  decision  neces- 
sarily rendered  thereon,  in  arriving  at  conclusions  upon  the 
matters  actually  presented  and  considered.  A  definite  issue 
as  to  the  validity  of  the  statute  or  the  possession  of  the  right 
must  be  distinctly  deducible  from  the  record. " 45  In  an  action 
for  false  imprisonment,  averments  in  the  declaration  that  de- 
fendants, acting  as  judges  of  an  election,  caused  plaintiff's 
arrest  and  imprisonment  under  color  of  a  State  law  which  is 
repugnant  to  the  Constitution  of  the  United  States,  are  not 
open  to  the  objection  of  anticipating  the  defense  for  the  purpose 
of  showing  that  a  Federal  question  is  involved.46 

Where  the  facts  stated  in  the  plaintiff's  petition  set  forth  a 
cause  of  action  authorized  by  both  an  act  of  Congress  and  a 
State  statute,  although  he  did  not  specifically  refer  to  either, 
it  was  held  that  the  case  might  be  removed.47  It  has  been  held: 
that  an  action  against  an  interstate  common  carrier  by  rail, 
for  damages  caused  by  unjust  discrimination  in  rates  and 
charges  gainst  plaintiff  as  a  shipper  over  its  road,  and  in  afford- 
ing other  shippers  better  facilities,  and  for  unlawfully  demand- 
ing ami  receiving  extortionate  rates  from  plaintiff,  is  an  action 

L.  ed.   79;    Scott   v.   Choctaw,   0.   &  44  Spokane  Falls  &  X.  Ry.  Co.  v. 

G.    It.  Co.,   112  Fed.  ISO.     See,  how-  Ziegler,  ]67  I".  S.  65',  42  L.  ed.  79. 

ever,   Oregon   Short   Line   &    U.    No.  45  Powell    v.    Brunswick    County, 

l!y.  Co.  v.  Skottowe;   162  V.  S.  490,  150  U.  S.  433,  440;  Fuller.  C.  J. 

40  L.  ed.   I04K;  cited  infra,  §  27.  46  Cox  v.  Gilmer.  88  Fed.  343. 

Contra,  Texas  &  P.  Ry,  Co.  x.  High-  47  Hall  v.  Chicago*  R.  I.  &  P.  Ry. 

tower    (Texas),    12    Tex.    Civ.    App.  Co..  149  Fed.  654. 
41,  33   S.   W.   541. 


§    24]       SUITS   UNDER  FEDERAL   CONSTITUTION  OR  LAWS. 


g; 


arising  under  the  Interstate  Commerce  law,  although  not  in 
express  terms  based  on  that  act,  and,  although  an  action  wqnld 
lie  for  the  same  cause  at  common  law;  and  is  removable,  when 
the  petition  for  removal  sets  up  a  defense  under  the  act  of  Con- 
gress.48 An  action  in  a  State  court,  to  recover  for  personal  in 
juries  alleged  to  have  been  received  by  reason  of  the  failure  of 
defendant  railroad  company  properly  to  equip  its  cars  with 
safety  appliances,  is  not  removable  merely  because  of  an  allega- 
tion in  the  complaint  that  defendant  is  engaged  in  interstate 
commerce,  where  it  does  not  appear  that  there  is  any  contro- 
versy as' to  the  construction  or  effect  of  the  Federal  law  relating 
to  railroads  engaged  in  such  commerce,  since  the  questions 
of  fact  whether  defendant  is  engaged  in  interstate  commerce, 
and,  if  so,  whether  it  has  complied  with  the  law,  are  not  Federal 
questions.49 

The  mere  fact  that,  in  the  progress  of  the  trial  of  a  case,  it 
may  become  necessary  to  construe  the  Constitution  or  laws  of 
the  United  States,  does  not  give  the  Federal  courts  jurisdiction 
thereof;  but  the  decision  must  depend  on  such  construction.50 

The  existence  in  the  case,  of  other  questions  than  that  aris- 
ing under  the  Constitution  or  laws  of  the  United  States,  does 
not  impair  the  right  of  removal. 51  It  was  said:  that  the  clause 
of  the  removal  act  of  1888,  authorizing  the  removal  of  civil  suits 
arising  under  the  Constitution  or  laws  of  the  United  States, 
relates  only  to  the  entire  action  and  does  not  permit  the  re- 
moval of  a  part  thereof  when  the  rest  is  not  removable.  52  A 
hill  to  enjoin  the  enforcement  of  a  municipal  ordinance  au- 
thorizing a  street-railroad  company  to  condemn  for  its  use  cer- 
tain parts  of  the  track  of  another  corporation  was  entertained 
by  a  Circuit  Court  of  the  United  States  upon  the  ground,  that 


48  Lowry  v.  Chicago,  B.  &  Q.  Ry. 
Co.,  4(i  Fed.  83. 

» Myrtle  v.  Nevada  C.  &  0.  Ry. 
Co.,  137  Fed.  103. 

50  Wise  v.  Nixon,  78  Fed.  203. 

51  Connor  v.  Scott,  Fed.  Cas.  No. 
3.119  (4  Dill.  242);  Fisk  v.  Union 
Pac.  R.  Co..  Fed.  Cas.  No.  4,827  (0 
Blatchf.  302);  s.  c,  Fed.  Cas.  No. 
4,828  (8  Blatchf.  243);  Illinois  v. 
Illinois  Cent.  R.  Co.,   16   Fed.   881; 

Fed.  Prac.  Vol.  I.— 5. 


People  v.  Sanitary  Dist.  of  Chicago, 
98  Fed.  150;  Manigault  v.  S.  M. 
Ward  &  Co.,  123  Fed.  707;  Mastin 
v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  123 
Fed.  827;  New  Orleans  M.  &  T.  R. 
Co.  v.  State  of  Mississippi  (Ky.),  2 
Ky.  Law  Rep.  137. 

52  Texas  v.  Day  Land  &  Cattle 
Co.,  49  Fed.  593;  Chapter  on  Re- 
moval of  causes. 


GC  FEDERAL    PRACTICE.  [§    24 

the  violation  of  a  previous  grant  to  the  latter  company,  which 
complainant  alleged,  impaired  the  obligation  of  a  contract.  It 
was  held :  that,  this  did  not  give  that  court  jurisdiction  to  decide 
a  question  arising  on  a  supplemental  bill  as  to  the  right  of 
condemnation  by  the  former  company  under  its  charter,  pur- 
suant to  which  the  city  determined,  pending  the  suit,  that  the 
streets  were  not  wide  enough  for  two  companies  to  lay  tracks 
side  by  side;  because  the  matter  involved  was  beyond  the  scope 
of  the  controversy,  which  gave  the  court  jurisdiction  of  the 
case  originally.53 

It  has  been  said:  that  the  nature  of  the  action,  and  not  the 
character  of  the  defense,  constitutes  the  test  of  the  deter- 
mination whether  it  arises  under  the  laws  of  the  United  States ; 
and  that  if  the  case  made  by  the  complaint  arises  under  an  act 
(d'  Congress,  the  right  of  removal  by  the  defendant  is  not  lost 
by  insufficient  denials  in  the  answer,54  or  by  the  interposition  of 
a  good  defense.55  It  has  been  held  :  that  a  Federal  court  loses 
jurisdiction  of  a  suit  originally  brought  there,  and  that  the  same 
will  be  dismissed,  upon  the  defendant's  filing  a  disclaimer  of 
any  interest  in  the  matter  concerning  which  the  plaintiff  claims 
title  under  the  laws  of  the  United  States,  and  denying  that  it 
has  made  any  claim  to  the  same.56 

In  a  suit  in  a  Federal  court,  raising  the  question  whether 
the  State  was  attempting  to  impair  the  obligation  of  a  contract, 
a  decision  that  this  question  was  res  adjudicata  as  against  the 
State  does  not  oust  the  Federal  jurisdiction  on  the  theory  that 
it  makes  the  case  turn  on  a  question  not  Federal.57  Where  the 
bill  brings  before  the  court  for  determination  a  Federal 
question  not  merely  colorable,  but  raised  in  good  fairh 
not.  merely  for  the  purpose  of  giving  jurisdiction  to  the 
District  Court  of  the   United  States,  the  court  can  take  juris- 

53  Mercantile  Trust  &  Deposit  Co.  S.  522,  .">24.  30  L.  ed.  1021;  Excel- 
v.  Collins  Park  &  Belt  R.  Co..  107  sior  Wooden  Pipe  Co.  v.  Pacific 
Fed.  762.  See  August  Buseh  &  Co.  Bridge  Co.,  IS.",  U.  S.  282,  287.  4G 
v.  Webb,  122  Fed.  655,  662.  L.  ed.  910,  0]:];  Boston  &  M.  Consol. 

54  Miller  v.  Tobin,  18  Fed.  009,  9  C.  &  S.  Min.  Co.  v.  Montana  Ore  P. 
Sawyer,  401.  Co..   188  U.   S.   632,  47   L.  ed.  626: 

55  Guarantee  Co.  of  Xorth  Dakota  Crystal  Springs  Land  &  Water  Co. 
v.  Hanway,   104   Fed.  309.  44   C.  C.  v.  Los  Angeles,  82  Fed.  114. 

A.   312.  57  Bank  of  Kentucky  v.  Stone,  88 

56  Robinson   v.    Anderson,    121    U.       Fed.  383. 


24J       SUITS   UNDER   FEDERAL   CONSTITUTION   OR   LAWS. 


G7 


diction  and  does  not.  lose  the  same  by  deciding  the  case  upon 
other  points  and  omitting  to  decide  the  Federal  questions  or 
deciding  them  adversely  to  the  party  claiming  their  benefit.58 
It  was  formerly  held  that,  when  a  case  involving  several  ques- 
tions ha3  been  removed  because  one  of  them  arises  under  the 
Constitution  or  laws  of  the  United  States,  after  a  decision  of 
the  court  disposing  of  the  Federal  question  there  should  be  a 
remand:59  but  that  a  Federal  question,  which  is  not  frivolous. 

l    60 

cannot  be  decided  upon  a  motion  to  remand. 


58  Riler  v.  Louisville   &  Nashville 
R.  R.  Co..  213  U.  S.  175.  53  L.  ed. 
753,  29   Sup.   Ct.  Rep.   451;    Omaha 
H.  Ry.  Co.  v.  Cahle  Tr.  Co.,  32  Fed. 
727:   per   Brewer,  J.;   s.  c,  33  Fed. 
6S0;  Nashville,  C.  &  St.  L.  Ry.  Co. 
v.    Taylor,    8G    Fed.    168,    178,    188; 
Louisville  Tr.  Co.  v.  Stone,  C.  C.  A., 
107    Fed.   305,    309,    310:    Bernstein 
v.   Danwitz,  190   Fed.    G04:    Central 
R.  Co.  of  New  Jersey  v.  Jersey  City, 
199   Fed.   237,   24G;    Michigan    Rail- 
road Tax  Cases,  138  Fed.  223;  Ore- 
gon  R.  &   Navigation   Co.  v.   Camp- 
bell.  173  Fed.  957:   Larabee  v.  Dol- 
ley,  175  Fed.  305:   Risley  v.  City  of 
Utica,    179   Fed.   875.     But   see   Un- 
derground Railroad  v.  City  of  New 
York.  193  U.  S.  416,  48  L.  ed.  733, 
24  Sup.  Ct.  494,  affirming,  s.  c,  110 
Fed.  952  :   Mercantile  Tr.  &  Deposit 
Co.  v.   Collins  Park  &  Belt   R.  Co., 
107  Fed.  762,  765:  People's  Gaslight 
&   Coke  Co.  v.  City  of  Chicago.   114 
Fed.    384,    holding    that    where    the 
hill  did  not  show  that  an  ordinance 
fixing  the  rate  for  the  price  of  gas, 
impaired    the    obligation    of    a    con- 
tract, or  took  property  without  due 
process  of  law,  the  court  could  not 
consider    the    question    whether    the 
city  had  the  power,  under  the  laws 
of  the  State,  to  enact  such  an  ordi- 
nance.     Minnesota   v.   Northern    Se- 
curities Co.,  194  U.  S.  48.  48  L.  ed. 


870:  Cf.  Penn.  Mut.  L.  I.  Co.  v.  Aus- 
tin.   108    U.   S.    085.    695.   42    L.   ed. 
626,    030:    and    infra.      But    it    has 
been    held,    in    New    York    Mackin- 
tosh   Co.    v.    Flam,    198    Fed.    571, 
that    where    the    plaintiff    failed    to 
establish    a    cause    of    action    under 
the      Federal      statute      concerning 
trademarks,  he  could  not  obtain  an 
injunction  because  of  unfair  compe- 
tition.    Similar   rulings   were   made 
in  copyright  cases:  Larro\ve-I oisette 
v.  O'Louglilin.  88  Fed.  896:  Scribner 
v.    Straus,    C.    C.    A.,    147    Fed.    28. 
Similar   rulings   were  made    in   pat- 
ent cases:  Mecky  v.  Grabowski,  177 
Fed.    591 ;    National    Casket    Co.    v. 
New   York  &  Brooklyn   Casket  Co., 
185    Fed.    533.      Elgin    Nat.    Watch 
Co.  v.  Illinois  Watch  Co..  179  U.  S. 
605.  21   Sup.  Ct.  270,  45  L.  ed.  305: 
Leschen  Rope  Co.  v.  Broderick,  201 
U.  S.  100.  20  Sup.  Ct.  425.  50  L.  ed. 
710:    Burt    v.    Smith,   C.    C.    A.,    71 
Fed.  101,  17  C.  C.  A.  573;  Hutchin- 
son, Pierce  &  Co.  v.  Loewy.  C.  C.  A.. 
163  Fed.  42.  90  C.  C.  A.  1.     Contra, 
Dicta   of   Ray.   J.    in   Onondaga    In- 
dian  Wigwam  Co.  v.  Ka-Xoo-Xo.  I. 
Mfg.  Co.,  182  Fed.  832. 

59  Hamblin  v.  Chicago,  B.  &  Q.  R. 
Co.,  43   Fed.  401. 

60  Lowry   v.   Chicago,  B.   &   Q.   R. 
Co..  46  Fed.  88. 


08 


ORIGINAL    JURISDICTION. 


[§  25 


§  25.  Suits  arising  under  the  Constitution  of  the  United 
States.  A  suit  arises  under  the  Constitution  of  the  United 
States  when  the  plaintiff's  cause  of  action  depends  upon  the 
violation  of  a  right  under  the  same  by  an  individual  who  does 
not  act  under  color  of  any  statutory  authority;1  or  where  the 
cause  of  action  depends  upon  the  unconstitutionality  of  an 
act  of  Congress;2  or  the  repugnancy  of  a  State  statute  to  the 
Federal  Constitution ; 3  or,  it  has  been  held,  where  it  depends 
upon  a  statute,  which  the  defendant  contends  in  good  faith  to 
be  in  violation  of  the  same,  and  there  is  ground  for  a  reason- 
able doubt  as  to  the  soundness  of  the  contention,4  or  the  com- 
plaint shows  that  the  plaintiff's  claim  would  be  defeated  by  a 
construction  of  the  Federal  Constitution,  as  to  which  there 
is  room  for  a  reasonable  doubt.5  The  pleadings  need  not  state 
what  particular  clause  of  the  Constitution  is  in  question.6  It 
has  been  said:  that  it  is  not  essential  to  the  jurisdiction  of  a 
Federal  Court  over  a  suit  based  on  an  alleged  impairment  of  a 
contract  by  a  State,  that  there  should  be  a  valid  contract,  or 
that  the  impairment  complained  of  should  in  fact  be  effected; 
but  it  is  sufficient,  for  jurisdictional  purposes,  if  the  plaintiff 
claims  the  existence  of  such  contract  and  its  impairment  in 
good  faith.7    Where  a  bill  is  filed  to  enjoin  the  enforcement  of 


§  25.  1  An  action  to  recover 
damages  for  preventing  plaintiff 
from  exercising  the  right  to  vote 
for  a  member  of  Congress  is  one 
arising  under  the  Constitution  of 
the  United  States.  Wiley  v.  Sink- 
ler,  ]79  U.  S.  58,  45  L.  ed.  84; 
Knight  v.  Shelton,  134  Fed.  423. 

2Patton  v.  Brady,  184  U.  S.  008, 
4i!   L.  ed.   713. 

3  (  ovington  &  L.  Turnpike  Road 
Co.  v.  Sandford,  164  U.  S.  578,  41 
L.  ed.  560;  Green  v.  Oemler,  151 
Fed.   036. 

4  Railroad  Co.  v.  Mississippi,  102 
U.  S.  135,  141,  26  L.  ed.  96,  98; 
Ames  v.  Kansas,  111  U.  S.  449,  28 
L.  ed.  482;  Southern  Pac.  R.  R.  Co. 
v.  California.  118  U.  S.  109,  30  L. 
ed.  103:  Kansas  v.  Walruff,  26  Fed. 


178;  Kessinger  v.  Hinkhouse,  27 
Fed.  883;  Mahin  v.  Pfeiffer,  27  Fed. 
892:  Minnesota  v.  Duluth  &  I.  R. 
R.  Co.,  87  Fed.  497.  Contra,  Ken- 
tucky v.  Chicago,  I.  &  L.  Ry.  Co., 
123  Fed.  457.  To  the  same  effect 
are:  Lemen  v.  Wagner  (Iowa),  68 
Iowa,  660,  27  N.  W.  814;  Judge  v. 
Arlen  (Iowa),  71  Iowa.  186,  32  X. 
W.  326;  Dickinson  v.  Herb  Brewing 
Co.  (Iowa),  73  Iowa.  705,  36  X.  W. 
651;  Shear  v.  Bolinger  (Iowa),  74 
Iowa.  757,  37  X.  W.  104. 

5  Minnesota  v.  Duluth  &  I.  R.  R. 
Co..  87  Fed.  497. 

6  Crystal    Springs   Land   &   Water 
Co.  v.  Los  Angeles,  76  Fed.  14S. 

7  Pacific   Electric   Co.   v.   Los    An- 
geles, 118  Fed.  746.     But  see  Ri>l" 
v.  City  of  Utica,  179  Fed.  875 


24] 


SUITS    U^BER    CONSTITUTION. 


69 


a  municipal  ordinance,8  or  resolution  of  a  city  council,  which 
has  the  effect  of  an  ordinance,9  or  to  prevent  the  passage  of 
one,10  which  will  violate  an  existing  contract  with  the  com- 
plainant; the  case  arises  under  the  Constitution  of  the  United 
States;  provided  that  the  ordinance  is  otherwise  within  the 
powers  of  the  municipality.  A  municipal  ordinance,  not  passed 
in  accordance  with  legislative  authority,  is  not  a  law  of  the 
State;  and  a  suit  to  enjoin  its  enforcement  does  not  arise  under 
the  Constitution  of  the  United  States.11  Where  the  complaint 
averred  that  the  enforcement  of  the  ordinance  would  deprive 
the  complainant  of  its  property  without  due  process  of  law  and 
the  State  constitution  contained  a  prohibition  of  such  depriva- 
tion, it  was  held  that  the  remedy  must  be  first  sought  in  the 
State  courts.12    It  has  been  said :  that  under  the  settled  doctrine 


8  Walla  Walla  City  v.  Walla 
Walla  Water  Co.,  172  U.  S.  1,  43 
L.  ed.  341:  affirming  60  Fed.  957 ;. 
Mercantile  Tr.  &  D.  Co.  v.  Colum- 
bus, 203  U.  S.  311,  51  L.  ed-  198; 
Indianapolis  Gas  Co.  v.  Indianapo- 
lis, 82  Fed.  245 ;  Consolidated  Water 
Co.  v.  San  Diego,  84  Fed.  369; 
Michigan  Tel.  Co.  v.  Charlotte,  93 
Fed.  11 ;  Consolidated  Water  Co.  v. 
San  Diego,  93  Fed.  849.  35  C.  C.  A. 
631 ;  Iron  Mountain  R.  Co.  of  Mem- 
phis v.  Memphis,  C.  C.  A.,  96  Fed. 
113:  Kimball  v.  City  of  Cedar  Ra- 
pids, 99  Fed.  130:  Mercantile  Trust 
&  Deposit  Co.  of  Baltimore  v.  Col- 
lins Park  &  B.  R.  Co..  99  Fed.  812; 
Anoka  Water  Works,  Electric  Light 
&„  Power  Co.  v.  City  of  Anoka,  109 
Fed.  580;  American  Water  Works 
&  Guarantee  Co.  v.  Home  Water 
Co.,  115  Fed.  171:  Riverside  &  A. 
Ry.  Co.  v.  Riverside.  118  Fed  736; 
Des  Moines  City  Ry.  Co.  v.  Des 
Moines,  151  Fed.  854.  But  sec  Bien- 
ville Water-Supply  Co.  v.  Mobile, 
175  U.  S.  109,  44  L.  ed.  92;  affirm- 
ing 95  Fed.  530. 

9  Des  Moines  City  Ry.  Co.  v.  Des 
Moines,  151  Fed.  854. 


10  Vicksburg  Waterworks  Co.  v. 
Vicksburg,  185  U.  S.  65,  46  L.  ed. 
808;  s.  c,  as  Vicksburg  v.  Vicks- 
burg Water  Works  Co.,  202  U.  S. 
453,  50  L.  ed.  1102;  Farmers'  Loan 
&  Tr.  Co.  v.  Meridian,  139  Fed.  673. 
But  see  infra,  §  79  and  note  25, 
infra. 

11  Mayor,  etc.,  of  Savannah  v. 
Hoist,  C.  C.  A.,  132  Fed.  901;  re- 
versing 131  Fed.  931 ;  Louisville  v. 
Cumberland  Tel.  &  T.  Co.,  C.  C.  A., 
155  Fed.  725,  12  Ann.  Cas.  500; 
Seattle  El.  Co.  v.  Seattle,  R.  &  S. 
Ry.  Co.,  C.  C.  A.,  185  Fed.  365;  City 
and  County  of  San  Francisco  v. 
United  Railroads  of  San  Francisco, 
C.  C.  A..   19(1   Fed.  507. 

12  Seattle  El.  Co.  v.  Seattle.  R.  & 
S.  Ry.  Co.,  C.  C.  A.,  185  Fed.  365. 
372.  See,  also,  Hamilton  Ga>  Light 
Co.  v.  Hamilton  City,  146  U.  S.  258, 
265,  13  Sup.  Ct.  Rep.  90.  36  L.  ed. 
963:  Barney  v.  New  York.  193  U. 
S.  430.  24  Sup.  Ct.  502,  48  L.  ed. 
737.  Contra.  San  Francisco  Gas  & 
El.  Co.  v.  City  and  County  of  San 
Francisco,  189  Fed.  943. 


70  FEDERAL    PRACTICE.  [§    25 

that  the  courts  can  only  deal  with  the  question  of  the  constitu- 
tionality of  a  legislative  act  after  it  has  been  passed,  and  are 
without  jurisdiction  to  interfere  with  proposed  or  pending  leg- 
islation, either  State  or  municipal,  the  action  of  a  city  council 
in  adopting  the  report  of  a  committee  finding  that  the  franchise 
of  a  street  railway  company  will  expire  at  a  certain  time,  con- 
trary to  the  contention  of  the  company,  and  recommending 
that  the  council  take  measures  to  dispossess  the  company  at  the 
expiration  of  such  time  unless  there  is  a  previous  renewal,  does 
not  give  a  Federal  court  jurisdiction  of  a  suit  to  determine  the 
controversy  between  the  company  and  the  city  in  respect  to  the 
terms  of  the  grant,  on  the  ground  that  it  presents  a  constitu- 
tional question  as  to  the  impairment  of  the  contract  rights  of 
the  company.13  Where,  in  addition  to  these  facts,  it  appeared 
that  the  receivers  of  the  corporation  had  received  a  notice  from 
the  superintendent  of  streets,  that  all  permits  issued  to  the 
company  to  work  and  make  repairs  upon  the  streets  of  the 
city  were  to  be  revoked  at  a  specified  time,  it  was  held,  that  the 
receivers  had  a  cause  of  action  arising  under  the  Constitution 
of  the  United  States.14  The  mere  refusal  of  a  municipal  cor- 
poration to  perform  a  contract,  even  though  that  refusal  is 
expressed  in  an  ordinance  containing  a  direction  that  the  other 
party  to  the  contract  perform  some  act  which  the 'contract  does 
not  require  but  imposing  no  penalty  for  disobedience,15  does 
not  present  a  case  arising  under  the  Constitution  of  the  United 
States.16  In  an  action  to  vacate  the  charter  of  a  railroad  com- 
pany because  a  majority  interest  therein  had  been  purchased 
by  a  competitor,  the  bill  alleged  that  such  purchase  was  ultra 
vires  because  the  Georgia  Constitution  forbade  the  legislature 
to  grant  such  powers  to  any  corporation  where  its  effect  might 
be  to  lessen  or  destroy  competition.  The  petition  for  removal 
contended  that  this  impaired  the  obligation  of  the  contract  em- 
bodied in  the  company's  charter,  which  was  granted  before  this 
provision  of  the   Constitution   took  effect.      It   was  held,   that 

13  Elkins  v.  Chicago.  119  Fed.  057.  Dawson  v.  Columbia  Tr.  Co..  197  U. 

H  Blair  v.  Chicago,  201  U.  S.  400,  S.  178,  49  L.  ed.  713;  Shawnee  Sew- 

405,  50  L.  ed.  801.  erage    &    Drainage    Co.    t.    Stearns, 

15  St.    Paul    Gas   Light   Co.   v.   St.  220   U.   S.   462,  55  L.  ed.  .141.     See 

Tan].  181  U.  S.  142.  45  L.  ed.  7S8.  Defiance  Water  Co.  v.  City  of  Defi- 
le St.    Paul   Gas   Light   Co.  v.   St.  ance,   191   U.  S.  184^  48  L.  ed.   140. 

Paul.   181    U.  S.   142.  45  L.  ed.  788; 


§    24]  SUITS    UXDKR    CONSTITUTION-.  71 

this  presented  a  Federal  question,  although  the  Supreme  Court 
of  Georgia  had  theretofore  decided  that  the  charter  did  not 
confer  the  right  claimed.17  It  was  held:  that,  in  an  action  by 
stockholders  of  a  corporation,  to  set. aside  a  lease  executed  by 
it  as  inconsistent  with  its  charter,  illegal  and  void,  no  Federal 
question  was  involved  within  the  meaning  of  the  removal  act, 
when  complainant  alleged  that  the  action  of  the  directors  in  mak- 
ing the  lease  without  the  consent  of  the  stockholders  was  not 
due  process  of  law,  and  the  defendants  relied  upon  an  act  of  the 
legislature  not  mentioned  in  the  bill,  which  they  averred  thai 
the  plaintiff  claimed  impaired  the  obligation  of  a  contract.18  In 
an  action  in  the  nature  of  quo  warranto,  brought  in  the  name 
of  the  State  by  her  attorney  general  to  prevent  a  railroad  com- 
pany from  controlling  certain  lands,  defendant  petitioned  for 
removal,  alleging  that  it  acquired  ownership  in  the  land  under 
an  act  of  the  legislature,  and  in  accordance  therewith  exercised 
rights  of  ownership ;  that  subsequently  the  act  granting  the 
land  was  repealed;  and  that  such  repealing  act  was  a  law  im- 
pairing the  obligation  of  contracts,  and  depriving  persons  of 
property  without  due  process  of  law.  It  was  held,  that  the  peti- 
tion showed  a  case  arising  under  the  Constitution  of  the  United 
States,  which  was  not  eliminated  by  the  attorney  general's  dis- 
claimer of  reliance  on  the  repealing  act.19  It  was  held : 
that  where  a  railroad  corporation  set  up  as  a  defense  that  its 
charter  was  a  grant  by  the  State,  giving  to  the  railroad  com- 
pany, without  any  qualification,  the  right  to  prescribe  upon  what 
terms  and  at  what  rates  freight  should  be  transported  on  the 
road,  that  this  grant  was  protected  by  the  Constitution  of  the 
United  States,  and  that  a  subsequent  statute  of  the  State  upon  the 
subject  impaired  the  validity  of  such  grant  in  violation  of  the 
Constitution,  that  such  defense  involved  a  question  arising  un- 
der the  ( Constitution  of  the  United  States,  and  the  case  was  remov- 
able.20 In  a  suit,  in  a  Federal  court  raising  the  question  whether 
the  State  was  attempting  to  impair  the  obligation  of  a  contract. 

17  South    Carolina    v.    Port    Royal  19  Illinois  v.  Illinois  Cent.  R.  Co.. 
&  A.  R.  Co.,  5(5  Fed.  333.                           33  Fed.  721.     Rut  see  §  24,  note  :><;. 

18  Central    R.    Co.   of   New   Jersey       supra. 

v.    Mills,    113   U.    S.   24!),   28    L.   ed.  20  Illinois  v.  Chicago,  B.  &   Q.   R. 

949:    affirming    .Mills   v.    Central    R.       Co..    Ill    Fed.    706.      Rut    see    supra, 
Co.,  20  Fed.  449.  §  24.  notes  26-3.5. 


72 


ORIGINAL    JURISDICTION". 


[§  25 


a  decision  that  this  question  was  res  adjudicate/,  as  against  the 
State  does  not  oust  the  Federal  jurisdiction,  on  the  theory  that 
it  makes   the  case  tarn  on  a  question  not  Federal.21     It  was 
held :  that  jurisdiction  in  the  Circuit  Courts  of  the  United  States 
ever  cases  where  any  person  is  sought  to  he  deprived  of  his 
rights  under  the  Constitution  of  the  United  States,   did  not 
authorize  a  writ  of  certiorari  to  a  State  court  for  the  removal 
of  proceedings  by  the  State  against  a  railroad  company,  under 
a  State  statute,  entitled  "An  act  to  prevent  extortion  and  unjust 
discrimination  in  the  rates  charged  the  passengers,  etc.,  and  to 
punish  the  same,"  where  it  was  insisted  by  defendant  that  this 
act  of  the  State  legislature  impaired  the  obligation  of  the  eon- 
tract  which  the  State  had  made  with  the  company  by  its  char- 
ter.22    A  proceeding  by  a  State  to  forfeit  a  franchise  cannot 
be  removed  to  the  Federal  courts,  on  the  ground  that  it  impairs 
the  obligation  of  a  contract;  the  prohibition  of  the  Constitution 
being  that  "no  State  shall  pass  any  law  impairing  the  obliga- 
tion of  contracts."  23    Whenever  the  right  or  title  of  either  party 
is  grounded  upon  State  legislation  which  undertakes  to  transfer 
to  him  property  belonging  to  the  other  without  due  process  of 
law,  there  is  a  controversy  as  to  the  operation  and  effect  of  the 
Constitution,  to  which  the  Federal  jurisdiction  attaches.24     A 
suit  to  enjoin  an  action  by  or  under  a  State  authority  within 
the  jurisdiction  conferred  by  a  State  statute,  which  action  is 
alleged  with  some  reasonable  foundation  for  the  position,  to 
take  the  complainant's  property  without  due  process  of  law;25 
or  to  deny  him  the  equal  protection  of  the  laws;26  or,   when 
such  action  is  legislative  in  its  nature,  to  impair  the  obligation 


21  Stone  v.  Bank  of  Kentucky,  174 
U.  S.  799,  43  L.  ed.  1187;  affirming 
Bank  of  Kentucky  v.  Stone,  38  Fed. 
383. 

22  Illinois  v.  Chicago  &  A.  R.  Co., 
Fed.   Cas.  No.  7,006    (6  Biss.   107). 

23  Kentucky  v.  Louisville  Bridge 
(  u..  42  Fed.  241. 

24  Crystal  Springs  Land  ft  Water 
Co.  v.  Los  Angeles,  76  Fed.  148. 

25  Norwood  v.  Baker,  172  1.  S. 
269,  13  L.  ed.  443;  San  Joaquin  & 
King's  River  Canal  ft  Irrigation  Co. 
v.   Stanislaus  County.  9U   Fed.  516; 


San  Francisco  Gas  &  El.  Co.  v.  City 
and  County  of  San  Francisco,  189 
Fed.  943.  See  Covington  &  L.  Turn- 
pike Road  Co.  v.  Sandford,  164  U. 
S.  578,  41  L.  ed.  560. 

26  Southern  Ry.  Co.  v.  North 
Carolina  Corp.  Commission,  97  Fed. 
513;  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
v.  Davis,  132  Fed.  629:  Douglas 
Park  Jockey  Club  v.  Grainger,  146 
Fed.  414;  Michigan  Railroad  Tax 
Cases,  138  Fed.  223:  Central  R.  Co. 
of  New  Jersey  v.  Jersey  City,  199 
Fed.    237,    245.      In    the    last    two 


§  25] 


SUITS    UNDER   CONSTITUTION. 


73 


of  a  contract  that  plaintiff  holds,27  arises  under  the  Constitu- 
tion of  the  United  States.  Such  a  suit,  when  there  is  no  color 
for  the  contention  that  the  defendants  act  under  a  statute  of 
the  State,  does  not ; 28  unless  perhaps  when  they  act  in  a  quasi- 
judicial  capacity.29  Trespasses  on  the  property  rights  of  an 
individual,  committed  by  public  officers  or  agents  professedly 
acting  under  authority  of  a  State  law,  but  which  are  not  only 
unauthorized  by  such  law,  but  by  a  fair  construction  thereof 
are  prohibited,  cannot  be  imputed  to  the  State,  so  as  to  bring 
them  within  the  constitutional  inhibition  to  deprive  persons  of 
property  without  due  process  of  law,  and  therefore  do  not  con- 
fer jurisdiction  on  a  Federal  court  to  grant  relief.30  The  pro- 
visions of  the  Fourteenth  Amendment,  securing  personal  rights, 
are  directed  against  the  States  and  their  agencies,  and  not 
against  the  acts  of  private  individuals,  and  these  give  no  right  of 
action  in  the  Federal  courts  on  the  ground  that  a  constitutional 
question  is  involved.31  A  suit  arises  under  the  Constitution  of 
the  United  States  when  brought  to  enjoin  the  enforcement  of 
an  order  by  a  State,  or  county,32  or  municipal,33  board,  which 
reduces  the  charges  of  a  corporation  employed  in  a  public  serv- 
ice so  low  as  to  amount  to  a  deprivation  of  its  property  without 
due  process  of  law.  The  averment,  that,  if  a  temporary  injunc- 
tion granted  by  an  inferior  State  court,  which  because  of  the 
alleged  invalidity  of  a  contract  between  a  municipality  and  a 
water  company  restrained  the  future  payment  of  rentals  ac- 


cases,  a  charge  was  made  of  a  dis- 
crimination against  the  complain- 
ants in  assessments  for  taxation. 

27  Walla  Walla  City  v.  Walla 
Walla  Water  Co.,  172  U.  S.  1,  43 
L.  ed.  341;  affirming  60  Fed.  957. 
And  other  authorities  cited  supra, 
note  8. 

28  St.  Joseph  &  G.  I.  R.  Co.  v. 
Steele,  167  U.S.  650,  42  L.  ed.  315; 
Barney  v.  New  York,  103  U.  S.  430, 
48  L.  ed.  737;  Huntington  v.  New 
York,  103  U.  S.  441,  48  L.  ed.  741; 
affirming  118  Fed.  683:  Kievnan  v. 
Multnomah  County,  05  Fed.  849; 
Arbuckle  v.  Blackburn.  65  L.R.A. 
864,  113  Fed.  616,  51  C.  C.  A.  122; 


St.    Louis,    I.    M.    &   S.    Ry.    Co.   v. 
Davis,  132  Fed.  629. 

29  Raymond  v.  Chicago  X^nion 
Traction  Co.,  207  U.  S.  20,  38,  52 
L.  ed.  78. 

30  Barney  v.  New  York,  103  U.  S. 
430,  48  L.  ed.  737;  Huntington  v. 
New  York,  118  Fed.  683;  allirmed 
193  U.  S.  441,  48  L.  ed.  741. 

31  Marten  v.  Holbrook,  157  Fed. 
716. 

32  San  Joaquin  &  K.  R.  Canal  & 
Irr.  Co.  v.  Stanislaus  County,  90 
Fed.  516. 

33  Wilmington  City  Ry.  Co.  v. 
Taylor,   198  Fed.   159. 


74  OBIGINAl    JL'ItlSDK "I  loX.  [|    25 

cruing  under  the  same,  should  ultimately  be  made  perpetual, 
the  company  would  thereby  be  deprived  of  its  property  without 
due  process  of  law,  does  not  justify  a  Federal  Circuit  Court 
in  assuming  jurisdiction  of  a  suit  by  the  water  company  To 
restrain  the  municipality  from  attempting  to  annul  the  con- 
tract.34 A  street  railroad  company  which  has  acquired  a  fran- 
chise to  construct  its  line  has  a  property  right  therein  of  which  it 
cannot  be  deprived  without  due  process  of  law,  and  it  has  also 
contract  rights  which  cannot  be  impaired  by  the  State  through 
fiibsequent  legislation;  but,  before  it  can  invoke  the  provisions 
of  the  Constitution  of  the  United  States  for  the  protection  of 
Mich  rights  by  a  suit  in  a  Federal  court,  it  must  show  that  it  has 
done  all  the  things  required  under  the  laws  of  the  State  to  vest 
it  with  the  contract  and  rights  which  it  seeks  to  protect.35  The 
Iowa  Code  provided,  that  any  building  where  intoxicating 
liquors  are  manufactured,  sold,  or  given  away,  contrary  to  law. 
shall  be  a  nuisance,  and  may,  along  with  the  vessels  and  their 
contents,  and  fixtures,  be  abated  by  "an  action  in  equity."  The 
person  proceeded  against  was  also  made  liable  to  fine  and  im- 
prisonment. Defendant,  in  a  proceeding  under  this  statute,  re-* 
moved  the  case  to  the  Federal  court  on  the  grounds  that,  inas- 
much as  the  Supreme  Court  of  the  State  had  declared  the  law 
to  be  valid,  he  was  virtually  deprived  of  his  right  to  a  trial  by 
jury,  and  that  he  had,  prior  to  the  passage  of  the  act,  at  a  large 
expense  established  the  place  sought  to  be  declared  a  nuisance, 
and  that  it  may  only  fit  for  a  saloon  and  brewery.  It  was  held, 
that  no  Federal  question  was  involved,  and  the  case  was  remand- 
ed to  the  State  court.36  A  suit  by  property  owners  to  enjoin  city 
officials  from  levying  taxes  and  from  exercising  any  jurisdiction 
over  annexed  territory,  on  the  ground  that  the  statute  extending 
the  corporate  limits  is  void  under  the  State  Constitution,  can- 
not be  maintained  in  a  Federal  court,  on  the  theory  that  the 
assessment  of  taxes  and  other  official  acts  by  the  defendants,  be- 
ing without  warrant  of  any  valid  law,  will  be  a  taking  of  prop- 
erty without  due  process  of  law,  and  a  denial  of  the  equal  pro- 
tection of  the  laws.     The  real  issue  is  whether  the  statute  en- 

34  Defiance  Water  Co.  v.  Defiance,  36  Schmidt  v.  Cobb.  119  U.  S.  286, 
191  U.  S.  184.  48  L.  ed.  140.                      30  L.  ed.  321    (a  divided  court). 

35  Underground     K.     R;     v.     New 
York.  116  Fed.  95-2. 


§    25]  SUITS    UNDER    CONSTITUTION.  75 

largjug  the  corporate  limits  is  invalid  under  the  State  Consti- 
tion,  and  no  Federal  question  is  involved.37    A  complaint  which 
alleges  that  defendants  entered  into  a  conspiracy  by  unlawful 
means  to  deprive  plaintiff  of  his  liberty  and  property,  and  that 
they  unlawfully,  forcibly,  and  without  due  process  of  law  caused 
his  arrest  and  confinement  in  a  State  insane  asylum,  states  a 
cause  of  action  for  false  imprisonment,  not  involving  any  Fed- 
eral question,  and  which  it  is  the  province  of  the  State,  and  not 
the  federal  courts  to  redress.88    It  was  held  :  that  a  bill  filed  by 
the  State  of  Illinois  in  a  State  court  against  the  Chicago  Drain- 
age District,  a  corporation  created  by  an  act  of  its  legislature,  to 
enjoin  the  defendant,  in  the  prosecution  of  the  work  for  which 
it,  was  chartered,  from  the  reduction  of  the  level  of  the  water 
in  the  Illinois  and  Michigan  canal,  and  alleging  as  grounds  for 
such  relief  that,  by  the  acts  of  Congress  authorizing  the  State 
to  construct  the  canal  and  granting  lands  in  aid  thereof,  the 
State  was  required  forever  to  maintain  such  canal  as  a  navigable 
waterway  for  the  free  passage  of  any  property  of  the  United 
States,  and  that  under  the  terms  of  such  acts  the  State  could 
confer  no  power  on  the  defendant  to  destroy  the  same;  shows  that 
a  Federal  question  is  involved  in  the  suit,  which  renders  it  re- 
movable.39    It  was  held:     that  a  suit  which  raised  questions 
concerning  the  validity  and  construction  of  State  legislation, 
dividing  its  territory  into  congressional  districts  in  pursuance 
of  the  apportionment  made  by  Congress,  did  not  arise  under  the 
Constitution  and  laws  of  the  United  States.40     That  the  State 
courts  have  the  right  to  pass  upon  the  title  to  a  State  office  and 
to  expel  the  incumbent  from  the  same,  because  he  holds  an  office 
under  the  United  States,  in  violation  of  the  State  Constitution.41 
That  an  action  in  the  nature  of  quo  warranto,  to  determine  the 
title  to  the  office  of  elector  of  President  and  Vice-President  of 
1he  United  States,  brought  in  a  State  court,  is  not  removable  t<» 
the  Circuit  Court  of  the  United  States  on  the  ground  that  the 
matters  in  dispute  therein  arise  under  the  Constitution  and  laws 

37  McCain  v.  Des  Moines,   174   U.  39  People  v.  Sanitary  Dist.  of  Clii- 
S.   168,  43  L.  ed.  936;   affirming  84       cago,  08   Fed.   150. 

Fed.  726.  40  Anthony    v.    Burrow.    129    Fed. 

38  Marten    v.    Holbrook,    157    Fed.       783. 

716.  41  Bishop   v.   State.    14!)    Ind.   233, 

48  N.  E.  1038,  ::'.»  L.R.A.  278. 


V6 


ORIGINAL    JURISDICTION. 


[§  25 


of  the  United  States.42     Jurisdiction  of  an  action  to  enjoin  the 
taxation  of  a  bridge  by  the  local  authorities  as  a  toll  bridge,  it 
being  taxed  by  the  State  as  a  part  of  complainant's  railroad,  is 
not  conferred  upon  a  Federal  court,  by  an  allegation  that  the 
bridge  was  built  under  authority  of  an  act  of  Congress,  where 
the  right  of  the  State  to  tax  the  bridge  is  conceded,  the  con- 
troversy being  as  to  the  method  of  taxation  under  the  State 
laws.43    A  mere  protest  against  the  payment  of  a  license  tax  on 
the  ground  that  the  law  seeking  to  impose  the  same  is  unconsti- 
tutional will  not  give  a  Federal  court  jurisdiction  to  try  and  de- 
termine the  constitutionality  of  the  law.44     A  suit  brought  in 
the  State  court  to  enjoin  the  threatened  importation  of  armed 
men  into  a  county  where  a  strike  existed,  on  the  ground  that 
this  would  amount  to  a  public  nuisance  and  would  endanger  the 
health,  morals,  peace  and  good  order  of  the  community,  is  not 
removable  to  a  District  Court  of  the  United  States  as  one  aris- 
ing under  the  Constitution  and  laws  of  the  United  States;  since, 
even  assuming  that  the  bill  shows  upon  its  face  that  the  relief 
sought  would  be  inconsistent  with  the  power  to  regulate  com- 
merce, or  with  regulations  established  by  Congress,  or  with  the 
Fourteenth  Amendment,  such  an  assumption  only  demonstrates 
that  the  bill  cannot  be  maintained  and  not  that  the  cause  of 
action   arose   under   the   Constitution   or   laws   of  the   United 
States.45 

A  suit  arises  under  the  Constitution  of  the  United  States 
when  brought  to  enjoin  State  officers  from  assessing,46  for  taxa- 
tion, complainant's  property  at  a  higher  percentage  of  its  value 
than  that  at  which  other  property  in  the  State  is  assessed,  or 
from  collecting  taxes  so  assessed,47  when  the  State  officers  act 


42  State  v.  Bowen  ( South  Caro- 
lina), 8  S.  C.  (8  Rich.)  382. 

43  St.  Joseph  &  G.  I.  R.  Co.  v. 
Steele,  167  U.  S.  659,  42  L.  ed.  315. 

44  Corbus  v.  Alaska  Treadwell 
Gold-Min.  Co.,  99  Fed.  334. 

45  Arkansas  v.  Kansas  &  T.  Coal 
Co.,  183  U.  S.  185,  46  L.  ed.  144; 
reversing  96  Fed.  353. 

46  W.  U.  Tel.  Co.  v.  Poe,  61  Fed. 
449;  W.  U.  Tel.  Co.  v.  Norman,  77 
Fed.  13;  Nashville,  C.  &  St.  L.  Ry. 


v.  Taylor,  86   Fed.  168.     See  C.   C. 
A.,  88  Fed.  350. 

47  Third  Nat.  Bank  v.  Mylin,  76 
Fed.  385.  See  County  of  San  Ma- 
teo v.  Southern  Pacific  R.  Co.,  13 
Fed.  145 ;  where  a  removal  of  an 
action  to  collect  State  and  county 
taxes  was  allowed,  because  it  ap- 
peared that,  in  accordance  with  the 
State  Constitution,  the  amount  of 
mortgages  thereupon  had  not  been 
deducted   from   the   property   of  the 


§  25] 


SUITS   UXDER   CONSTITUTION. 


77 


in  obedience  to  a  State  statute;48  and  even,  it  has  been  held, 
when  they  do  not,  but  the  assessment  is  made  or  to  be  made  by 
a  State  court  of  equalization  as  a  quasi  judicial  body,  although 
the  State  statutes  and  Constitution  require  uniformity.49  Suits 
arise  under  the  Constitution  of  the  United  States,  which  are 
brought:  to  enjoin  an  assessment  that  plaintiff  alleges  was  made 
in  violation  of  his  right  to  an  exemption  because  of  the  owner- 
ship of  United  States  bonds.50  To  enjoin  the  enforcement  of  a 
speeial  assessment  for  a  betterment,  made  under  a  rule  or  system 
which  throws  such  an  unjust  burden  upon  the  landowner" as  to 
deprive  him  of  property  without  due  process  of  law.51  To  en- 
join the  collection  of  taxes  upon  shares  of  stock  in  a  national 
bank,  which  are  taxed  at  a  higher  rate  than  other  moneyed 
capital  within  the  State,  in  violation  of  section  5319  of  the  Re- 
vised Statutes  of  the  United  States.52  To  enjoin  the  collection 
of  taxes  on  the  capital  stock  of  a  bank,  when  it  is  claimed  that 
the  statute  under  which  they  were  levied  impairs  the  obligation 
of  the  contract  concerning  taxation  embodied  in  the  bank's  char- 


ter 


53 


An  issue  whether  full  force  and  effect  had  been  given  to  the 
judgment  of  a  State  court  has  been  held  not  to  involve  the  con- 
struction of  the  Constitution  of  the  United  States.54  The  ques- 
tion whether  a  party  to  proceedings  in  a  State  court  continued 
such  after  a  certain  judgment  in  his  favor,  and  the  estate 
represented  by  him  as  administrator  became  bound  by  proceed- 
ings subsequent  to  the  judgment,  is  not  dependent  for  solution 
upon  any  construction  of  the  Constitution  or  laws  of  the  United 


defendant  and  other  quasi  public 
corporations  when  assessed;  al- 
though in  assessing  for  taxation 
other  property,  the  amount  of  mort- 
gages thereupon  was  first  deducted. 

48  County  of  San  Mateo  v.  South- 
ern Pacific  R.  Co.,  13  Fed.  145. 

49  Raymond  v.  Chicago  Union 
Traction  Co.,  207  U.  S.  20,  38,  52 
L.  ed.  78,  88;  Southern  Ry.  Co.  v. 
North  Carolina  Corp.  Commission, 
J>7  Fed.  513.  Contra,  St.  Louis  Irr. 
&  S.  Ry.  Co.  v.  Davis,  132  Fed.  629. 

50  People's  Sav.  Bank  v.  Layman, 
134  Fed.  635. 


51  Norwood  v.  Baker,  172  Tj.  S. 
269,  43  L.  ed.  443. 

52  Third  Nat.  Bank  v.  Mvlin,  76 
Fed.  385. 

53  Union  &  Planters'  Bank  v. 
Memphis,  111  Fed.  561,  49  C.  C.  A. 
455. 

54  Chicago  &  A.  R.  Co.  v.  Wig- 
gins' Ferry  Co.,  108  U.  S.  18,  27 
L.  ed.  636:  affirming  order  Wig- 
gins' Ferry  Co.  v.  Chicago  &  A.  R. 
Co.,  11  Fed.  381.  3  McCrary,  609; 
Merritt  v.  Am.  Steel  Barge  Co.,  C 
C.  A.,  75  Fed.  813. 


78  OEIGINAL    JURISDICTION.  [§    26 

States,  so  as  to  give  the  right  of  removal  to  the  Federal  court.55 
A  mortgagee  may  sue  in  a  court  of  the  United  States  to  prevent 
contracts  pledged  by  the  mortgagor  from  impairment  by  State 
legislation,  irrespective  of  the  citizenship  of  the  mortgagor.56 
§  26.  Suits  arising  under  treaties  of  the  United  States. 
A  suit  arise  under  a  treaty  of  the  United  States  when  its  de- 
cision depends  upon  a  construction  or  the  determination  of  the 
validity  of  the  same.1     It  was  held:  that  an  action  by  a  tribal 
indian  for  false  imprisonment  under  process  of  a  State  court, 
because  of  the  violation  of  a  State  law  from  which  he  claimed  ex- 
emption, arose  under  the  laws  and  treaties  of  the  United  States.2 
Otherwise  not,  although  the  suit  was  brought  to  protect  rights 
which  are  claimed  under  such  treaty.3    It  was  held:  that  where 
both  parties  claimed  under  Mexican  grants,  confirmed  and  pat- 
ented in  accordance  with  a  provision  of  a  treaty,  the  plaintiff 
claiming  certain  water  rights  thereunder,  which  the  defendant 
disputed;  the  suit  did  net  arise  under  a  treaty  of  the  United 
Stales.4     Where  a  complaint  in  ejectment  against  private  in- 
dividuals alleged  that  plaintiff  was  ousted  in  violation  of  the 
provisions  of  the  treaty  with  France,  of  October  21,  1808,  for 
the  protection  of  the  inhabitants  of  the  ceded  territory  in  the  en- 
joyment of  their  property,  it  was  held  that  it  did  not  show  a  case 
arising  under  a  treaty  of  the  United  States,  there  being  no  as- 
sertion of  any  right,  title,  privilege  or  immunity,  derived  from 
such  treaty  as  against  the  defendants,  and  no  charge  that  they 
took  possession  by  direction  of  the  Government  of  the  United 
States.5    A  suit  may  be  maintained  in  a  District  Court  of  the 
United  States  by  the  consul  of  Austria  and  Hungary,  to  restrain 
a  beneficial  association  from  using  the  name  of  the  Emperor  of 
Austria  and  Hungary,  as  a  part  of  its  corporate  name,  and  the 
use  of  his  portrait  as  a  part  of  its  advertising  literature,  in  order 
fraudulently    to    induce    his   subjects,    resident    in    the    United 

55<;ibbs    v.    Crandall,    120    U.    S.  408.  40  L.  ed.  199;  Muse  v.  Ailing 

105.  :!<i   L.  ed.  590.  ton   Hotel  Co.,  168  U.  S.  430,  42  L. 

56C'itv   and   County   of   Denver   v.  ed.  531.     See  Gill  v.  Oliver.  11   How. 

New    York    Tr.    Co.,  '  C.    C.    A.,    187  (U.S.)   529,  545.  13  L.  ed.  799,  8()!i. 

Fed.  890.  4  Crystal   Springs   Land  &   Water 

§  20.     1  Muse  v.  Arlington   Hotel  Co.   v.  Los   Angeles,   177   U.  S.   169, 

Co.,  168  U.  S.  430,  42  L.  ed.  531.  44  L.  ed.  720;  affirming  82  Fed.  114. 

2  Peters  v.  Malin.   Ill   Fed.  244.  5  FHhiol    v.    Maurice,    185    U.    S. 

BBorgmeyer    v.    Idler.    159    U.    S.  108,  46  L.  ed.  827. 


§     27]  FEDERAL    CORPORATIONS.  79 

States,  to  believe  that  the  association  is  conducted  under  tin* 
customs  of  their  own  country,  and  that  their  Emperor  is  identi- 
fied with  the  same  and  a  patron  thereof.6 

§  27.   Suits  where  the  parties  are  Federal  corporations. 
In  general.    When  either  party  is  a  corporation  chartered  by 
Congress,  the  case  is  one  arising  under  the  Constitution  and 
laws  of  the  United  States;  and  except  in  the  case  of  national 
banks,1  a  District  Court  of  the  United  States  may  take  jurisdic- 
tion of  the  same,  either  originally,2  or  by  removal.3     The  court 
will  take  judicial  notice  that  a  party  to  the  action  is  incorpo- 
rated by  an  act  of  Congress,  although  the  pleadings  are  silent 
■upon  the  subject.4    It  is  not  the  domicile  of  a  corporation  created 
by  an  act  of  Congress  which  confers  jurisdiction  on  the  Federal 
courts  of  suits  to  which  it  is  a  party,  but  the  fact  that  it  was 
so  created,  and  that  any  suit  by  or  against  it  arises  under  a  law 
of  the  United  States.5'    It  was  held,  that  by  the  consolidation 
of  a  Federal  with  a  State  corporation,  the  former  did  not  lose 
any  of  its  rights  or  franchises  as  such,  and  was  not  estopped  from 
removing  suits  brought  against  it  in  the  State  courts  to  those  of 
the  United  States,  notwithstanding  that  the  laws  of  the  State 
in  question  provided:     "If  any  railroad  company,  organized 
\nu\vv  the  laws  of  this  State,  shall  consolidate  by  sale  or  other- 
wise with  any  railroad  company  organized  under  the  laws  of 
any  other  State  or  of  the  United  States,  the  same  shall  not  there- 
by become  a  foreign  corporation,  but  the  courts  of  this  State 
shall  retain  jurisdiction  in  all  matters  which  may  arise  as  if 

6  Von    Thodorovieh    v.    Franz    Jo-  of   Dunn.    212    U.   S.   374,   53   L.  ed. 

seph  Beneficial  Ass'n,  154  Fed.  1)11.  558;     Cruikshank    v.     Fourth     Nat. 

§  27.     iSee  infra,  §  28.  Bank,  10  Fed.  888,  21  Blatclu.  322; 

2  Osborn  v.  U.  S.  Bank,  9  Wheat.  Allen  v.  Texas  &  P.  R.  Co.,  25  Fed. 
738,  823,  G  L.  ed.  204,  224;  North-  513;  Supreme  Lodge  of  Knights  of 
ern  Pac.  R.  Co.  v.  Amato,  144  U.  S.  Pythias  of  the  World  v.  Hill,  7(5 
405.  30  L.  ed.  500:  U.  S.  Freehold  Fed.  408,  22  C.  C.  A.  280;  I'nion 
Land  &  Emigration  Co.  v.  Gallegos,  Pac.  R.  Co.  v.  McComb,  58  How. 
89  Fed.  709,  32  C.  C.  A.  470.  Prac.    478;    Texas   &   P.   Ry.    Co.    v. 

3  Pacific    R.    R.    Removal    Cases;  Watson,  43  S.  W.  1000. 

I'nion   Pac.  R.  Co.  v.  Myers,  115  U.  *  Matter  of  Dunn,  212  U.  S.  374, 

S.  1,  29  L.  ed.  319;  reversing  Myers  53  L.  ed.  558. 

v.  Union  Pac.  Ry.  Co..  10  Fed.  292,  5  Supreme      Lodge,      Knights      of 

3  McCrary,  578;  Knights  of  Pythias  Pythias  v.  England,  94  Fed.  309,  36 

v.  Kalinski,  163  U.  S.  289.  41  L.  ed.  C.  C.  A.  298. 

163,  16  Sup.  Ct.  Rep.   1047:  Matter 


80 


ORIGIXAU    JURISDICTION. 


[§   27 


said  consolidation  had  not  taken  place."  6  When  a  party  is  a 
i  orporation,  which  derives  its  charter  from  a  Territorial  statute, 
that  fact  'lies  not  make  the  case  arise  under  the  laws  of  the 
United  States,7  although  it  was  organized  in  pursuance  of  the 
corporation  laws  of  Arkansas  under  an  act  of  Congress,8  which 
directed  that  they  should  be  enforced  in  that  Territory  with 
the  same  effect  as  if  enacted  in  haec  verba.9 


6. Allen  v.  Texas  &   P.  R.  Co.,  25 
Fed.  5] 3. 

7  Adams  Express  Co.  v.  Denver  & 
K.  G.  R.  Co.,  1G  Fed.  712:  Maxwell 
v.  Federal  Gold  &  Copper  Co..  C.  C. 
A.,  155  Fed.  110.  An  act  of  Con- 
gress provides:  that  the  Oregon 
Short  Line  Railway  Company,  a 
corporation  of  the  Territory  of 
Wyoming,  "is  hereby  made  a  rail- 
way corporation  in  the  Territories 
of  Utah,  Idaho  and  Wyoming,"  un- 
der the  same  limitations,  and  with 
the  same  rights  that  it  previously 
had  under  its  articles  of  incorpora- 
tion in  Wyoming,  and  with  all  the 
rights  and  privileges  within  these 
Territories  secured  to  railway  com- 
panies by  a  previous  act  of  Con- 
gress granting  to  railroads  the  right 
of  way  through  public  lands.  An- 
other act  of  Congress  provides:  that 
the  Utah  &  Northern  Railway  Com- 
pany, a  corporation  organized  under 
the  laws  of  Utah,  "is  hereby  made  a 
railway  corporation  in  the  Territo- 
ries of  Utah,  Idaho  and  Montana," 
under  the  same  limitation*,  and 
witli  the  same  rights  that  it  then 
Lad  under  its  articles  of  incorpora- 
tion. It  was  held  on  a  petition 
of  the  Oregon  Short  Line  &  Utah 
Northern  Railroad  Company,  a  cor- 
poration formed  by  a  consolidation 
of  these  two  companies:  that  the 
statute  gave  no  powers  or  rights  to 
be  exercised  outside  of  the  Territo- 
ries named  therein,  and  therefore 
did    not    give    such    corporations    a 


Federal  character;  and  that  peti- 
tioner and  its  several  constituent 
companies  were  Territorial  organi- 
zations, and  not  entitled  to  a  re- 
moval to  the  Federal  court  of  an 
action  brought  against  it  in  the 
Supreme  Court,  as  a  suit  arising 
under  the  laws  of  the  United  States. 
Oregon  Short  Line  &  U.  N.  R.  Co. 
v.  Skottowe,  162  U.  S.  490.  40  L. 
ed.  1048;  affirming  Skottowe  v.  Ore- 
gon Short  Line  &  U.  N.  Ry.  Co., 
22  Or.  430,  30  Pac.  222,  16  L.R.A. 
593 ;  approving  Conlon  v.  Oregon 
Short  Line  &  U.  N.  Ry.  Co.,  21  Or. 
462,  28  Pac.  501.  In  an  elaborate 
opinion  32  Wash.  Law  Rep.  758, 
761,  Fred  Dennet,  Esq.,  of  D.  C.  bar 
argued:  that  organizations  incorpo- 
rated under  the  Code  of  the  District 
of  Columbia  (Act  of  March  3,  1901, 
amended  January  31  and  June  30, 
1902)  have  the  right  to  remove 
suits  brought  against  them.  See 
Lyons  v.  Bank  of  Discount.  154  Fed. 
391. 

8  31  St.  at  L.  794.  See  Kansas 
P.  R.  Co.  v.  Atchison.  T.  &  S.  F.  R. 
Co.,  112  TJ.  S.  414,  415,  2S  L.  ed. 
794.  795,  5  Sup.  Ct.  208. 

9-Slmlthis  v.  McBougal,  225  U.  S. 
561,  56  L.  ed.  1205:  Boyd  v.  Oreat 
Western  Coal  &  Coke  Co..  189  Fed. 
115.  Contra,  Canary  Oil  Co.  v. 
Standard  Asphalt  &  Rubber  Co..  182 
Fed.  663.  See  Daly  v.  National  Life 
Ins.  Co..  64  Ind.  1  ;  Knights  of 
Pythias  v.  Kalinski,  163  U.  S.  289, 
41    L.    ed.    163:    16    Sup.    Ct.    1047. 


§    28]  NATIONAL  BANKS.  81 

If  the  Federal  corporation  is  actually  interested  in  the  con- 
troversy,10 the  joinder  of  another  defendant,  even  if  he  is  the 
receiver  of  the  other,  will  not  prevent  the  removal.11  It  was 
held :  that  proceedings  for  the  condemnation  of  a  right  of  way 
cannot  be  removed  into  a  Federal  court  by  a  Federal  corpora- 
tion joined  as  a  defendant,  when  it  does  not  appear  that  such 
corporation  is  concerned  in  the  litigation,  for  in  such  case  the 
record  does  not  show  that  the  case  is  one  arising  under  the  Con- 
stitution and  laws  of  the  United  States.12 

§  28.  National  banking  associations.  The  Judicial  Code 
provides  concerning  suits  to  which  national  banks  are  parties, 
that  the  District  Courts  of  the  United  States  shall  have  juris- 
diction "of  all  cases  commenced  by  the  United  States,  or  by  direc- 
tion of  any  officer  thereof,  against  any  national  banking  associa- 
tion, and  cases  for  winding  up  the  affairs  of  any  such  bank ;  and 
of  all  suits  brought  by  any  banking  association  established  in 
the  district  for  which  the  court  is  held,  under  the  provisions 
of  title  'National  Banks,'  Revised  Statutes,  to  enjoin  the 
Comptroller  of  the  Currency,  or  any  receiver  acting  under  his 
direction,  as  provided  by  said  title.  And  all  national  banking 
associations  established  under  the  laws  of  the  United  States 
shall,  for  the  purposes  of  all  other  actions  by  or  against  them, 
real,  personal,  or  mixed,  and  all  suits  in  equity,  be  deemed  citi- 
zens of  the  States  in  which  they  are  respectively  located."  *  This 
differs  from  the  previous  law,  which  specifically  provided :    "In 

See,  also,  Harv.  Law  Review,  XXV.,  S.  W.  133.     See  Fisk  v.  Union  Pac. 

pp.  291,  292,  295.  R.    Co..    Fed.     Cas.    Xo.    4,827     (6 

10  Washington  &  I.  R.  Co.  v.  Blatchf.  302);  s.  c,  Fed.  Cas.  Xo. 
Coeur  D'Alene  R.  &  Xav.  Co..  160  4.828  (8  Blatchf.  243).  Contra, 
U.  S.  77,  40  L.  ed.  34G;  affirming  Scott  v.  Choctaw,  0.  &  G.  R.  Co., 
60  Fed.  081,  9  C.  C.  A.  303,  15  U.  112  Fed.  180;  Hazard  v.  Durant,  9 
S.  App.  359.  R.   I.   602;    Texas   &  P.   Ry.   Co.   v. 

11  Washington  &,  I.  R.  Co.  v.  Huber  (Texas),  75  S.  W.  547.  See 
Coeur  D'Alene  R.  &  Xav.  Co.,  160  also,  supra,  §  24,  notes  58,  59,  60, 
U.   S.   77:    Affirming  60   Fed.  981,  9  and  infra.  %  35. 

C.   C.   A.   308,   15   U.   S.  App.   359;  12  Seattle   &   M.   R.   Co.   v.   State, 

Matter  of  Dunn,  212  U.  S.  374,  53  52    Fed.   594;    distinguishing   Union 

L.  ed.  558;   Lund  v.  Chicago.  R.  I.  Tac.  R.  Co.  v.  City  of  Kansas,   115 

&  P.  Ry.  Co.,  78  Fed.  385;   Martin  U.  S.  1,  29  L.  ed.  319. 
v.   St.   Louis   Southwestern   Ry.   Co.  §  28.     i§  24,  subd.  16,  36  St.  at 

of  Texas.  134  Fed.  134:  Texas  &  P.  L.   1087. 
Ry.   Co.   v.   Bloom,   85   Tex.   279,   20 
Fed.  Prac.  Vol.  I.— 6. 


82 


ORIGINAL,    JURISDICTION. 


[§  28 


such  cases  the  Circuit  and  District  Courts  shall  not  have  juris- 
diction other  than  such  that  they  would  have  in  cases  between 
individual  citizens  of  the  same  State." 2  Whether  this  omis- 
sion extends  the  jurisdiction  over  suits  to  which  national  bank- 
ing associations  are  parties,  has  not  yet  been  decided. 

Under  this  former  law  it  was  held  as  follows :  This  deprives 
the  Federal  courts  of  jurisdiction  of  a  suit  by  a  national  bank 
located  in  the  District  of  Columbia,  unless  some  other  Federal 
question  is  involved.3  The  Federal  courts  have  jurisdiction 
of  a  suit  by  a  national  bank  to  assert  a  right  protected  by  the 
Constitution  of  the  United  States,4  or  which  it  derives  from  an 
act  of  Congress,5  when  the  construction  of  the  Constitution  or 
statute  is  necessarily  involved ;  of  a  suit  for  the  appointment 
of  a  receiver  of  a  national  bank ; 6  of  suits  against  the  agents 
appointed  by  the  shareholders  of  national  banks  in  pursuance 
of  the  statutes  of  the  United  States ; 7  of  a  suit  to  charge  a 
national  bank  with  liability  as  a  stockholder  in  another  corpo- 
ration, where  the  power  of  the  defendant  to  hold  stock  is  dis- 
puted ; 8  of  a  suit  by  a  national  bank  upon  the  bond  of  its 
cashier,  conditioned  upon  the  performance  of  his  duties  "ac- 
cording to  the  law  and  the  by-laws"  of  the  bank,9  of  a  suit  by 
a  national  bank  against  its  officers,  to  recover  the  amount  of 


2  25  St.  at  L.  433,  §  4.  Leather 
Manufacturers'  Nat.  Bank  v.  Coo- 
per, 120  U.  S.  778,  30  L.  ed.  816; 
affirming  Cooper  v.  Leather  Manu- 
facturers' Nat.  Bank,  29  Fed.  161; 
Ex  parte  Jones,  164  U.  S.  691,  41 
L.  ed.  601  ;  Thomas  v.  National 
Bank  of  D.  0.  Mills,  106  Fed.  438, 
45  C.  C.  A.  407.  A  State  court  can 
issue  the  writ  of  mandamus  against 
the  officers  and  directors  in  a  proper 
case.  In  re  Tuttle,  170  N.  Y.  9. 
In  re  Fisher's  Estate  (Iowa  1905), 
102  N.  W.  797.  See  §  5,  note  18, 
supra. 

3  Am.  Nat.  Bank  v.  Tappan,  174 
Fed.  431. 

4  Larabee  v.  Dolley,  175  Fed.  365, 
384. 

5  Ibid. 


6  Snohomish  County  Bank  v. 
Puget  Sound  Nat.  Bank,  81  Fed. 
518;  Lake  Nat.  Bank  v.  Wolfebor- 
ough  Sav.  Bank,  C.  C.  A.,  78  Fed. 
517.  For  the  jurisdiction  of  suits 
by  or  against  such  receivers,  see 
infra,  §  35. 

7  International  Trust  Co.  v. 
Weeks,  203  U.  S.  364,  51  L.  ed.  224; 
Snohomish  County  v.  Puget  Sound 
Nat.  Bank,  81  Fed.  518;  Guarantee 
Co.  of  North  Dakota  v.  Haiiway, 
104  Fed.  369,  44  C.  C.  A.  312;  In- 
ternational Trust  Co.  v.  Weeks,  116 
Fed.  89S;  Weeks  v.  International 
Trust  Co.,  125  Fed.  370,  60  C.  C. 
A.  236;   reversing  116  Fed.  898. 

8  California  Nat.  Bank  v.  Ken- 
nedy,  167   U.  S.  362,  42  L.  ed.  198. 

9  Walker  v.  Windsor  Nat.  Bank, 
C.  C.  A.,  56  Fed.  76. 


20] 


PATENTS  AND  COPYRIGHTS. 


83 


loans  made  in  violation  of  the  Revised  Statutes  of  the  United 
States;10  of  a  suit  by  a  creditor  to  recover  money  loaned  to  a 
national  bank,  where  it  is  alleged  that  plaintiff  was  deceived  and 
defrauded  by  a  violation  of  the  acts  of  Congress ;  u  but  not, 
where  his  pleading  makes  no  reference  to  such  statutes;1  nor 
of  a  suit  by  a  depositor,  for  false  representations  in  advertise- 
ments, statements  and  reports ; "  of  a  suit  by  a  creditor  of  a 
national  bank  against  a  stockholder  of  the  same  to  enforce  a 
statutory  liability  created  by  U.  S.  R.  S.  §  5151 ; 14  of  a  suit 
by  a  stockholder  to  prevent  obedience  by  the  bank  to  a  statute 
which  is  obnoxious  to  the  Federal  Constitution ; 15  of  a  suit 
by  a  stockholder  for  an  accounting  by  the  directors  for  losses, 
caused  through  their  disobedience  of  acts  of  Congress,16  of  a 
suit  in  which  there  is  a  question  as  to  the  validity  of  a  tax  on 
a  shareholder  in  a  national  bank.17  Where  all  the  parties  on 
the  other  side  of  the  controversy  are  citizens  of  a  different  State 
from  that  where  the  national  bank  is  located,  the  District  Court 
may  have  jurisdiction  of  the  case  if  the  residence  and  value 
of  the  subject-matter  fulfill  the  statutory  requirements.18 

29.  Patent  and  copyright  cases.  Where  the  bill  prays  an 
injunction  against  the  infringement  of  a  patent  or  copyright, 
the  suit  arises  under  the  laws  of  the  United  States;  although 
the  defendant  does  not  dispute  the  validity  of  the  patent  or 
copyright ;  but  rests  his  defense  upon  a  license  or  other  contract 
giving  him  a  right  to  use  the  same,1  or  upon  the  contention 
that  the  complainant,  who  is  a  licensee,  has  forfeited  his  rights 


10  National  Bank  of  Commerce  v. 
Wade,  84  Fed.  10;  Abbott  v.  Na- 
tional Bank  of  Commerce,  56  P. 
376,  20  Wash.  552. 

11  Bailey  v.  Mosher,  63  Fed.  488, 
11   C.  C.  A.  304,  27  U.  S.  App.  330. 

12  Stuart  v.  Bank  of  Staplehurst 
(Nebraska),  78  N.  W.  298. 

13  Prescott  v.  Haughey,  6.5  Fed. 
653. 

14  Wyman  v.  Wallace,  201  U.  S. 
230,  50  L.  ed.  738. 

15  Larabee  v.  Dolley,  175  Fed.  365, 
384. 

16  Huff  v.  Union  Nat.  Bank,  173 
Fed.   333. 


17  Richards  v.  Rock  Rapids,  72 
Iowa,  77,  33  N.  W.  372. 

18  Petri  v.  Commercial  Nat.  Bank, 
142  U.  S.  644,  35  L.  ed.  1144;  First 
Nat.  Bank  v.  Forest,  40  Fed.  705. 

§  29.  l  White  v.  Rankin,  144  U. 
S.  628,  36  L.  ed.  569:  Fxcelsior 
Wooden  Pipe  Co.  v.  Pacific  Bridge 
Co.,  185  U.  S.  282,  46  L.  ed.  910; 
reversing  109  Fed.  497,  48  C.  C.  A. 
349;  Walter  A.  Wood  H.  Co.  v.  Min- 
neapolis E.  H.  Co.,  61  Fed.  256; 
Elgin  W.  P.  &  P.  Co.  v.  Nichols, 
C.  C.  A.,  65  Fed.  215;  Dunham  v. 
Bent,  72  Fed.  60;  Young  It.  L.  N. 
Co.  v.  Young  L.  N.  Co.,  72  Fed.  62 ; 


84 


ORIGINAL    JURISDICTIOX. 


[§    29 


under  the  license,  and  although  other  relief  is  prayed ; 2  except 
when  the  complaint  or  defendant's  answer  clearly  shows  that 
the  suit  is  in  reality  brought  to  enforce  a  contract.3  A  bill  in 
equity,  filed  in  a  State  court,  alleged  that  defendant  had  assert- 
ed to  persons  intending  to  purchase  boilers  from  complainant 
that  such  boilers  were  an  infringement  of  defendant's  patent, 
and  that  defendant  had  threatened  legal  proceedings  against 
such  intending  purchasers.  It  further  alleged  that  such  state- 
ments were  false;  that  defendant  would  not  bring  suit  for  in- 
fringement, "in  order  that  said  statements  might  be  answered 
and  refuted  in  a  court  of  justice;"  and  prayed  that  he  might 
be  in  joined  from  making  such  assertions  in  the  future,  and 
asked  damages  by  reason  of  such  assertions  in  the  past.  It  was 
held,  that  the  substantial  controversy  was  as  to  the  infringement 
of  the  patent,  and  that  the  Federal  court  had  jurisdiction, 
and  the  cause  was  removable.4  The  statute  vesting  exclusive 
jurisdiction  in  the  Federal  courts  of  "cases"  arising  under  the 
patent  laws,5  does  not  deprive  the  State  courts  of  power  to  de- 
termine questions  arising  under  the  patent  laws ;  for  there  is  a 
clear  distinction  between  a  case  and  a  question,  arising  under 


Atherton  Mach.  Co.  v.  Atwood-Mor- 
rison  Co.,  C.  C.  A.,  102  Fed.  949; 
reversing  99  Fed.  113,  43  C.  C.  A. 
72;  Victor  Talking  Mach  Co.  v.  The 
Fair,  C.  C.  A.,  123  Fed.  424; 
Wooster  v.  Crane  &  Co.,  C.  C.  A.. 
147  Fed.  515.  But  see  Silver  v. 
Holt,  84  Fed.  809;  McMullen  v. 
Bowers,  102  Fed.  494,  42  C.  C.  A. 
470;  Holt  v.  Silver,  169  Mass.  435, 
48  N.  E.  837. 

2  Excelsior  Wooden  Pipe  Co.  v. 
Pacific  Bridge  Co.,  185  U.  S.  282, 
46  L.  ed.  910;  Harrington  v.  Atlan- 
tic &  Pacific  Tel.  Co.,  143  Fed.  329; 
Heaton-Pen insular  Button-Fastener 
Co.  v.  Eureka  Specialty  Co..  C.  C. 
A.,  77  Fed.  288,  294,  25  C.  C.  A. 
267,  35  L.R.A.  728;  Rupp  &  Witt- 
genfeld  Co.  v.  Elliott,  C.  C.  A.,  131 
Fed.  730,  65  C.  C.  A.  544;  Indiana 
Mfg.  Co.  v.  Nichols  &  Shepard  Co., 
190  Fed.  579.     But  see  Cortelvou  v. 


Johnson  &  Co.,  207  U.  S.  196,  28 
Sup.  Ct.  105,  52  L.  ed.  167;  Bobbs- 
Merrill  Co.  v.  Straus,  210  U.  S.  339, 
345,  28  Sup.  Ct,  722,  52  L.  ed.  1086; 
Crown  Cork  &  Seal  Co.  v.  Brooklyn 
Bottle  Stopper  Co.,  C.  C.  A.,  Second 
Ct..  175  Fed.  1019,  99  C.  C.  A.  664; 
Am.  Graphophone  Co.  v.  Victor 
Talking  Mach.  Co.,  C.  C.  A.,  188 
Fed.  428;  s.  c,  188  Fed.  431. 

3  Excelsior  Wooden  Pipe  Co.  v. 
Pacific  Bridge  Co.,  185  U.  S.  282, 
287,  46  L.  ed.  910,  913.  See  Herzog 
v.  Herman,  151  X.  Y.  587,  56  Am. 
St.  Rep.  646,  45  X.  E.  1127;  New 
Marshall  Engine  Co.  v.  Marshall 
Engine  Co.,  223  U.  S.  473,  56  L.  ed. 
513. 

4  Moves  v.  Stirling  Co.,  71  Fed. 
43. 

5Jii(i.  Code,  §  256,  36  St.  at  L. 
1087. 


29] 


PATENTS  AND  COPYRIGHTS. 


85 


those  laws.     The  former  arises  when  the  plaintiff,  in  his  open- 
ing pleading,  sets  up  a  right  under  the  patent  laws  as  a  ground 
of  recovery,  and  then  the  State  courts  have  no  jurisdiction. 
The  latter  may  appear  in  the  plea,  answer,  or  testimony,  and 
the  State  courts  are  authorized  to  decide  them.6     It  has  been 
said-  that  a  dispute  as  to  the  assignability  of  a  license  to  use  a 
patent  arises  under  the  laws  of  the  United  States.7    But  suits  to 
determine  the  title  to  a  patent  which  are  not  founded  upon  Sec- 
tion 4915  of  the  Revised  Statutes  of  the  United  States,  do  not 
arise  under  the  laws  of  the  United  States.8    All  suits  which  are 
founded  upon  Section  4915  of  the  Revised  Statutes  arise  under 
the   laws    of    the    United    States.9     Suits    to    compel10  to  set 
{.side11  the  assignment  of  a  patent  or  copyright,12  to  enforce  by 
a  judgment  for  royalties,13  or  otherwise,14  or  to  set  aside  a  com 
tract  for  the  use  of  a  patent  or  copyright,  such  as  a  license, 
although  an  injunction  against  the  manufacture  of  articles  cov- 
ered by  the  patent  is  prayed  incidentally,16  do  not  arise  under 
the  laws  of  the  United  States,  unless  the  validity  of  the  patents 
and  copyrights  are  disputed.    An  action  on  a  judgment  obtained 


6  Pratt  v.  Paris  Gaslight  &  Coke 
Co.,  1G8  U.  S.  255,  42  L.  ed.  458: 
Herzog  v.  Heyman,  151  N.  Y.  587, 
56  Am.  St.  Pep.  646,  45  N.  E.  1127. 

7  Walter  A.  Wood  Co.  v.  Minne- 
apolis E.  H.  Co.,  61  Fed.  256. 

8  Montgomery  P.  S.  C.  Co.  v. 
Street  S.  C.  Line.  43  Fed.  329. 

9Bernardin  v.  Northall,  77  Fed. 
849.     See  infra,  §  147. 

10  Pliable  Shoe  Co.  v.  Bryant,  81 
Fed.  521  ;  Merrill  v.  Miller,  28 
Mont.  134,  72  P.  423:  New  Marshall 
Engine  Co.  v.  Marshall  Engine  Co., 
223  U.  S.  473.  56  L.  ed.  513. 

11  Harrington  v.  Atlantic  &  Pa- 
cific Tel.  Co.,  C.  C.  A.,  185  Fed.  493. 

12Hoyt  v.  Bates,  81  Fed.  641. 

13  Albright  v.  Teass.  106  U.  S. 
613,  27  L.  ed.  295;  Dale  Tile  Mfg. 
Co.  v.  Hyatt,  125  U.  S.  46,  31  L. 
ed.  683;  Felix  v.  Scharnweber,  125 
U.  S.  54,  31  L.  ed.  687;  Rhodes  v. 
Ashurst,  176  111.  351,  52  N.  E.  118; 
affirming  71  111.  App.  242.     But  see 


St.  Paul  v.  Starling,  127  U.  S.  376, 
32  L.  ed.  251. 

14  Marsh  v.  Nichols  S.  S.  Co.,  140 
U.  S.  344,  35  L.  ed.  413.  See  Pratt 
v.  Paris  Gaslight  &  Coke  Co.,  168 
U.  S.  255,  42  L.  ed.  458.  See  In- 
diana Mfg.  Co.  v.  Nichols  &  Shepard 
Co.,  190  Fed.  579;  Beavers  v.  Spinks 
(Mississippi),  26  So.  930. 

15  Wilson  v.  Sandford,  10  How. 
99.  13  L.  ed.  344;  Hartell  v.  Tilgh- 
man,  99  U.  S.  547,  25  L.  ed.  357: 
Wade  v.  Lawder,  165  U.  S.  624,  41 
L.  ed.  851;  Standard  D.  Mfg.  Co. 
v.  Nat.  Tooth  Co..  95  Fed.  291; 
Kurtz  v.  Strauss,  100  Fed.  800;  Mc- 
Mullen  v.  Bowers,  C.  C.  A.,  102  Fed. 
494;  Kurtz  v.  Straus,  106  Fed.  414, 
45  C.  C.  A.  366;  Cely  v.  Griffin,  113 
Fed.  981. 

16  New  Marshall  Engine  Co.  v. 
Marshall  Engine  Co.,  223  U.  S.  473, 
50  L.  ed.  513:  Lefkowitz  v.  Foster 
Hose   Supporter  Co.,   161   Fed.   367. 


86 


ORIGINAL    JURISDICTION. 


[§   30 


in  a  patent  suit  for  damages  and  profits,  does  not  arise  under 
the  laws  of  the  United  States/7  although  the  defendants  are  the 
directors  of  an  insolvent  corporation,  who  were  not  parties  to 
the  original  suit.18  On  a  bill  in  the  State  court  by  the  equitable 
assignee  of  a  patent  right,  under  an  agreement  executed  many 
months  before  the  patent  was  applied  for,  against  the  subsequent 
assignee  of  the  patent  after  it  was  issued,  to  compel  an  assign- 
ment to  complainant,  defendant  obtained  a  removal  on  a 
petition  averring  that  it  was  an  assignee  for  a  valuable 
consideration  and  without  notice,  and  invoking  for  his  pro- 
tection U.  S.  E.  S.  §  4898;  the  complainant's  agreement 
not  having  been  recorded.  It  was  held,  on  motion  to  re- 
mand, that  Section  -±898  was  designed  for  the  protection  of 
bona  fide  purchasers,  and  that  the  question  of  the  construction, 
application,  and  enforcement  of  this  statute  in  their  favor,  as 
against  prior  equitable  assignees,  was  a  Federal  question;  and 
the  motion  was  denied.19 

§  30.  Trademark  cases.  A  suit  to  enjoin  the  imitation  of 
a  trademark  does  not  arise  under  the  laws  of  the  United  States, 
unless  the  bill  shows  that  the  trademark  is  duly  registered,  and 
that  it  is  used  on  goods  intended  to  be  transported  to  a  foreign 
country  or  to  be  used  in  lawful  trade  with  an  Indian  tribe.1 
or  is  used  in  trade  among  the  several  States.2  Where  the  requi- 
site difference  of  citizenship  exists,  the  District  Court  may  take 
jurisdiction,  either  originally  or  upon  removal  of  a  bill  to  enjoin 
the  infringement  of  any  trademark,  whether  registered  or  not.3 
A  suit  to  restrain  unfair  competition  and  trade,  where  the  com- 
plainant seeks  no  protection  for  a  registered  trademark,  does 
not  present  a  Federal  question.4 


17  H.  C.  Cook  Co.  v.  Beecher,  217 
U.  S.  497,  54  L.  ed.  855:  affirming 
172  Fed.  166. 

18  Ibid. 

19  American  Solid  Leather  Button 
Co.  v.  Empire  State  Nail  Co.,  47 
Fed.  741. 

§  30.  1  Trademark  Cases,  100  U. 
S.  82,  25  L.  ed.  550 ;  Ryder  v.  Holt, 
128  U.  S.  525,  32  L.  ed.  529;  Hut- 
chinson, Pierce  &  Co.  v.  Loewy,  217 
U.  S.  457,  54  L.  ed.  838;   Bernstein 


v.  Danwitz,  190  Fed.  604;  Allen  B. 
Wrisley  Co.  v.  George  E.  Rouse  S. 
Co.,  C.  C.  A.,  90  Fed.  5,  dismissing 
appeal  87  Fed.  589;  Warner  v. 
Searle  &  Hereth  Co.,  191  U.  S.  195, 
48  L.  ed.  145.  See  §§  148,  149,  279, 
infra. 

2  Bernstein   v.   Danwitz,   190   Fed. 
604. 

3  Edison  v.  Thomas  A.  Edison,  Jr., 
Chemical  Co.,  12S  Fed.   1013. 

4  Burt  v.  Smith,  C.  C.  A.,  71  Fed. 


§  31] 


LAND  AND  MINING  CASES. 


87 


§  31.  Land  and  mining  cases.  Where  the  plaintiff's  plead- 
ings show  that  the  decision  of  the  case  depends  upon  the  con- 
struction of  the  land  or  mining  laws,  the  suit  arises  under  the 
laws  of  the  United  States ;  and  if  the  matter  in  dispute  exceeds 
the  jurisdictional  amount,  a  District  Court  of  the  United  States 
may  take  jurisdiction  of  the  same,  either  originally,1  or  upon 
removal.2  It  seems :  that  this  is  always  the  case  where  the  com- 
plaint shows  that  the  validity  of  a  land  or  mining  patent  is  in 
dispute.3  An  action  of  ejectment,4  or  of  trespass,5  or  a  bill  to 
quiet  title,6  where  the  plaintiff  rests  his  title  upon  a  land  or  min- 
ing patent  of  the  United  States,  the  validity  of  which  defendant 
does  not  dispute;  does  not  so  arise.  Nor  does  a  suit  to  set  aside 
a  land  patent  solely  on  account  of  fraud ; 7  nor  a  suit  by  a  home- 


]6]  ;  Allen  B.  Wrisley  Co.  v.  George 
E.  Rouse  Soap  Co.,  90  Fed.  5,  32 
C.  C.  A.  496;  dismissing  appeal  87 
Fed.  5S9;  Illinois  Watch  Co.  v.  El- 
gin Nat.  W.  Co.,  C.  C.  A.,  94  Fed. 
667;  s.  c,  179  U.  S.  665.  677,  45 
L.  ed.  365,  382;  A.  Leschen  &  Sons 
Rope  Co.  v.  Broderick  &  Bascom 
Rope  Co.,  134  Fed.  571,  67  C.  C.  A. 
41S. 

§  31.  l  Florida  Cent.  &  P.  R. 
Co.  v.  Bell,  176  U.  S.  321,  44  L.  ed. 
486;  Northern  Pae.  Ry.  Co.  v.  So- 
derberg,  188  U.  S.  526,  47  L.  ed. 
575:  affirming  104  Fed.  425,  43  C. 
C.  A.  620;  Cheesman  v.  Shreve,  37 
Fed.  36;  Jones  v.  Florida  C.  &  P. 
R.  Co.,  41  Fed.  70;  Pierce  v.  Molli- 
ken,  78  Fed.  196;  Evans  v.  Durango 
Land  &  Coal  Co.,  80  Fed.  433,  25 
C.  C.  A.  531;  Gillis  v.  Downey,  C. 
C.  A.,  85  Fed.  483;  Florida  C.  &  P. 
R.  Co.  v.  Bell,  C.  C.  A.,  87  Fed.  369; 
Linkswiler  v.  Schneider,  95  Fed. 
203;  Nevada  Sierra  Oil  Co.  v.  Mil- 
ler, 97  Fed.  681;  Wallula  Pac.  Ry. 
Co.  v.  Portland  &  S.  Ry.  Co.,  154 
Fed.  902. 

2  Mitchell  v.  Smale,  140  U.  S.  406, 
35  L.  ed.  442:  Spokane  Falls  &  No. 
Ry.  Co.  v.  Ziegler,  167  U.  S.  65,  42 
L.    ed.    79;    Miller    v.    YVattier,    24 


Fed.  49;  Dunton  v.  Muth,  45  Fed. 
390;  Walker  v.  Richards,  55  Fed. 
129;  Southern  Pa*.  R.  Co.  v.  Town- 
send,  62  Fed.  161 ;  McCune  v.  Es- 
sig,  C.  C.  A.,  122  Fed.  588;  affirming 
118  Fed.  273. 

3  Mitchell  v.  Smale,  140  U.  S.  406, 
35  L.  ed.  442;  Florida  Cent.  &  P. 
R.  R.  Co.  v.  Bell,  176  U.  S.  321,  44 
L.  ed.  486;  Pierce  v.  Molliken,  78 
Fed.  196;  McCune  v.  Essig,  C.  C. 
A.,  122  Fed.  588;  affirming  118  Fed. 
273. 

*Bonin  v.  Gulf  Company,  198  U. 
S.  115.  49  L.  ed.  970:  Los  Angeles 
Farming  &  Milling  Co.  v.  Hoff,  48 
Fed.  340;  Washington  v.  Island 
Lime  Co.,  117  Fed.  777. 

5  In  re  Helena  &  L.  Smelting  & 
Reduction  Co..  48  Fed.  609:  Argo- 
naut Min.  Co.  v.  Kennedy  Mining 
&  Milling  Co.,  84  Fed.  1  ;  Peabody 
Gold-Min.  Co.  v.  Gold  Hill  Min.  Co., 
97  Fed.  657. 

6  Hoadley  v.  City  and  County  of 
San  Francisco,  94  U.  S.  4,  24  L. 
ed.  34. 

7  Holland  v.  Hyde,  41  Fed.  897. 
Contra,  where  the  bill  also  alleged 
that  the  patent  had  been  issued 
without  a  compliance  with  tlie  stat- 
ute as  to  notice  or  proofs,  and  with- 


88  OKIGINAL    JURISDICTION.  [§    31 

fctead  entryman  to  secure  his  protection,  while  making  the  im- 
provements required  by  the  acts  of  Congress,  from  interference 
by  parties  who  claim  the  land  under  the  Town  Site  Act,  but 
whose  claims  have  been  rejected  by  the  Secretary  of  the  Inte- 
terior ;  8  nor  a  suit  by  any  entryman  to  protect  his  improvements 
and  claim  from  waste  and  trespass  by  a  defendant,  who  claims 
do  right  under  a  statute  of  the  United  States.9  Nor  a  suit  in 
support  of  an  adverse  claim  to  land  or  mining  patent  under 
U.  S.  R.  S.  §  2326 ;  unless  its  decision  turns  upon  a  disputed 
construction  of  the  Federal  Constitution,  a  treaty,  or  a  Federal 
statute.10  Where  prior  decisions  have  so  defeated  the  rights  of 
The  parties  that  they  are  removed  from  controversy,  it  cannot  be 
said  that  the  construction  of  the  statute  is  disputed.11  The  ques- 
tions of  fact:  as  to  what  is  a  "vein,"  "lode,"  or  ''ledge,"  and  as  to 
what  is  the  top  or  apex  of  a  vein  or  lode  within  the  meaning  of 
Sections  2320,  2322  and  2325  of  the  Revised  Statutes  of  the 
United  States ;  K  and  as  to  what  are  the  boundaries  mentioned 
in  a  mining  patent  or  land  grant ;  13  or  the  boundaries  of  a  State 
as  prescribed  by  the  act  of  Congress  admitting  it  to  the  Union, 
when  the  construction  of  the  statute  is  not  in  question,14  or,  it 

out    authority    at    law.      Cates    v.  Co.  v.  Turck,   150  U.  S.  138.  37  L. 

Producers'    &    Consumers'    Oil    Co.,  ed.    1030;     Blackburn    v.    Portland 

96  Fed.  7.  Gold  Min.  Co.,  175  U.  S.  571,  585,  44 

8  Blackburn  v.  Portland  G.M.  Co.,  L.  ed.  276,  282;  Blue  Bird  Min.  Co. 
175  U.  S.  571,  44  L.  ed.  276;  Sbo-  v.  Largey,  49  Fed.  289;  Montana 
shone  M.  Co.  v.  Rutter,  177  U.  S.  Ore-Purchasing  Co.  v.  Boston  &  M. 
505,  44  L.  ed.  864;  Butler  v.  Shafer,  C.  C.  &  S.  Min.  Co.,  C.  C.  A.,  85 
67    Fed.    161;    King   v.   Lawson,    84  Fed.  867. 

Fed.  209.     But  see  Jones  v.  Florida,  12  Colorado   Central   Consol.   Min. 

C.  &  P.  R.  Co.,  41  Fed.  70.  Co.  v.  Turck,  150  U.  S.  138,  37   L. 

9  Blackburn  v.  Portland  G.  M.  ed.  1030;  Blackburn  v.  Portland 
Co.,  175  U.  S.  571,  44  L.  ed.  276;  Gold  Min.  Co.,  175  U.  S.  571,  5S5, 
Shoshone  M.  Co.  v.  Rutter,  177  U.  44  L.  ed.  276,  282;  Blue  Bird  Min. 
S.  505,  44  L.  ed.  864;  Larned  v.  Co.  v.  Largey,  49  Fed.  289. 
Jenkins,  109  Fed.  100,  48  C.  C.  A.  13  Robinson  v.  Anderson,  121  U. 
252.  These  cases  overruled  a  nura-  S.  522;  Los  Angeles  Farming  & 
ber  of  previous  decisions  of  the  Cir-  Milling  Co.  v.  Hoff,  48  Fed.  340; 
cuit  Courts  to  the  contrary.  Joy    v.    St.    Louis,    122    Fed.    524. 

lOMcGilvra  v.  Ross,  215  U.  S.  70,  Contra,   Green   v.   Valley,    101    Fed. 

54  L.  ed.  95.     See  Columbia  Valley  S82. 

R.  Co.  v.  Portland  &  S.  Ry.  Co.,  C.  14  Joy  v.  St.  Louis,  201  U.  S.  332, 

C.  A.,  162  Fed.  603,  where  the  con-  50   L.   ed.    776.      But   see   Moore   v. 

struction  of  a  statute  was  involved  McGuire,   205   U.   S.   214,   51   L.  ed. 

11  Colorado   Central    Consol.    Min.  776. 


32] 


SUITS    UNDEK    WATER    LAWS. 


89 


has  been  held,  as  to  the  priority  of  the  location ; 15  do  not  involve 
Federal  questions.  Questions  as  to  what  are  the  rights  recog- 
nized by  the  local  laws,  rules,  regulations,  customs  and  deci- 
sions, which  the  statutes  of  the  United  States  direct  shall  be 
enforced,  do  not,  it  has  been  held,  arise  under  the  Constitution 
and  laws  of  the  United  States.16  An  allegation  in  a  declaration 
of  ejectment,  that  the  plaintiff  was  ousted  in  violation  of  a  spe- 
cified treaty  and  of  the  Fifth  Amendment  to  the  Feder-al  Con- 
stitution, is  insufficient  to  support  the  jurisdiction.17  Where  the 
complaint  charged  a  continuing  trespass,  demanding  a  lump 
sum  as  damages,  the  plaintiff  claiming  under  a  series  of  titles 
to' the  same  land,  the  adjudication  of  one  of  which  alone  involved 
a  Federal  question,  it  was  held,  that  the  whole  case  might  be 
removed.18  It  has  been  said :  that  where  the  complaint  shows 
that  the  controversy  arises  under  the  land  laws  of  the  United 
States,  a  court  of  equity  may  entertain  and  determine  all  in- 
cidental questions  between  the  respective  parties  arising  out  of 
their  conflicting  claims  and  may  grant  an  injunction  and  ap- 
point a  receiver.19 

§  32.  Cases  arising  under  the  laws  relating  to  navigable 
waters.  It  has  been  held:  that  cases  arise  under  the  Con- 
stitution and  laws  of  the  United  States,  where  the  plaintiff  by 
his  complaint  asserts  a  right  under  the  Federal  Constitution 
and  certain  acts  of  Congress,  to  maintain  a  dock  on  a  navigable 
stream;1  where  a  suit  is  brought  to  enjoin  an  obstruction  upon 
a  navigable  stream,  such  as  a  bridge,2  or  a  log  boom,3  and  the 


15  Wise  v.  Nixon.  76  Fed.  3; 
Dewey  Min.  Co.  v.  Miller,  96  Fed. 
1;  Peabody  Gold  Min.  Co.  v  Gold 
Hill  Min.  Co.,  97  Fed.  657.  Contra, 
Nevada  Sierra  Oil  Co.  v.  Miller,  97 
Fed.  681. 

l6Trafton  v.  Nougues,  Fed.  Cas. 
No.  14,134  (4  Sawyer,  178)  ;  Tellu- 
ride  Power-Transmission  Co.  v.  Rio 
Grande  W.  Ry.  Co.,  175  U.  S.  639, 
44  L.  ed.  305;  dismissing  appeal  51 
Pac.  146,  16  Utah,  125. 

l7Filhiol  v.  Maurice,  185  U.  S. 
108,  46  L.  ed.  827. 

18  Evans  v.  Durango  Land  &  Coal 
Co.,  80  Fed.  433,  25  C.  C.  A.  531. 


19  Nevada  Sierra  Oil  Co.  v.  Mil- 
ler, 97  Fed.  681. 

§  32.  l  Cummings  v.  Chicago, 
188  U.  S.  410,  47  L.  ed.  525;  Calu- 
met (4rain  &  Elevator  Co.  v.  Chica- 
go, 188  U.  S.  431,  47  L.  ed.  532; 
Kenyon  v.  Squire,  1  Wash..  st.  9, 
24  Pac.  28. 

2  New  Orleans  M.  &  T.  R.  Co.  v. 
Mississippi,  102  U.  S.  135,  20  L.  ed. 
96 ;  E.  A.  Chatfield  Co.  v.  New  Hav- 
en, 110  Fed.  788. 

3  r.  S.  v.  Bellingham  Bay  Boom 
Co.,  176  U.  S.  211,  44  L.  ed.  437; 
reversing  81  Fed.  658,  26  C.  C.  A. 
547. 


90 


ORIGINAL    JURISDICTION. 


[§  33 


plaintiff  claims  that  the  same  is  forbidden  by  an  act  of  Con- 
gress,4 or  by  a  Federal  official  acting  under  lawful  authority,5 
or  where  the  court  takes  judicial  notice  of  an  act  of  Congress 
under  which  the  defendant  contends  that  the  obstruction  is  au- 
thorized ; 6  where  the  plaintiff  claims  the  right  to  accretions 
along  a  river  front  under  letters  patent  of  the  United  States, 
issued  in  pursuance  of  an  act  of  Congress  and  the  construction 
of  the  act  under  which  the  patent  was  issued  is  in  question ; 7 
but  that  the  defendants  cannot  obtain  a  writ  of  error  to  review 
a  judgment  of  a  State  court  granting  an  injunction  against 
their  interference  with  the  plaintiff's  possession  of  lands  claimed 
in  the  complaint  under  an  act  of  Congress,  when  the  defense 
is  that  they  had  acquired  by  priority  of  possession  rights  to 
the  use  of  the  water  which  have  vested  and  accrued,  are  recog- 
nized and  acknowledged  by  the  local  customs,  laws  and  decisions 
as  provided  in  §  2339  of  the  Revised  Statutes  of  the  United 
States.8 

§  33.  Suits  on  judicial  and  official  bonds.  Actions  upon 
bonds  required  by  the  orders  of  the  Federal  courts,  such  as 
supersedeas  bonds,1  injunction  bonds,2  or  bonds  in  support  of 
attachments  by  the  Federal  courts,3  receivers'  bonds,4  and  suits 
upon  the  bonds  of  deputy  collectors,5  United  States  marshals,6 


*U.  S.  v.  Bellingham  Bay  Boom 
Co.,  176  U.  S.  211,  44  L.  ed.  437; 
reversing  81  Fed.  658.  26  C.  C.  A. 
">47:  where  the  statute  permitted 
such  a  suit,  when  the  obstruction 
was  not  affirmatively  authorized  by 
law.  whether  State  or  Federal, 
and  the  only  question  for  considera- 
tion was  whether  the  obstruction 
was  authorized  by  a   State   statute. 

6  E.  A.  Chatfield  Co.  v.  New  Ha- 
ven.   110   Fed.   788. 

6  New  Orleans.  M.  &  T.  R.  Co.  v. 
Mississippi.  102  U.  S.  135,  26  L. 
ed.  06. 

7  King  v.  St.  Louis,  08  Fed.   641. 

8  Telluride  Power-Transmission 
Co.  v.  Rio  Grande  W.  Ry.  Co..  175 
l'.  S.  630,  44  L.  ed.  305:  dismissing 
appeal   51    Pac.   146,   16   Utah.    125; 


In  re  Helena  &  L.  Smelting  &  Reduc- 
tion Co..  48  Fed.  600. 

§  33.  1  Crane  v.  Buckley,  105 
Fed.  401. 

2  Lamb  v.  Ewing.  C.  C.  A.,  54 
Fed.  269;  Leslie  v.  Brown,  90  Fed. 
171,  32  C.  C.  A.  556. 

3  Files  v.  Davis.  118  Fed.  465. 

4  United  States  v.  Douglas.  113 
N.  C.  100,  18  S.  E.  202. 

5  Crawford  v.  Johnson,  Fed.  Cas. 
Xo.  3,369  (Deady,  457);  Orner  v. 
Saunders,  Fed.  Cas.  Xo.  10,584  (3 
Dill.  284). 

6  Feibelman  v.  Packard.  109  U. 
S.  421.  27  L.  ed.  984:  Bachrack  v. 
Norton,  132  U.  S.  337.  33  L.  ed.  377; 
Lawrence  v.  Xorton,  13  Fed.  1,  4 
Woods.  383;  McKee  v.  Brooks.  64 
Tex.  255.  Contra,  Phillips  v.  Edel- 
stein,    (Texas).  2  Willson,  Civ.  Cas. 


34] 


FEDERAL  OFFICERS. 


91 


cashiers  of  national  banks,7  clerks  of  Federal  courts,8  and  other 
Federal  officers,9  arise  under  the  laws  of  the  United  States. 
Suits  by  material  men  upon  the  bonds  of  contractors  with  the 
Federal  government  arise  under  the  Constitution  and  laws 
of  the  United  States.10  A  suit  on  the  bond  of  a  clerk  of  a  court 
of  the  United  States  which  depends  upon  the  scope  and  effect 
of  the  bond  and  the  meaning  of  the  statutes  in  conformity  with 
which  it  was  given,  is  a  suit  arising  under  the  laws  of  the  Unit- 
ed States,  of  which  a  District  Court  has  original  jurisdiction 
without  diversity  of  citizenship.11  A  District  Court  of  the 
United  States  has  jurisdiction  of  a  suit  brought  by  a  trustee  in 
bankruptcy,  to  enforce  the  bond  of  his  predecessor.12 

§  34.  Suits  by  and  against  officers  of  the  United  States. 
Suits  brought  by  officers  of  the  United  States  in  the  exercise  of 
their  official  functions  arise  under  the  laws  of  the  United  States 
and  are  removable.1  It  was  held:  that  an  action  by  a  United 
States  marshal  against  his  deputy,  to  recover  according  to  con- 
tract a  part  of  fees  collected,  is  not  removable.2  Suits  against 
officers  of  the  United  States  for  acts  done  by  virtue,  or  under 
color,  of  their  office,  arise  under  the  laws  of  the  United  States 
and  may  be  removed.3     Thus,  a  suit  against  a  marshal  of  the 


Ct.  App.  §  449;  where  the  suit  was 
brought  for  the  wrongful  seizure  of 
property  under  a  writ  of  attach- 
ment. 

7  Walker  v.  Windsor  Xat.  Bank, 
C.  C.  A.,  56  Fed.  76. 

8  Howard  v.  U.  S.,  184  U.  S.  676, 
46  L.  ed.  754;  affirming  102  Fed.  77, 
42  C.  C.  A.  169. 

».U.  S.  v.  Belknap,  73  Fed.  19; 
an  Indian  agent. 

io  u.  S.  Fidelity  &  Guaranty  Co. 
v.  F.  S.,  204  U.  S.  349,  51  L.  ed.  516; 
U.  S.  v.  Churchyard.  132  Fed.  82; 
U.  S.  ex  rel.  Giant  Powder  Co.  v. 
Axman,  152  Fed.  816.  Contra,  U. 
S.  v.  Henderlong,  102  Fed.  2;  U.  S. 
v.  Sheridan,  119  Fed.  236;  U.  S.  v. 
O'Brien,  120  Fed.  446,  448;  U.  S.  v. 
Barrett,  135  Fed.  189;  Burrell  v. 
U.  S.,  C.  C.  A.,  147   Fed.  44.  46. 

ii  Howard  v.  U.  S.,  184  U.  S.  676, 


46  L.  ed.  754:  affirming  102  Fed.  77, 
42  C.  C.  A.  169. 

12  U.  S.  ex  rel.  Schauffler  v.  Union 
Surety  &  Guaranty  Co.,  118  Fed. 
482. 

§  34.  1  Johnson  v.  Rankin  (Tex- 
as). 95  S.  W.  665. 

2Setzer  v.  Douglass.  91  X.  C. 
426;  Hildebrand  v.  Douglass,  91 
N.  C.  430. 

3  Cleveland,  C.  C.  &  I.  R.  Co.  v. 
McClung,  119  U.  S.  454.  30  L.  ed. 
465:  affirming  15  Fed.  905;  Bock  v. 
Perkins.  139  U.  S.  628,  35  L.  ed. 
314;  Sonnentheil  v.  Christian  Moer- 
lein  Brewing  Co.,  172  U.  S.  401,  43 
L.  ed.  492;  Auten  v.  U.  S.  Nat. 
Bank.  174  U.  S.  125.  141.  43  L.  ed. 
920.  926;  Van  Zandt  v.  Maxwell, 
Fed.  Cas.  No.  16,884  (2  Blatchf. 
421  I  ;  Warner  v.  Fowler.  Fed.  Cas. 
No.   17,182    (4   Blatchf.  311) :    Ellis 


92 


ORIGINAL    JURISDICTION. 


[§    34 


United  States  for  an  abuse  of  Federal  process  against  the  de- 
fendant to  the  writ,4  or  for  levying  under  a  writ  upon  property 
claimed  by  a  stranger  to  the  suit,  but  which  the  marshal  claims 
belongs  to  the  defendant  to  the  writ,5  arises  under  the  laws  of 
the  United  States,  and  is  removable ;  at  least  when  the  plaintiff's 
initial  pleading  shows  that  the  defendant's  acts,  of  which  com- 
plaint is  made,  were  done  in  his  official  capacity.6  Where  this 
did  not  appear  in  the  plaintiff's  pleading,  it  was  held,  that  the 
action  was  not  removable.7  But  a  suit  against  a  marshal  for  a 
levy  upon  goods  which  he  does  not  claim  to  be  the  property  of 
the  person  named  in  the  writ,  is  not  removable.8  It  was  held : 
that  an  action  by  a  deputy  marshal  against  his  principal,  for 
fees  due  him,  is  not  removable.9  The  fact  that  a  private  indi- 
vidual is  made  a  co-defendant  with  the  marshal  in  the  suit  does 
not  divest  the  court  of  jurisdiction.10  It  was  held,  that  an  action 
against  private  individuals,  for  wrongfully  causing  a  United 
States  marshal  to  levy  execution  on  plaintiff's  chattels,  is  a  case 
arising  under  the  laws  of  the  United  States  and  may  be  re- 
moved.11 Suits  against  receivers  of  national  banks  and  receivers 
appointed  by  the  Federal  courts  are  considered  in  the  following 
sections.  An  action  by  or  against  the  agent  of  the  shareholders 
appointed  to  take  charge  of  the  assets  of  a  national  bank,  arises 
under  the  laws  of  the  United  States.12 


v.  Norton,  ]6  Fed.  4,  4  Woods,  399; 
Front  St.  Cable  Ry.  Co.  v.  Drake,  65 
Fed.  539;  Drake  v.  Paulhamus,  C.  C. 
A.,  GG  Fed.  SO.! ;  Wood  v.  Drake,  70 
Fed.  8S1;  Galatin  v.  Sherman.  77 
Fed.  337;  Eighmy  v.  Poucher,  83 
Fed.  855;  Woods  v.  Root,  C.  C.  A., 
123  Fed.  402. 

4  Front  St.  Cable  Ry.  Co.  v. 
Drake,  G5  Fed.  539;  Wood  v. 
Drake,  70  Fed.  881. 

5  Bock  v.  Perkins,  139  U.  S.  628, 
35  L.  ed.  314;  affirming  28  Fed.  123; 
Sonnentlieil  v.  Christian  Moerlein 
Brewing  Co..  172  U.  S.  401.  43  L.  ed. 
492;  Ellis  v.  Norton,  16  Fed.  4,  4 
Woods,  399 ;  Drake  v.  Paulhamus, 
C.  C.  A.,  66  Fed.  895. 

6  Walker  v.  Coleman.  55  Kan.  381, 
40  Pac.   640,   49   Am.   St.   Rep.  254. 


Contra,  Ellis  v.  Norton,  16  Fed.  4, 
4   Woods,   399,   Wood   v.   Drake,   70 
Fed.    881  ;    Howard    v.    Stewart,    34 
Neb.  765,  52  N.  W.  '714. 
7  Rothschild  v.  Matthews,  22  Fed.  6. 

8  Buck  v.  Colbath,  3  Wall.  334,  18 
L.  ed.  257 :  Kelsey  v.  Dallon,  Fed. 
Cas.  No.  7,678;  McKee  v.  Coffin,  66 
Tex.  304,  1   S.  W.  276. 

9  Upham  v.  Scoville.  40  Ark.  170. 

10  Sonnentheil  v.  Christian  Moer- 
lein Brewing  Co.,  172  U.  S.  401.  43 
L.  ed.  492 ;  But  see  Wardens,  etc.  of 
St.  Luke's  Church  v.  Sowles,  51  Fed. 
609 ;  Frank  v.  Leopold  &  Feron  Co., 
169  Fed.  922;  infra,  §  35,  supra, 
§  24,  note  54. 

11  Hurst  v.  Cobb.  61  Fed.  1. 

12  Barron  v.  McKinnon,  179  Fed. 
759. 


§   36] 


FEDERAL    RECEIVERS. 


93 


§  35.  Suits  by  and  against  receivers  of  national  banks. 
A  suit  by  the  receiver  of  a  national  bank,  appointed  by  the 
Comptroller  of  the  Currency,  arises  under  the  laws  of  the  Unit- 
ed States,  and  may  be  removed  by  the  defendant  when  it  in- 
volves the  jurisdictional  amount.1  A  suit  against  a  receiver  of 
p  national  bank,  similarly  appointed,  arises  under  the  laws  of 
the  United  States  and  may  be  removed ; 2  but  not  unless  the 
matter  in  dispute  exceeds  the  statutory  limit ;  3  nor,  it  has  been 
said,  when  the  receiver  is  not  a  necessary,  although  he  is  a 
proper,  party  to  the  action.4  The  receiver  of  a  national  bank 
cannot  intervene  and  remove  a  suit  instituted  against  the  bank 
before  his  appointment,  unless  the  bank  might  have  removed 
the  case.5  A  bill  against  such  a  receiver  of  a  national  bank  and 
an  executor  to  recover  a  legacy,  where  some  of  the  decedent's 
assets  were  deposited  in  the  bank,  was  dismissed  as  not  arising 
under  the  laws  of  the  United  States.6 

§  36.  Suits  by  and  against  receivers  of  Federal  corpora- 
tions. Where  either  party  to  a  suit  is  a  receiver  of  a  corporation 
created  by  an  act  of  Congress,  the  suit  arises  under  the  laws  of 
the  United*  States.1    It  has  been  held :  that  the  same  rule  applies 


§  35.  l  Johnson  v.  Rankin  (Tex- 
as), 95  S.  W.  (365.  See  Armstrong 
v.  Ettlesohn,  30  Fed.  209;  Arm- 
strong v.  Trautman,  30  Fed.  275; 
McConville  v.  Gilmour,  1  L.R.A. 
498,  36  Fed.  277;  Stephens  v.  Ber- 
nays,  44  Fed.  642;  Yardley  v.  Dick- 
son, 47  Fed.  835;  Fisher  v.  Yoder, 
53  Fed.  565;  Short  v.  Hepburn,  75 
Fed.  113,  21  C.  C.  A.  252;  Thompson 
v.  German  Ins.  Co.,  76  Fed.  892; 
McCartney  v.  Earle,  C.  C.  A.,  115 
Fed.  402. 

2  Hot  Springs  Independent 
School  Dist.  Xo.  10  of  Fall  River 
County  v.  First  Nat.  Bank,  61  Fed. 
417;  Auburn  Sav.  Bank  v.  Hayes, 
61  Fed.  911:  Gilbert  v.  McNulta, 
96  Fed.  83.  See  Merrill  v.  Nat. 
Bank  cf  Jacksonville,  J  73  U.  S. 
131,  43  L.  ed.  640;  Auten  v.  U.  S. 
Nat  Bank,  174  U.  S.  125,  43  L.  ed. 
920;  Witters  v.  Sowies,  42  Fed.  701  ; 


Bartley  v.  Hayden,  74  Fed.  913;  Mc- 
Donald v.  State  of  Nebraska,  101 
Fed.  171,  41  C.  C.  A.  278.  Contra, 
Bird  v.  Cockrem,  Fed.  Cas.  No.  1,~ 
429  (2  Woods,  32)  ;  Tehan  v.  First 
Nat.  Bank,  39  Fed.  577. 

SFollett  v.  Tillinghast,  82  Fed. 
241. 

4  Speckert  v.  German  Nat.  Bank, 
98  Fed.  151,  38  C.  C.  A.  682. 

5  Wicbita  Nat.  Bank  v.  Smith, 
72  Fed.  568,  19  C.  C.  A.  42,  36  IL. 
S.  App.  530 ;  writ  of  error  dismissed. 
Smith  v.  Wicbita  Nat.  Bank,  42 
L.  ed.  1214;  Speckert  v.  German 
Nat.  Bank,  C.  C.  A.,  98  Fed.  151; 
reversing  85  Fed.  12. 

6  Wardens,  etc.,  St.  Luke's. 
Church  v.  Sowies,  51  Fed.  609.. 
But  see  supra,  §  34. 

§  30.  l  Texas  &  Pac.  Ry.  Co.  v. 
Cox,  145  U.  S.  593,   36  L.   ed.   829. 


94  OKIGINAL    JURISDICTION.  [§    37 

to  receivers,  appointed  by  the  Comptroller  of  the  Currency,  of 
the  assets  of  banking  or  trust  companies  organized  under  the 
laws  of  any  of  the  United  States,  which  have  an  office  or  bank- 
ing house  for  the  receipt  of  deposits  or  savings  within  the  Dis- 
trict of  Columbia.2 

§  37.  Suits  by  and  against  receivers  of  Federal  courts. 
A  suit  by  a  receiver  appointed  by  a  Federal  court,  which  is 
brought  to  enforce  a  cause  of  action  vested  before  his  appoint- 
ment in  the  corporation  which  he  represents,  does  not  ordinarily 
arise  under  the  laws  of  the  United  States ;  and  consequently,  it 
cannot  be  removed  where  the  requisite  difference  of  citizenship 
does  not  exist.1  Such  a  suit  may,  however,  be  begun  in  a  Circuit 
Court  of  the  United  States  originally,  because  it  is  ancillary  to 
that  in  which  the  receiver  was  appointed. 

Where,  however,  the  validity  of  the  order  or  decree  of  a  Fed- 
eral court  appointing  a  receiver,  or  the  construction  of  such  an 
order  or  decree,  is  in  question,  the  suit  arises  under  the  laws  of 
the  United  States,  whether  the  receiver  is  a  plaintiff,3  or  defend- 
ant.4 Otherwise  it  seems  that  it  does  not.5  It  has  been  held : 
that  the  court  will  take  judicial  notice  of  the  fact  that  a  defend- 

2  Lyons  v.  Bank  of  Discount,  154  Fed.  764;  for  an  injunction;  Shin- 
Fed.  391.     See  34  St.  at  L.  458.  ney    v.    North    Am.    Savings,    L.    & 

§  37.  iPope  v.  Louisville,  N.  A.  Bldg.  Co.,  97  Fed.  9;  to  determine 
&  C.  Ry.  Co..  173  U.  S.  573,  43  L.  the  right  to  assets  claimed  by  a  re- 
ed. 814;  Pepper  v.  Rogers,  128  Fed.  ceiver;  State  v.  Frost,  113  Wis.  623, 
t;87.  89  N.  W.  915;  for  an  injunction. 

2  White  v.  Ewing,  159  U.  S.  36,  5  So  held  of  actions  against  re- 
40  L.  ed.  67 ;  Pope  v.  Louisville,  N.  ceivers  to  recover  damages  for  their 
A.  &  C.  Ry.  Co.,  173  U.  S.  573,  43  L.  negligence  or  that  of  their  employ- 
ed. 814;  Bowman  v.  Harris,  95  Fed.  ees.  Bailsman  v.  Dixon,  173  U.  S. 
917;  Connor  v.  Alligator  L.  Co.,  98  113,  43  L.  ed.  633;  Pope  v.  Louis- 
Fed.  155;  Alexander  v.  So.  Hom^  ville.  N.  A.  &  C.  Ry.  Co.,  173  U.  S. 
Bldg.  &  L.  Ass'n,  120  Fed.  963;  573,  579,  43  L.  ed.  814,  817;  Ga- 
Hampton  Roads  Ry.  &  El.  Co.  v.  bleman  v.  P.,  D.  &  E.  Ry.  Co.,  179 
Newport  News  &  6.  P.  Ry.  &  El.  U.  S.  335,  45  L.  ed.  220.  (These 
Co.,  131  Fed.  534;  Gunby  v.  Arm-  cases  overruled  a  number  of  de- 
strong,  C.  C.  A.,  133  Fed.  417.  So  cisions  of  the  lower  courts  to  the 
when  he  is  an  ancillary  receiver.  contrary.)  Ray  v.  Peirce,  81  Fed. 
Brookfield  v.  Heckor.   US   Fed.  942.  881;   Pitkin  v.  Cowen,  91  Fed.  599; 

3  Pope  v.  Louisville,  N.  A.  &  C.  Gableman  v.  Peoria,  D.  &  E.  Ry.  Co., 
Ry.  Co.,  173  U.  S.  573.  581,  43  L.  ed.  101  Fed.  1,  41  C.  C.  A.  160;  Echols 
g14i  gig.  v.  Smith   (Kentucky),  42  S.  VV.  538. 

4  Board    of    Com'rs    v.    Peirce,    90  For    damage    caused    through    his 


§    39]  FEDERAL   LITIGATION.  95 

ant  is  a  receiver;  although  there  is  no  allegation  to  that  effect  in 
the  plaintiff's  pleading;  6  and  that  the  joinder  of  other  defend- 
ants with  a  receiver  will  not  deprive  him  of  a  right  of  removal 
to  which  he  would  have  been  entitled  had  he  been  sued  alone.' 

§  38.  Suits  by  and  against  trustees  in  bankruptcy. 
The  bankruptcy  law  provides:  that  "the  Circuit  Courts  of  the 
United  States  shall  have  jurisdiction  of  all  controversies  at  law 
and  in  equity,  as  distinguished  from  proceedings  in  bankruptcy, 
between  trustees  as  such  and  adverse  claimants  concerning  the 
property  acquired  or  claimed  by  the  trustees,  in  the  same  man- 
ner and  to  the  same  extent  only  as  though  bankruptcy  proceed- 
ings had  not  been  instituted  and  such  controversies  had  been  be- 
tween the  bankrupts  and  such  adverse  claimants."1  It  has  been 
held :  that  in  a  suit  between  the  trustees  of  a  bankrupt  and  an- 
other, when  the  requisite  difference  of  citizenship  exists  between 
the  bankrupt  and  such  other  party,  and  the  matter  in  dispute 
exceeds  the  jurisdictional  amount;  the  suit  may  be  removed  by 
the  defendant,  whether  the  suit  is  brought  by,2  or  against,  the 
trustee.3  The  effect  of  the  new  Judicial  Code  upon  this  section 
of  the  Bankruptcy  Law  has  not  yet  been  decided. 

§  39.  Suits  arising  out  of  litigation  in  the  Federal  courts. 
It  has  been  held:  that  the  following  cases,  arising  out  of  litiga- 
tion in  the  Federal  court  arise  under  the  Constitution  and  laws 
of  the  United  States,  and  may  be  removed  when  the  matter  in 
dispute  exceeds  the  jurisdictional  amount:   a  suit  where  the 

malicious  conduct  in  carrying  on  the  pointed.     People   v.   Bleecker   St.  & 

business  of  the  receivership.     Rural  F.  F.  R.  Co.,  178  Fed.  156.     See,  al- 

Home  Telephone  Co.  v.  Powers,  176  so,    Dale    v.    Smith,    182    Fed.    300; 

Fed.   080.      For   the   cancellation   of  Vanderbilt  v.  Kerr.  188  Fed.  537. 

notes  and  bonds  which  the  plaintiff  6  Pitkin    v.    Cowen,    91    Fed.    599. 

had  executed  to  the  receivers  under  7  Landers  v.   Felton,  73  Fed.   311. 

duress    and    fraud    and    for    an    in-  Contra.    Shearing    v.    Trumbull,    75 

junction  against  the  negotiation  of  Fed.  33;   Marrs  v.  Felton,   102  Fed. 

the   same,    praying,    in    the    alterna-  775;    Rupp  v.  Wheeling  &  L.  E.  R. 

tive,  a  recovery  of  damages  and  the  Co.,  121    Fed.  825,  58  C.  C.  A.  101. 

impression  of  a  trust  upon  the  prop-  §  38.     l  30  St.  at  L.  §  23,  p.  552. 

ertv       in       the       receivers'       hands.  2Corhitt     v.     President,     etc.,     of 

Wrishtsville  Hardware  Co.  v.  Hard-  Farmers'    Bank    of    Delaware.     113 

ware  &   Woodenware   Mfg.   Co.,   180  Fed.  417. 

Fed.  580.     And  for  a  vacation  of  the  3  Bush   v.   Elliott,   202  U.  S.  477, 

franchise    of    the    corporation    over  50  L.  ed.  1114. 
whose  property  the  receiver. was  ap- 


96 


ORIGINAL    JURISDICTION. 


[§    39 


plaintiff's  pleading  shows  that  he  contests  the  validity  of  a  writ, 
order,  judgment,  or  decree  of  a  Federal  court; 1  a  suit  for  mali- 
cious prosecution,  or  false  imprisonment,  upon  a  charge  of  a 
violation  of  a  law  of  the  United  States ;  2  and  a  suit  where  there 
is  a  dispute  as  to  how  far  a  State  statute,  concerning  liens 
upon  land,  applies  to  a  judgment  of  a  court  of  the  United 
States.3  It  has  been  held :  that  the  purchaser  at  a  Federal  fore- 
closure sale,  which  had  assumed  as  part  of  the  price  all  liabil- 
ities incurred  by  the  receivers,  was  not  entitled  to  remove  a  suit 
to  enforce  such  liability.4  It  has  been  said:  that  the  construc- 
tion of  orders  and  decrees  of  a  Federal  court,  according  to  their 
true  meaning,  does  not  involve  a  Federal  question.5  It  has  been 
held :  that  the  following  cases  do  not  arise  under  the  laws  of  the 
United  States:  a  suit  upon  a  judgment  recovered  in  a  court  of 
the  United  States;6  a  suit  in  which  either  party  claims  title 
under  a  sale  made  under  the  order,  judgment,  or  decree  of  a 
Federal  court,  when  the  validity  and  construction  of  that  order, 
judgment  or  decree  is  not  in  question;7  a  bill  by  a  discharged 
bankrupt,  to  enjoin  a  levy  under  a  judgment  previous  to  his  dis- 
charge, upon  land  which  the  court  has  set  apart  to  him  as  ex- 
empt under  the  State  homestead  laws ; 8  an  action  by  an  attor- 
ney for  damages  caused  by  his  disbarment  by  a  State  court,  be- 
cause of  language  spoken  in  a  court  of  the  United  States.9     It 


§  39.  1  Connor  v.  Scott,  Fed. 
Gas.  No.  3,119,  4  Dillon,  242;  to 
enforce  a  vendor's  lien,  where 
it  appeared  that  the  defendant 
claimed  the  land  through  the  deed 
of  an  assignee  in  bankruptcy,  the 
validity  of  which  plaintiff  dis- 
puted; First  Nat.  Bank  v.  Society 
for  Savings,  80  Fed.  581,  25  C.  C. 
A.  460;  for  an  injunction  against 
a  tax  levy  ordered  by  the  manda- 
mus of  a  Federal  court.  See  Hou- 
ser  v.  Clayton,  Fed.  Caa.  No.  (5,739 

(3  Woods,  273)  ;  Johnson  v.  New 
Orleans        Nat.        Banking        Ass'n 

(Louisiana),  33  La.  Ann.  479. 

2  Ma-ka-ta-wah-qua-twa  v.  Bebok, 
111  Fed.  12. 

3  Cooke   v.   Avery,    147    U.   S.  375, 


37  L.  ed.  209 ;  Sowles  v.  Witters,  46 
Fed.   497. 

4  Reed  v.  Northern  Pac.  Ry.  Co., 
86  Fed.  817.  But  see  Wabash 
Railroad  Co.  v.  Adelbert  College, 
208  U.  S.  38,  53,  52  L.  ed.  379.  385; 
and  infra,  §  51. 

s  United  States  v.  Douglas,  113 
N.  C.  190.  18  S.  E.  202. 

6  Provident  Savings  Society  v. 
Ford.  114  U.  S.  635,  29  L.  ed.  261; 
Metcalf  v.  Watertown,  128  U.  S. 
586,  32  L.  ed.  543. 

7  Carson  v.  Dunham,  121  U.  S. 
421,  30  L.  ed.  992;  Gay  v.  Lyons, 
Fed.  Cas.  No.  5,281,  3  Woods,  56. 

8  King  v.  Neill.  26  Fed.  721. 
Slireen    v.    Rogers.    56    Fed.    220; 

Green  v.  Elbert,   63   Fed.  308. 


§  40] 


DIFFERENCE  OF  CITIZENSHIP. 


97 


has  been  further  held :  that  a  case  does  not  arise  under  the  laws 
of  the  United  States  simply  because  a  Federal  court  has  decided 
in  another  suit  the  questions  of  law  which  were  involved ; 10  and 
that  an  issue,  whether  full  force  and  effect  had  been  given  to  the 
judgment  of  a  State  court,  does  not  involve  the  construction  of 
the  Constitution  of  the  United  States.11  It  was  held :  that  a  suit 
arises  under  the  laws  of  the  United  States,  when  brought  against 
a  private  person  for  wrongfully  causing  a  marshal  to  levy  a  Fed- 
eral execution  upon  the  plaintiff's  property,  which  the  defend- 
ant claimed  to  belong  to  the  judgment  debtor.12  The  Circuit 
Courts  of  the  United  States  have  also  ancillary  jurisdiction  over 
many  cases  connected  with  litigation  previously  brought  there. 
This  subject  is  considered  later.13 

§  40.  Controversies  between  citizens  of  different  States. 
In  general.  A  controversy  between  citizens  of  different  States 
is  one  in  which  every  party  upon  one  side  is  a  citizen  of  a  differ- 
ent State  from  every  party  upon  the  other.1  The  citizenship  of 
formal  parties,  with  no  real  interest  in  the  controversy,  does  not 
affect  the  jurisdiction.2  In  certain  cases,  the  joinder  of  im- 
proper parties,  plaintiff  or  defendant,  will  not  prevent  a  re- 
moval.3 In  determining  between  whom  the  controversy  exists, 
the  court  is  not  bound  by  the  title  of  the  case  or  the  form  of  the 
proceedings;  but  should  examine  the  record,  ascertain  the  mat- 
ter in  dispute  and  arrange  the  parties  on  opposite  sides  of  the 
same  according  to  the  facts,  no  matter  what  their  technical  place 
as  plaintiffs  or  defendants  may  be.4    A  controversy  exists  when- 


10  Leather  Manufacturers'  Nat. 
Bank  v.  Cooper,  120  U.  S.  77S,  30 
L.  ed.  816;  affirming  order  Cooper 
v.  Leather  Manufacturers'  Nat. 
Bank,  29  Fed.  161;  Berger  v.  Doug- 
les  County  Com'rs,  5  Fed.  23,  2 
McCrary,  483. 

HMerritt  v.  Am.  Steel  Barge  Co., 
C.  C.  A..  75  Fed.  813. 

12  Hurst  v.  Cobb   01  Fed.  1. 

13  Infra,  §  51. 

§  40.  1  Blake  v.  McKini.  103  U. 
S.  336,  26  L.  ed.  563. 

2  Removal    Cases,    100    l".   S.    457, 

25   L.  ed.   503 :    Harney    v.   Latham, 

103  U.  S.  205,  26  L.  ed.  514;  Harter 

v.  Kernocl.an,   103   U.  S.  502,  26   L. 

Fed.  Prac.  Vol.  I.— 7. 


ed.  411;  Maryland  v.  Baldwin,  112 
U.  S.  400.  28  L.  ed.  822;  Wormley 
v.  Wormley,  8  Wheat.  421,  5  L.  ed. 
651 ;  Taylor  v.  Holmes,  14  Fed.  400  ; 
New  Chester  Water  Co.  v.  Holly 
Mfg.  Co.,  C.  C.  A.,  53  Fed.  10,  26; 
infra,  §§  104.  IIS ;  see  Chapter 
on  Removal  of  Causes.  But  see 
Blackburn  v.  Portland  O.  M.  Co., 
175  U.  S.  571,  44  L.  ed.  270;  Pitts- 
burg. C.  &  St.  L.  Ry.  Co.  v.  B.  &  O. 
R.  Co..  C.  C.  A.,  61  Fed.  705.  In- 
fra, §   42. 

3  See     Chapter     on     Removal     of 
Causes,   infra. 

4  Removal    Cases.    100    U.    S.    457, 


98 


ORIGINAL    JURISDICTION. 


[§   40 


ever  there  is  a  justiciable  demand,  although  the  defendant  does 
not  resist  the  relief  sought ;  and  at  least,  in  the  absence  of  fraud, 
even  if  he  has  requested  the  plaintiff  to  institute  the  suit,5 

There  is  no  jurisdiction,  because  of  difference  of  citizenship, 
when  any  one  of  the  necessary,  and  not  formal,  parties  is  a  citi- 
zen of  the  District  of  Columbia,6  or  a  citizen  of  a  Territory ; 7 
even  if  other  parties  to  the  controversy,  on  the  same  side  as  such 
citizen  of  the  district  or  Territory,  are  citizens  of  different 
States  from  that  of  the  plaintiff;8  but  formerly  a  resident  of 
the  District  of  Columbia  might,  in  a  proper  case,  maintain  a 
crossbill  in  a  suit  where  the  jurisdiction  was  founded  upon  there 
being  a  controversy  between  citizens  of  different  States.9 

It  has  been  said  that  a  person  who  changes  his  permanent  resi- 
dence to  a  foreign  country,  although  he  still  remains  a  citizen  of 
the  United  States,  ceases  to  be  a  citizen  of  a  State  who  can  be 
sued  in  a  Federal  court,  where  the  jurisdiction  is  founded  upon 
a  difference  of  citizenship ; 10  but  a  better  statement  of  the  rule 
seemed  to  be  that  she  cannot  then  be  sued  there  upon  that 
ground,  when  served  in  the  State  of  her  former  domicile. 

A  change  of  citizenship  after  the  jurisdiction  has  once  at- 
tached will  not  divest  it,11  even,  it  was  held,  in  case  of  a  change 


408,  25  L.  ed.  593,  597;  Pacific  R. 
Co.  v.  Ketchum,  101  U.  S.  289,  25 
L.  ed.  932;  Barney  v.  Latham,  103 
U.  S.  205,  26  L.  ed.  514;  Carson  v. 
Hyatt,  118  U.  S.  279,  286,  30  L.  ed. 
107.  169;  Blacklock  v.  Small,  127 
U.  S.  96,  32  L.  ed.  70;  Anderson  v. 
Bbwers,  40  Fed.  708:  Brown  v.  Mur- 
ray Nelson  &  Co.,  43  Fed.  014:  Man- 
gels v.  Donau  Br.  Co..  53  Fed.  513; 
Cilley  v.  Fatten.  62  Fed.  498;  Board 
of  Trustees  v.  Blair,  70  Fed.  414; 
infra,  §  43.  But  see  Reavis  v. 
lira  vis.    98    Fed.    145. 

5  Re  Metropolitan  Railway  Re- 
ceivership. 208  F.  S.  90.  52  L.  ed. 
403. 

6  Hepburn  v.  Ellzey,  2  Cranch, 
445.  2  L.  ed.  332;  Wescott  v.  Fair- 
field, Pet.  C.  C.  45;  Barney  v.  Balti- 
more. 1  Hughes,  118;  Cameron  v. 
Hodges,    127    U.    S.   322,    32    L.   ed. 


132;    Hooe   v.   Jamieson,    106   U.   S. 
395,  41  L.  ed.  1049. 

7  New  Orleans  v.  Winter,  1 
Wheaton.  91.  4  L.  ed.  44;  Cameron 
v.  Hodges,  127  U.  S.  322,  32  L.  ed. 
132;  Snead  v.  Sellers,  C.  C.  A..  66 
Fed.  371;  McClelland  v.  McKane, 
154   Fed.   164. 

8  Watson  v.  Bontils,  C.  C.  A.,  116 
Fed.    157. 

9  riman  v.  Iaeger's  Adm'r,  155 
Fed.  1011. 

10  Hammerstein  v.  Lyne,  200  Fed. 
165.  172.     See  infra.  §  46. 

11  Morgan's  Heirs  v.  Morgan,  2 
Wheat.  290.  4  L.  ed.  242;  Mollan  v. 
Torrance.  9  Wheat.  537,  6  L.  ed. 
154:  Clarke  v.  Mathewson.  12  Pet. 
164,  9  L.  ed.  1041:  Anderson  v. 
Watt.  13S  C.  S.  694.  34  L.  ed.  1078; 
Tug  River  Coal  &  Salt  Co.  v.  Brigel, 
C.  C.  A.,  86  Fed.  SIS;   Haracovic  v. 


§   40] 


DIFFERENCE  OF  CITIZENSHIP. 


99 


of  citizenship  made  before  an  amended  bill  was  filed.12  The 
subsequent  consolidation  of  a  foreign  with  a  domestic  corpora- 
tion will  not  defeat  the  jurisdiction.13  When  at  the  time  a  bill 
is  filed  the  court  has  no  jurisdiction,  jurisdiction  cannot  subse- 
quently be  conferred  by  an  amendment  striking-  out  a  party 
plaintiff  who  was  properly  and  necessarily  made  such  at  the  com- 
mencement of  the  suit ; 14  but  in  one  case  the  court  retained  juris- 
diction l)v  allowing  an  amendment  which  made  one  of  the  orig- 
inal plaintiffs  a  defendant.15  When  they  are  not  indispensable 
parties,  jurisdiction  may  be  retained  upon  a  discontinuance  or 
dismissal  as  regards  defendants  who  are  citizens  of  the  same 
State  as  the  plaintiff ;  after,16  as  well  as  before,17  they  have  ap- 
peared ;  and  even,  it  was  held,  where  they  were  restored  a  few 
days  later  upon  their  petition  for  intervention ; 18  but  the  resig- 
nation after  suit  brought  of  a  defendant  trustee,19  and  the  filing 
of  a  disclaimer  by  a  defendant,20  who  were  citizens  of  the  com- 
plainant's State,  were  held  not  to  save  the  jurisdiction.  Juris- 
diction is  not  lost  because  a  defendant  ceases  to  re&ist  the  plain- 


Standard  Oil  Co.,  105  Fed.  785; 
Collins  v.  Ashland,  112  Fed.  175. 
But  see  Weaver  v.  Kelly,  92  Fed. 
417:  Mangels  v.  Donan  B.  Co.,  53 
Fed.  513. 

12  Tug  River  C.  &  S.  Co.  v.  Bri- 
gel,  80   Fed.  818. 

13  Louisville,  N.  A.  &  C.  Ry.  Co. 
v.  Louisville  Trust  Co.,  174  U.  S. 
552.  43  L.  ed.  1081,  C.  C.  A.,  75 
Fed.  433,  22  C.  C.  A.  378;  Chicago. 
I.  &  X.  P.  R.  Co.  v.  Minnesota  &  X. 
W.  R.  Co.,  29  Fed.  337. 

14  Anderson  v.  Watt,  138  U.  S. 
094,  34  L.  ed.  1078.  But  see  Hicklin 
v.  Marco,  C.  C.  A.,  50  Fed.  549; 
Whittle  v.  Artis,  55  Fed.  919. 

iSConolly  v.  Taylor,  2  Peters, 
556,  7  L.  ed.  518. 

16  Beebe  v.  Louisville,  X.  O.  & 
T.  R.  Co.,  39  Fed.  481,  484;  Morse 
v.  South,  80  Fed.  R.  200,  207  ;  Clai- 
borne v.  Waddel,  50  Fed.  308; 
Hicklin  v.  Marco,  C.  C.  A.,  50  Fed. 
549;  Horn  v.  Loekhart,  17  Wall. 
570,  21  L.  ed.  657;  Bane  v.  Reefer, 


00  Fed.  010;   Mason  v.  Dullinghani, 

82  Fed.  0S0;  Grove  v.  Grove,  93  Fed. 
805;  Sioux  City  T.  R.  &  W.  Co.  v. 
Trust  Co.  of  X.  Am.,  C.  C.  A.,  82 
Fed.  124:  Oxley  Stave  Co.  v.  Coop- 
ers' LTnion,  72  Fed.  095;  s.  c.  as 
Hopkins  v.  Oxley  Stave  Co.,  C.  C.  A., 

83  Fed.  912;  Smith  v.  Consumers' 
C.  O.  Co..  80  Fed.  359;  Tug  R.  C. 
&  S.  Co.  v.  Brigel,  C.  C.  A.,  SO  Fed. 
818;  infra.  §  40;  see  Chapter  on 
Removal  of  Causes. 

17  A.  R.  Barnes  &  Co.  et  al.  v. 
Berry  et  al.,  150  Fed.  72. 

18  Sioux  City  T.  &  W.  Co.  v. 
Trust  Co.  of  X.  Am..  C.  C.  A..  82 
Fed.  124:  s.  c.  173  U.  S.  99.  43  L. 
ed.  028. 

19  Ruohs  v.  Jarvis-Conklin  Mt. 
Tr.  Co.,  84  Fed.  513. 

20  Wetherby  v.  Stinson,  C.  C.  A.. 
02  Fed.  193.  But  see  Frazer  Lubri- 
cator Co.  v.  Frazer,  23  Fed.  305; 
Wirgman  v.  Persons,  120  Fed.  449, 
451. 


100 


ORIGINAL    JURISDICTION. 


[§  41 


tiff's  demand ; 21  nor  by  the  addition  of  new  parties,  whose  citi- 
zenship would  have  prevented  their  original  joinder  in  the  suit, 
and  who  come  in  by  amendment,22  or  by  intervention,23  or  by 
succession  through  an  assignment  of  the  plaintiff's  interest,24  or 
by  operation  of  law. 
1  It  has  been  held  that  there  is  a  controversy  between  citizens 
of  different  States  when  one  of  them  has  a  justiciable  claim 
against  the  other,  although  the  latter  consents  to  the  jurisdic- 
tion and  to  the  appointment  of  a  receiver  before  the  complain- 
ants had  obtained  judgment  in  an  action  at  common-law;26  and 
in  the  case  of  a  suit  by  a  stockholder  to  procure  the  appointment 
of  a  receiver  because  of  insolvency,  when  his  shares  have  been 
assigned  to  him  for  the  purpose  of  the  commencement  of  the 


suit. 


27 


§  41.  Parties  to  the  controversy.  A  controversy  between 
citizens  of  different  States  is  one  in  which  every  party  upon  one 
side  is  a  citizen  of  a  different  State  from  that  of  every  party 
upon  the  other.1     In  determining  between  whom  the  contro- 


21  Park  v.  N.  Y.,  L.  E.  &  W.  R. 

Co..  70  Fed.  641. 

22  Qbef  v.  Gallagher,  93  U.  S.  199, 
200,  23  L.  ed.  829,  831  ;  Stewart  v. 
Dunham,  115  U.  S.  61,  64,  29  L.  ed. 
329,  330;  Phelps  v.  Oakes,  117  U.  S. 
236.  29  L.  ed.  888;  Hardenbergh  v. 
Pay,  151  U.  S.  112,  38  L.  ed.  93.  But 
si'/  Mangels  v.  Donau  Br.  Co..  53 
Fed.  513;  Weaver  v.  Kelly,  92  Fed. 

417. 

23  Osborne  &  Co.  v.  Barge,  30  Fed. 
805;  Belmont  Nail  Co.  v.  Col.  I.  & 
S.  Co..  46  Fed.  336;  Henderson  v. 
Goode,  49  Fed.  887;  United  El.  S. 
Co.  v.  La.  El.  L.  Co..  68  Fed.  673; 
Society  v.  Shakers  v.  Watson,  C.  C. 
A.,  68  Fed.  730;  Fark  v.  N.  Y., 
L.  E.  &  W.  R.  Co.,  70  Fed.  641  ;  Cole 
v.  Philadelphia  &  E.  Ry.  Co.,  140 
F*ed.  944:  Monmouth  Tnv.  Co.  v. 
Means.  C.  C.  A.,  151  Fed.  159;  in- 
fra, §  25S.  Contra,  Forest  Oil  Co. 
v.  Crawford,  C.  C.  A.,  101  Fed.  849. 
See  also  Clyde  v.  Richmond  &  D.  R. 
Co.,  65   Fed.  336. 


24  Sioux  City  Tr.  R.  &  W.  Co.  v. 
Trust  Co.  of  North  America,  C.  C. 
A'.,  82  Fed.  124;  s.  c.  173  U.  S.  99, 
43  L.  ed.  628;  Monmouth  Inv.  Co. 
v.  Means,  C.  C.  A..  151  Fed.  159. 
Contra,  Pittsburgh,  S.  &  N.  R.  Co. 
v.  Fiske,  C.  C.  A.,  178  Fed.  66. 

25  Glover  v.  Shepperd,  21  Fed. 
4S1;  Jarboe  v.  Templer,  38  Fed.  213. 
Contra,  Adams  Exp.  Co.  v.  Denver 
&  R.  G.  Ry.  Co.,  16  Fed.  712. 

26  Re  Metropolitan  Railway  Re- 
ceivership, 208  U.  S.  90,  52  L.  ed. 
403. 

27  Re  Cleland,  218  U.  S.  120,  54  L. 
ed.  962. 

§41.  1  Strawbridge  v.  Curtiss, 
3  Cranch,  267,  2  L.  ed.  435;  Corpo- 
ration of  New  Orleans  v.  Winter,  1 
Wheaton,  91,  4  L.  ed.  44;  Conolly 
v.  Taylor,  2  Peters,  556;  Louisville, 
C.  &  C.  R.  Co.  v.  Letson,  2  How. 
(U.  S.).  497.  11  L.  ed.  353;  Ohio 
&  M.  R.  Co.  v.  Wheeler,  1  Black. 
286,  17  L.  ed.  130;  Susquehanna  & 
W.  V.  Railroad  &  Coal  Co.  v.  Blatch- 


41] 


DIFFERENCE  OF  CITIZENSHIP. 


101 


versy  exists,  the  court  is  not  bound  by  the  title  of  the  cause  or 
the  form  of  the  pleadings;  but  should  examine  the  record,  as- 
certain the  matter  in  dispute  and  arrange  the  parties  on  oppo- 
site sides  of  the  same,  according  to  the  facts,  no  matter  what 
their  technical  place  as  plaintiffs  or  defendants  may  be.2 

It  has  been  held :  that  a  party  whose  claim  is  adverse  to  the 
complainant  is  on  the  opposite  side  of  the  controversy  to  him, 


ford,   11   Wall.   172,   20   L.   ed.   179; 
Avers  v.  City  of  Chicago,  101  U.  S. 
184,  25  L.  ed.  838;  Blake  v.  McKim, 
103  U.  S.  336,  26  L.  ed.  563 ;  Shain- 
wald  v.  Lewis,  108  U.  S.  158.  27  L. 
ed.  691 ;   affirming  order  5  Fed.  510, 
6   Sawyer,    585;    Bissell   v.   Horton, 
Fed.    Cas.    No.    1,448;    Ketchum    v. 
Farmers'    Loan    &    Trust    Co.,    Fed. 
Cas.  No.  7,736  (4  McLean,  1)  ;  Hub- 
bard  v.    Northern    R.    R.    Co.,    Fed. 
Cas.    No.    6,818     (3    Blatchf.    84); 
Tuckerman    v.    Bigelow,    Fed.    Cas. 
No.   14,228;   Lovejoy  v.  Washburne, 
Fed.  Cas.  No.  8.550    (1   Biss.  416); 
Petterson  v.  Chapman,  Fed.  Cas.  No. 
11,042    (13    Blatchf.    395);    Teal   v. 
Walker,  Fed.  Cas.  No.  13,812;  Dor- 
mitzer   v.    Illinois   &    St.    L.   Bridge 
Co..  6  Fed.  217:  Walsh  v.  Memphis, 
C.   &    N.   W.   R.    Co.,    6    Fed.    797; 
Karns  v.   Atlantic  &   O.  R.   Co.,   10 
Fed.  309;    Mitchell   v.  Tillotson,   12 
Fed.  737  ;  Ouachita  &  M.  R.  Packet 
Co.  v.  Aiken,  16  Fed.  890;   Holland 
v.  Ryan.  17  Fed.  1  ;  Walser  v.  Mem- 
phis] C.  &  N.  W.  Ry.   Co.,   19  Fed. 
152;    Hazard   v.    Robinson,    21    Fed. 
193;    Saginaw  Gaslight   Co.   v.   City 
of    Saginaw,    28    Fed.    529;    Covert 
v.    Waldron,    33     Fed.    311;     Oxley 
Stave  Co.  v.  Coopers'  International 
Union    of    North    America,    72    Fed. 
695;  Consolidated  Water  Co.  v.  Bab- 
cock.   76   Fed.  243;    Ludlow's   Heirs 
v.  Kidd's  Heirs,  3  Ohio    (3  Ham.), 
48;   Miller  v.  Lynde    (Connecticut), 
2  Root,  444.  1  Am.  Dec.  86;  Tesson 
v.  Gusman  (Louisiana),  26  La.  Ann. 


248;  New  Orleans  v.  Seixas  (Loui- 
siana), 35  La.  Ann.  36;  Florence 
Sewing  Mach.  Co.  v.  Grover  &  Ba- 
ker Sewing  Mach.  Co.,  110  Mass. 
70,  14  Am.  Rep.  579;  North  River 
Steamboat  Company  v.  Hoffman 
(New  York),  5  Johns.  Ch.  300; 
Fairchild   v.   Durand    (New   York), 

8  Abb.  Prac.  305;  Fisk  v.  Chicago, 
R.  I.  &  P.  R.  Co.  (New  York),  53 
Barb.  472.  Contra,  Bradley,  J.,  in 
Girardey  v.  Moore,  Fed.  Cas.  No. 
5,462    (3  Woods,  397). 

2  Removal  Cases,  100  U.  S.  457, 
468,  25  L.  ed.  593;  Pacific  R.  Co.  v. 
Ketchum,  101  U.  S.  289,  25  L.  ed. 
932;  Barney  v.  Latham,  103  U.  S. 
205,  26  L.  ed.  514;  Carson  v.  Hyatt, 
118  U.  S.  279,  286,  30  L.  ed.  167, 
169;  Blacklock  v.  Small.  127  U.  S. 
96,  32  L.  ed.  70;  Evers  v.  Watson, 
156  U.  S.  527,  39  L.  ed.  520;  Girar- 
dey v.  Moore,  Fed.  Cas.  No.  5.462 
( 3  Woods,  397 )  ;  Dodge  v.  Perkins. 
Fed.  Cas.  No.  3,954  (4  Mason. 
435);  Burke  v.  Flood.  1  Fed.  541. 
6    Sawyer.    220;     Marvin    v.    Ellis, 

9  Fed.  367;  Saver  v.  La  Salle  & 
P.  Gaslight  &  Coke  Co.,  14  Fed. 
69.  9  Biss.  372;  Anderson  v.  Bow- 
ers, 40  Fed.  70S;  Brown  v.  Murray 
Nelson  &  Co.,  43  Fed.  614:  Man- 
gels v.  Donau  Br.  Co..  53  Fed.  513: 
Pittsburg,  C.  &  St.  L.  By.  Co.  v. 
Baltimore  &  O.  R.  Co.,  61   Fed.  705, 

10  C.  C.  A.  20.  22  U.  S.  App.  359; 
Cilley  v.  Patten.  62  Fed.  498;  Ober- 
lin  College  v.  Blair.  70  Fed.  414: 
Hutton  v.  Joseph  Bancroft  &  Sons' 


102  ORIGINAL    JURISDICTION.  [§    41 

although  their  relations  are  not  hostile,3  and  that  the  jurisdic- 
tion is  not  defeated  because  the  complainant  seeks  to  compel 
defend  ants,  who  are  citizens  of  the  same  State,  to  litigate  a  dis- 
pute between  them  in  the  Federal  court,  when  the  plaintiff  has 
a  cause  of  action  against  them  both.4  In  a  suit  by  tax- 
payers against  county  officers  and  bondholders,  to  enjoin  pay- 
ment of  the  bonds,  the  defendant  officers  were  presumed  to  be 
on  the  same  side  of  the  controversy  as  the  taxpayers.5  Com- 
plainant, a  citizen  of  Iowra,  filed  a  bill  charging  that  a  judg- 
ment had  been  fraudulently  obtained  against  a  city  of  Iowa,  in 
favor  of  defendant,  citizen  of  another  State,  by  means  of  a 
combination  between  him  and  others  not  made  parties  to  the 
bill.  The  relief  sought  was  to  have  the  judgment  declared  void. 
The  mayor,  treasurer,  and  recorder  of  the  city  were  made  de- 
fendants, that  they  might  be  restrained  from  paying  the  judg- 
ment pendente  lite,  but  there  was  no  charge  that  they  had  par- 
ticipated in  the  fraud,  or  that  they  had  any  interest  adverse  to 
complainant.  It  was  held:  that,  though  there  was  no  separate 
controversy  between  complainant  and  the  defendant  charged 
with  the  fraud,  the  other  defendants  were  only  nominal  parties, 
their  interest  being  in  fact  adverse  to  the  latter ;  and  their 
joinder  as  defendants  could  not  affect  his  right  to  have  the  cause 
removed.6  A  State  granted  to  a  county  the  swamp  lands  do- 
nated to  the  State  by  Congress,  and  located  in  said  county,  for 
school  purposes.  A  bill  was  filed  in  a  State  court  by  the  State, 
on  behalf  of  the  county  school  board,  against  the  county  and 
certain  citizens  of  other  States,  to  set  aside  conveyances  of  such 
lands.  Defendants  other  than  the  county  sought  to  remove  the 
cause  to  the  Federal  court  on  the  ground  of  diverse  citienship. 
It  was  held :  that  the  county  was  a  necessary  party,  and,  it 
and  complainant  being  fellow  citizens,  the  suit  could  not  be 

Co..  77  Fed.  4S1 ;  Reese  v.  Zinn,  103  *  Feidler   v.    Bar tleson,   C.   C.   A., 

Fed.  97;   Boatmen's  Bank  v.  Fritz-  1(51    Fed.    30.      But   see    First    Nat. 

len,  C.  C.  A.,  135  Fed.  650:  Mirabile  Bank  v.  Bridgeport  Tr.  Co.,  117  Fed. 

Corp.  v.  Purvis,  143  Fed.  920;  Mil-  909;  cited  infra,  §  42. 

ler    v.    Lynde,    2    Root,    444,    1    Am.  5  Harter  v.  Kernochan.   103   U.  S. 

Dec.  86.  562,    26    L.    ed.    411;    Anderson    v. 

3  Federal  Mining  &  Smelting  Co.  Bowers,  40  Fed.  708. 

v.  Bunker  Hill  &  Sullivan  Mining  6  May  v.  St.  John,  38  Fed.  770. 
&  Concentrating  Co.,  187  Fed.  474. 


§  41] 


DIFFERENCE  OF  CITIZENSHIP. 


103 


removed.7  In  a  suit  by  the  trustee  of  a  mortgage,  to  enforce  a 
right  of  action  held  by  the  mortgagor,8  or  to  protect  the  mort- 
gaged property  from  injury,9  the  mortgagor  will  be  con- 
sidered to  be  on  the  same  side  of  the  controversy  as  the  com- 
plainant, unless  it  clearly  appears  that  he  is  actively  opposed 
to  the  relief  prayed.10  In  a  suit  by  a  bondholder  or  other 
cestui  que  trust,  to  enforce  a  right  after  his  trustee  has  refused 
to  sue  upon  the  same,  the  defendant  trustee  is  considered  to  be 
upon  the  same  side  of  the  controversy  as  the  plaintiff;11  unless 
the  latter  seeks  some  relief  antagonistic  to  the  other  beneficiar- 
ies of  the  trust,12  or  when  the  plaintiff  claims  some  substan- 
tial relief  against  the  trustee.13  In  an  action  against  the 
trustee  of  a  deed  of  trust  and  his  cestui  que  trust,  brought  by 
the  assignee  in  insolvency  of  the  grantor  to  prevent  a  sale  of 
the  property  and  for  an  accounting  between  the  grantor  and 
the  beneficiary,  the  trustee  is  an  indispensable  party  ad- 
verse in  interest  to  the  plaintiffs,  and,  if  a  resident  of  the 
same  State  as  the  plaintiffs,  the  District  Court  of  the  United 
States  has  no  jurisdiction  of  the  action  as  a  controversy  be- 


7  Missouri  v.  New  Madrid  Coun- 
ty.  73    Fed.   304. 

8  Dawson  v.  Columbia  Trust  Co., 
197  U.  S.  178.  49  L.  cd.  713;  Wil- 
liams v.  City  Bank  &  Tr.  Co.,  C.  C. 
A.,  186  Fed.  419.  See  Adams  v. 
City  of  Woburn,  174  Fed.  192. 

9Consol.  Water  Co.  v.  Babcoek. 
70  Fed.  243;  Boston  S.  D.  &  Tr. 
Co.  v.  Racine,  97  Fed.  817;  Old 
Colony  Tr.  Co.  v.  Atlanta  Ry.  Co., 
100  Fed.  798.  Cf.  Mercantile  Tr.  & 
D.  Co.  v.  Collins  P.  &  B.  R.  Co.,  99 
Fed.  812.  But  see  Knickerbocker 
Tr.  Co.  v.  City  of  Kalamazoo,  182 
Fed.  865. 

10  Dawson  v.  Columbia  Trust  Co., 
197  U.  S.  178,  180,  49  L.  ed.  713, 
7ir,. 

"  Pacific  B.  Co.  v.  Kotclmm,  101 
l.  S.  289,  25  L.  ed.  932;  Blacklock 
v.  Small.  127  l".  S.  96,  32  L.  ed. 
70;  Barry  v.  Mo..  K.  &  T.  Ry.  Co,, 
27   Fed.   1  :   Needham  v    Wilson,  47 


Fed.  97;  Reinach  v.  Atlantic  &  G. 
W.  R.  Co.,  58  Fed.  33;  Shipp  v.  Wil- 
liams, C.  C.  A.,  62  Fed.  4;  Bowdoin 
College  v.  Merritt,  63  Fed.  213;  Kil- 
dare  Lumber  Co.  v.  National  Bank'. 
C.  C.  A.,  69  Fed.  2;  First  Nat.  Bank 
v.  Radford  Tr.  Co.,  C.  C.  A.,  80 
Fed.  569,  573;  Dunn  v.  Waggoner, 
11  Tenn.  (3  Yerg. )  59;  Swann  v. 
Myers.  79  N.  C.  101.  But  see 
Hack  v.  Chicago  &  G.  S.  Ry.  Co., 
23  Fed.  356.  But  see  Einstein  v. 
Georgia,  So.  &  F.  Ry.  Co.,  120 
Fed.  1008. 

12  Rust  v.  Brittle  Silver  Co..  C. 
C.  A.,  58  Fed.  611;  Kildare  Lum- 
ber Co.  v.  National  Bank.  C.  C.  A., 
69  Fed.  2;  First  Nat.  Bank  v.  Rad- 
ford Tr.  Co..  80  Fed.  569,  571,  573. 
Sec  Mommouth  In  v.  Co.  v.  Means, 
C.  C.  A.,  l.'.l    Fed.  159. 

13  Fit/.  Gerald  v.  Thompson,  222 
U.  S.  555,   'id  L.  ed.  314. 


104  ORIGINAL    JURISDICTION.  [§    41 

fcween  citizens  of  different  States,  although  the  cestui  que  trust 
is  a  citizen  of  a  different  State.14 

In  a  stockholder's  suit  to  enforce  a  right  of  his  corporation, 
where  it  is  shown  that  the  corporation-is  under  the  control  of 
the  other  defendants,  it  will  be  treated  as  upon  the  same  side  of 
the  controversy  that  they  are,  for  the  purpose  of  determining  the 
jurisdiction.15  In  one  to  prevent  the  majority  <^f  the  stockhold- 
ers from  causing  the  corporation  to  act  in  fraud  of  the  minority, 
the  corporation  is  to  be  aligned  on  the  same  side  as  the  majority 
stockholders.16  It  has  been  held:  that  in  a  stockholder's  suit, 
where  the  plaintiff  has  failed  to  comply  with  the  equity  rules 
by  showing  efforts  to  secure  action  by  the  other  stockholders  on 
an  excuse  for  such  failure,  the  corporation  is  to  be  treated  as 
upon  the  same  side  of  the  controversy  as  the  complainants.1' 
Where  the  controversy  for  the  control  of  the  corporation  tran- 
scends the  rivalry  of  those  claiming  to  be  members  of  its  board 
of  control  and  the  corporation  itself  is  a  mere  instrumentality 
or  holder  of  the  title,  it  is  properly  made  a  party  defendant  and 
should  not  be  aligned  as  a  plaintiff  merely  because  the  plaintiffs 
belong  to  the  faction  that  claims  the  power  to  appoint  the  mem- 

WPeper    v.    Fordyce,    119    U.    S.  49    L.    ed.    606,    it    was    held,    that 

469,  30  L.  ed.  435.  where    a   stockholder's    bill    did   not 

15  Doctor    v.    Harrington,    196    U.  conform   to   the   requirement  of   the 

S.  579,  49  L.  ed.  606;   overruling  a  equity  rules,  by  showing  efforts  made 

number    of    decisions    of    the    lower  to  secure  action  by  the  stockholders, 

courts  to  the  contrary.     Woolsey  v.  or   an    excuse   for   such    failure,   the 

Dodge,  Fed.  Cas.  Xo.   IS. 032.   6  Mc-  corporation    must    be    aligned    with 

Lean.  142;   s.  c,  as  Dodge  v.  Wool-  the    complainants.      Waller    v.    Co- 

sey,    IS    Now.    331,    15    L.    ed.    401;  ler.  125  Fed.  821. 

DeNeufville  v.   New    York   &   X.   R.  16  De    Xeufville    v.    New    York    & 

Co.,  C.  C.  A.,  81  Fed.  10;   MacGin-  X.   Ry.   Co.,   C.   C.   A.,   81    Fed.   10: 

niss  v.  Boston  &  M.  Consol.  Copper  Redfield   v.   Baltimore   &    O.   R.   Co. 

&  Silver  Min.  Co.,   119   Fed.  96.  55  124    Fed.    929;    Elkins    v.    Chicago, 

C.  C.  A.  648;  Redfield  v.  Baltimore  119  Fed.  957. 

&  O.  R.  Co.,  124  Fed.  929;  Mills  v.  17  Waller  v.  Coler,  125  Fed.  821; 
City  of  Chicago,  127  Fed.  731  ;  Groel  Groel  v.  United  El.  Co..  132  Fed. 
v.  United  Electric  Co.  of  New  Jer-  252.  These  cases  were  decided 
sey,  132  Fed.  252;  Howard  v.  Xat.  before  Doctor  v.  Harrington.  196 
Telephone  Co..  j82  Fed.  215;  Craw-  U.  S.  579,  49  L.  ed.  606.  A  similar 
ford  v.  Seattle,  R.  &  S.  Ry.  Co..  198  ruling  has  been  made  since  that  de- 
Fed.  920.  Before  the  decision  of  cision.  Gage  v.  Riverside  Trust  Co., 
Doctor  v.  Harrington,  196  U.  S.  579,  156  Fed.  1002.  1007. 


41] 


DIFFERENCE  OF  CITIZENSHIP. 


105 


bers  of  the  board.18  In  such  a  case,  it  has  been  held  that  trus- 
tees of  the  corporation,  although  in  sympathy  with  the  com- 
plainant, should  be  aligned  with  the  defendants.19  But  in  a 
suit  to  enjoin  striking  employees  of  a  contractor  with  com- 
plainant, from  intimidating  the  contractor,  it  was  held,  that 
such  contractor,  although  he  did  not  oppose  the  relief  sought, 
could  not  be  aligned  on  the  same  side  of  the  controversy  as  the 
plaintiff  so  as  to  defeat  the  jurisdiction.20 

In  a  suit  by  the  creditors  of  an  insolvent  corporation  cit- 
izens of  another  State  from  the  corporation  and  its  assignees, 
charging  improper  conduct  on  the  part  of  the  assignees  and 
praying  for  a  receiver,  it  was  objected  to  the  jurisdiction  of  the 
Federal  court  that  the  action  was  really  one  by  the  corpora- 
tion against  the  assignees,  and  that  the  suit  was  brought  by 
the  creditors  for  the  purpose  of  bringing  the  suit  in  the  Fed- 
eral courts.  It  was  held,  that,  as  the  creditors  had  the  right  to 
sue,  this  objection  was  not  tenable.21 

The  jurisdiction  must  appear  on  the  face  of  the  record.22 
Where  one  of  the  parties  is  made  a  defendant  merely  because 
he  has  refused  to  join  as  a  party  plaintiff,  he  is  considered  to 
be  on  the  same  sale  of  the  controversy  as  the  plaintiff,  wdien  the 
jurisdiction  is  determined ; 23  unless  there  is  a  substantial  dis- 
pute between  him  and  the  plaintiff  as  to  the  division  of  the 
proceeds,  or  some  other  question  involved  in  the  suit;  in  which 
case  it  has  been  held,  that  he  is  on  the  side  of  the  controversy 
opposite  to  such  plaintiff.24     In  an  action  on  a  bond  secured  by 


18  Helm  v.  Zarecor,  222  U.  S.  32, 
56  L.  ed.  77.  But  see  Stephens  v. 
Smartt,  172  Fed.  400. 

l9Sliarpe  v.  Bonhara,  224  U.  S. 
241,  50  L.  ed.  747. 

20  Carroll    v.    Cheas.    &    0.    Coal' 
Agency  Co.,  C.  C.  A.,  124  Fed    305; 
s.  c,  as  Cheas.  &  O.  Coal  Co.  v.  Fire 
Creek    C.   &   C.    Co.,    119    Fed.    942. 

21  Bell  v.  Ohio  Life  Ins.  Co.,  Fed. 
Cas.  No.   1,261. 

22  Bell  v.  Ohio  Life  Ins.  Co.,  Fed. 
Cas.   No.   1,2(11. 

23  Edgerton  v.  Gilpin.  Fed.  Cas. 
No.  4,280  (3  Woods.  277):  Mis- 
souri  v.  Alt.   73   Fed.  302;   Johnson 


v.  Ford.  109  Fed.  501:  Einstein  v. 
Georgia,  S.  &  F.  Ry.  Co..  V20  Fed. 
1008:  Joseph  Dry  Goods  Co.  v. 
Hecht,  C.  C.  A.,  120  Fed.  760:  Mene- 
fee  v.  Frost,  123  Fed.  633.  See  al- 
so Bland  v.  Fleeman.  29  Fed.  669; 
Woodrum  v.  Clay,  33  Fed.  897  ; 
Megibben's  Adm'rs  v.  Perin,  49  Fed. 
183;  approved  as  to  this  point  upon 
reversal.  Perin  v.  Megibben,  C.  C. 
A..  53   Fed.   SO,  91. 

24  Everett  v.  Independent  >vnoot 
Dist.  of  Rock  Rapids.  109  Fed. 
097:  Wood  v.  Deskins,  C.  C.  A., 
141   Fed.  500. 


10G  ORIGINAL    JURISDICTION.  [§    41 

a  mortgage,  brought  by  citizens  of  one  State  against  the  citi- 
zens of  another,  one  of  the  defendants,  by  her  answer,  prayed 
that  the  mortgage  and  bond  be  declared  valid  and  foreclosed  for 
her  benefit  and  that  of  plaintiffs.  The  bond  and  mortgage  were 
not  divisible.  All  the  defendants,  including  the  one  praying 
for  relict',  were  citizens  of  the  same  State.  It  was  held,  that 
the  Federal  court  had  no  jurisdiction  as  it  was  substantially  an 
action  between  citizens  of  the  same  State.25  An  Ohio  corpora- 
tion filed  a  bill  in  a  Federal  court  in  West  Virginia  against  B., 
as  trustee  and  individually,  M.,  A.,  P.,  K.,  and  the  personal 
representative  and  heirs  of  G.,  all  of  whom  were  citizens  of 
West  Virginia,  and  a  Pennsylvania  corporation,  alleging  that 
land  claimed  by  plaintiff  and  by  K.  and  G.  was  conveyed  to  B., 
as  trustee,  to  sell,  and  pay  the  proceeds  to  plaintiff,  K.,  and 
G. ;  that  B.  conspired  with  M.,  P.  and  A.,  who,  on  G.'s  death 
qualified  as  his  personal  representative,  and  pursuant  thereto, 
the  value  of  the  land  having  greatly  increased,  sold  it  to  M. 
for  much  less,  fraudulently  concealing  from  plaintiff  the  fact 
of  the  increase ;  that  the  consent  of  K.  to  the  sale  was  obtained 
l>y  permitting  him  to  retain  a  one-fifth  interest  in  the  land,  the 
other  four-fifths  being  held  by  A.,  who  joined  the  conspiracy 
to  defraud  G.'s  heirs,  M.,  P.  and  B. ;  and  that  after  title  was 
conveyed  by  B.  to  M.  the  land  was  leased  to  the  P.  Co.  for  a 
bonus  much  larger  than  the  price  accounted  for  by  B.,  with  a 
royalty  on  oil  taken  from  the  land  and  other  rentals  and  pay- 
ments. Complainant  prayed  that  M.,  B.,  A.,  P.,  and  K.  be 
decreed  to  account  for  and  pay  over  to  plaintiff  K.,  and  the 
heirs  of  G.,  moneys  received  from  the  Pennsylvania  Company, 
and  that  the  latter  be  required  to  attorn  to  such  beneficiaries. 
It  was  held,  that  the  real  controversy  was  as  to  the  fraud  al- 
leged to  have  been  committed  by  B.,  A.,  M.,  P.  and  K. ;  that 
plaintiff  and  the  heirs  of  G.  were,  on  the  one  side,  opposed  to 
the  other  parties ;  that  such  heirs  were  indispensable  parties, 
and,  being  citizens  fo  the  same  State  as  part  of  the  other  de- 
fendants, the  court  was  without  jurisdiction.26  Where  one 
tenant  in  common  brought  a  suit  against  his  co-tenant  and  others 
for  partition  of  the  land  held  in  common,  and  to  quiet  the  title 
as  against  claims  of  the  defendant  other  than  his  co-tenant,  but 

25  Black  lock    v.   Small,    127    U.   S.  26  Trustees    of   Oberlin    Col'ege   v. 

90.  32  L.  ed.  70.  Blair.  70  Fed.  414. 


§    41]  DIFFERENCE  OF  CITIZENSHIP.  107 

did  not  press  it  as  a  bill  for  partition,  it  was  held,  that  it  might 
be  sustained  as  a  bill  to  quiet  the  title  of  the  complainant's  un- 
divided interest,  notwithstanding  there  was  a  want  of  diverse 
citizenship  between  him  and  the  defendant,  his  co-tenant.27  In 
an  action  by  two  of  three  trustees  against  a  corporation  resid- 
ing in  another  State,  it  was  held,  that  the  fact  that  one  of  the 
trustees,  who  refused  to  join  as  plaintiff  in  the  suit,  and  was 
made  a  defendant,  was  a  citizen  of  the  same  State  as  the  cor- 
poration, did  not  deprive  the  Federal  court  of  jurisdiction,  on 
the  ground  that  the  trustee  residing  in  the  same  State  with  de- 
fendant was  a  necessary  party  plaintiff,  since  that  trustee  was 
made  such  in  order  that  the  rights  of  all  interested  parties 
might  be  determined  in  one  proceeding.28  It  was  said  :  that  if 
the  jurisdiction  of  the  court  would  be  ousted  by  making  all 
the  parties  concerned  in  interest  plaintiffs,  those  who  are  citi- 
zens of  the  same  State  with  the  real  defendants  may  refuse* to 
join  in  the  suit,  and  may  be  made  defendants.29  It  has  been 
held:  that  in  a  suit  for  a  partition,  where  all  the  defendants 
were  citizens  of  different  States  from  that  of  the  plaintiff s'-citi- 
zenship,  there  should  be  no  re-alignment  of  parties  to  defeat 
the  jurisdiction  because  there  were  disputed  questions  in  the 
case  between  the  plaintiffs,  which  did  not  appear  in  the  bill, 
although  they  might  subsequently  arise  and  be  determined  in 
the  suit.30  Complainants  tiled  a  bill  in  a  Circuit  Court  of 
the  United  States  in  California  against  defendants,  who  were 
citizens  of  that  State,  alleging  that  complainants  were  heirs 
at  law  of  a  decedent  from  whom,  prior  to  his  death,  one  of  the 
defendants,  who  was  also  a  brother  and  one  of  his  heirs,  had 
procured  a  conveyance  of  all  his  property  without  considera- 
tion, which  was  invalid  by  reason  of  the  decedent's  insanity; 
that  subsequently  such  defendant,  who  was  insolvent,  had  con- 

27  Morse    v.    South,    80    Fed.    206.  defendant    and    so    defeat    the    ju- 

But    see    German    Savings    &    Loan  risdiction. 

Soc.  v.  Tull,  C.   C.  A..   136   Fed.   1;  28  Einstein    v.    Georgia    Southern 

holding:    that,    in    a   suit   for   parti-  &   F.    Ry.   Co.,   120   Fed.    1008.     See 

tion.    the    fact    that    disputed    ques-  Monmouth    Inv.    Co.    v.    Means,    C. 

tions,   not   appearing  upon   the   face  C.  A.,  151   Fed.  159. 

of    the    bill,    might    arise    between  29  Wisner  v.  Ogden,   Fed.  Cas.  No. 

the     plaintiffs,     who     were     citizens  17.014    (4   Wash.    631). 

of  the  same  State,  did  not  make  it  30  German    Saw    &    Loan    Soc.    v. 

necessary   to   treat   one   of   them    as  Tull,  C.  C.  A.,  136  Fed.   1.   10. 


108  ORIGINAL    JURISDICTION.  [§41 

vejed  such  property  to  his -co-defendant  in  payment  of  an  ante- 
cedent indebtedness.  The  prayer  of  the  Bill  was  that  the  con- 
veyances be  set  aside  as  to  such  shares  of  the  property  as  would 
have  been  inherited  by  complainants.  It  was  held,  that  the 
court  could  not  determine  from  such  allegations  and  prayer 
that  the  interest  of  the  defendant,  who  was  a  co-heir  with  com- 
plainants, would  be  best  served  by  their  success,  so  as  to  re- 
quire such  an  arrangement  of  parties  as  would  make  him  a 
complainant,  and  defeat  the  court's  jurisdiction;  there  being  no 
proof  of  fraud  or  collusion  by  him  and  complainants.31  Where 
the  validity  of  a  mortgage  is  in  question,  the  mortgagor  is  pre- 
sumed to  be  on  the  same  side  of  the  controversy  as  the  other 
parties  who  attack  the  mortgage.32  It  has  been  held :  that  in 
an  action  by  a  mortgagor  to  cancel  certain  mortgages  and  to 
foreclose  a  subsequent  trust  deed  to  the  same  property,  although 
the  cestui*  que  trustent  have  a  common  interest  with  plaintiff 
in  showing  the  discharge  of  said  mortgages,  they  are  neverthe- 
less his  adversaries  as  to  the  other  matters  in  controversy,  and 
will  not  be  rearranged  as  parties  plaintiff,  so  as  to  show  diver- 
sity of  citizenship.33  In  a  garnishee  proceeding  after  judg- 
ment, it  was  held,  that  the  judgment  debtor  was  on  the  same 
side  of  the  controversy  as  the  judgment  creditor.34  In  an 
action  for  damages  under  the  Kansas  statute,  because  the  plain- 
tiff's cattle  caught  Texas  fever  from  cattle  driven  into  the  State 
in  violation  of  the  law,  where  the  importer  of  the  Texan  cattle 
and  those  to  whom  he  had  sold  the  same  under  a  contract,  where- 
by they  assumed  his  liability  to  the  plaintiff,  were  joined  as 
defendants ;  it  was  held,  that  the  importer's  interest  was  not  so 
adverse  to  that  of  his  vendees  as  to  justify  his  classification  as  a 
plaintiff,  and  thereby  give  such  vendees  a  right  of  removal  on 
the1  ground  of  diverse  citizenship.35  In  a  suit  by  an  attaching 
creditor  to  set  aside  judgments  obtained  against  the  debtor  by 
confession,  it  was  held,  that  other  attaching  creditors,  whom 

3iReavis  v.  Reavis,  98  Fed.  145.  33  Springer   v.   Sheets,    115   N.   C. 

32  Removal   Cases,   100  U.   S.  457,       370.  20  S.  E.  469. 
409,     25     L.    ed.    593;     Wolcott     v.  34  Baker    v.    Duwamish    Mill    Co. 

Spjague,    55    Fed.    545;     Boatmen's       149   Fed.  012. 

Bank  v.  Fritzlen,  C.  C.  A..  135  Fed.  35  Woodrum  v.  Clay,  33  Fed.  897. 

650,  658.  660;  reversing  128  Fed. 
608;  United  States  Mortg.  Co.  v. 
McClure,  70  Pac.  543,  42  Or.  190. 


§  42] 


DIFFERENCE  OF  CITIZENSHIP. 


109 


he  had  joined  as  defendants,  were  on  the  same  side  of  the  con- 
troversy as  the  plaintiff.36 

§  42.  Formal  parties  to  the  controversy.  The  citizen- 
ship of  formal  parties;  with  no  real  interest  in  the  controversy, 
does  not  affect  the  jurisdiction.1  Such  are  parties  holding  the 
naked  legal  title,,  with  no  actual  interest  or  control  over  the 
subject-matter  of  the  litigation,  when  all  the  equitable  interests 
are  therein  represented.2  Plaintiff  and  another  contracted  as 
partners  to  do  certain  work  in  the  construction  of  a  railroad 
as  subcontractors.  By  a  contract  between  themselves,  previous- 
ly made  and  known  to  the  principal  contractor,  it  was  agreed: 
that  plaintiff  should  furnish  the  materials  and  do  the  work  and 
receive  and  disburse  the  money  received  therefor,  accounting 


36  Pollok  v.  Louchheim,  19  Fed. 
465. 

§  42.  1  Wormley  v.  Wormley,  8 
Wheaton,  421,  5  L.  ed.  651  ;  Wood 
v.  Davis,  18  How.  467,  15  L.  ed. 
460:  Removal  Cases,  100  U.  S.  457, 
25  L.  ed.  593;  Barney  v.  Latham, 
103  U.  S.  205,  26  L.  ed.  514;  Harter 
v.  Kernochan,  103  U.  S.  562,  26  L. 
ed.  411;  Corbin  v.  Van  Brunt,  105 
U.  S.  576,  26  L.  ed.  1176;  Maryland 
v.  Baldwin,  112  U.  S.  490,  28  L.  ed. 
822;  Hervey  v.  Illinois  Midland  Ry. 
Co.,  Fed.  Cas.  No.  6,434  (7  Biss. 
103)  ;  Girardey  v.  Moore,  Fed.  Cas. 
No.  5,462  ( 3  Woods,  397 )  ;  Edger- 
ton  v.  Gilpin,  Fed.  Cas.  No.  4,280 
(3  Woods,  277)  ;  Taylor  v.  Rocke- 
feller, Fed.  Cas.  No.  13,802;  Chica- 
go, St.  L.  &  N.  O.  R.  Co.  v.  McComb, 
Fed.  Cas.  No.  2,670  (17  Blatchf. 
371);  Foss  v.  First  Nat.  Bank,  3 
Fed.  185,  1  McCrary,  474;  Deford  v. 
Mehaffy,  14  Fed.  181;  Taylor  v. 
Holmes,  14  Fed.  49S;  Bates  v.  New 
Orleans,  B.  R.  &  V.  R.  Co.,  16  Fed. 
294;  Gudger  v.  Western  N.  C.  R. 
Co.,  21  Fed.  81  ;  Sioux  City  &  D.  M. 
Ry.  Co.  v.  Chicago.  M.  &  St.  P.  Ry. 
Co.,  27  Fed.  770;  New  Chester  Wa- 
ter Co.  v.  Holly  Mfg.  Co.,  C.  C.  A., 
53    Fed.    19,   26;    Carver   v.   Jarvis- 


Conklin  Mortgage  Trust  Co.,  73  Fed. 
9;  Garrard  v.  Silver  Peak  Mines, 
76  Fed.  1 ;  Title  Guarantee  &  Trust 
Co.  v.  Studebaker,  100  Fed.  358; 
Wirgman  v.  Persons,  C.  C.  A.,  126 
Fed.  449;  affirming  decree  Persons 
v.  Beling,  110  Fed.  877;  Stoiner  v. 
Mathewson,  77  Ga.  657;  Withers  v. 
John  Hopkins  Place  Sav.  Bank 
(Georgia),  30  S.  E.  706;  Harper  v. 
Gaitheman  (Kentucky),  1  Ky.  Law. 
Rep.  419;  Danvers  Sav.  Bank  v. 
Thompson,  133  Mass.  1S2;  Calloway 
v.  Ore  Knob  Copper  Co.,  74  N.  C. 
200;  Hadley  v.  Dunlap,  10  Ohio  St. 
1;  Smith  v.  Baltimore  &  0.  R.  Co., 
7  Ohio  Dec.  542. 

2  Boon  v.  Chiles,  8  Pet.  532,  8  L. 
ed.  1034;  Banigan  v.  City  of  Wor- 
cester, 30  Fed.  392 ;  Lawrence  v. 
Southern  Pac.  Co.,  165  Fed.  241: 
Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
Phillips,  C.  C.  A.,  176  Fed.  663, 
holding  that  in  an  action  by  a 
widow  under  the  California  statute 
to  recover  damages  for  the  (hath  of 
her  husband,  the  other  heirs  of  the 
deceased,  who  are  not  entitled  to 
share  in  the  recovery,  are  necessary, 
but  merely  formal,  parties.  But  see 
Dunn  v.  Waggoner,  11  Tenn.  (3 
Yerg.),  59. 


110 


ORIGINAL    JURISDICTION. 


[§  42 


to  his  associate  only  for  a  share  of  the  net  profits  of  the  contract. 
After  the  completion  of  the  work,  plaintiff  brought  suit  in  a 
Federal  court  to  enforce  a  mechanic's  lien,  filed  in  the  name 
of  the  partnership,  for  the  balance  due  under  the  contract,  al- 
leging such  facts  in  his  bill  and  that  no  net  profits  were  earned 
under  the  contract.  It  was  held :  that  it  was  competent  for 
plaintiff  to  allege,  for  jurisdictional  purposes,  the  contract  be- 
tween him  and  his  nominal  partner ;  and  that  under  such  agree- 
ment the  citizenship  of  such  partner  did  not  affect  the  jurisdic- 
tion of  the  court,  since  he  had  no  interest  in  the  recovery  and 
was  neither  an  indispensable  nor  a  necessary  party.3  The  hus- 
band of  a  married  woman  when  made  a  party  to  a  suit  affect- 
ing her  separate  estate  is  such  a  formal  party.4  In  a  suit  in 
which  it  appears  by  the  record  that  a  party  sues  for  the  use  of 
another,  such  plaintiff  is  a  nominal  party.5  It  has  been  held, 
that  the  following  plaintiffs  are  formal  parties,  whose  citizen- 
ship will  not  affect  the  jurisdiction,  the  status  of  the  person 
interested  in  the  recovery  being  alone  considered :  a  State  officer 
who  sues  to  collect  a  penalty  for  the  benefit  of  the  State ; 6  the 
nominal  payee  of  a  bond  suing  for  the  use  of  another,  who  is 
entitled  to  the  benefit  of  the  same,  such  as  the  United  States 
in  a  suit  upon  the  bond  of  a  receiver ; 7  the  State  in  a  suit  upon 


3  Ban  v.  Columbia  Southern  Ry. 
Co.,  117  Fed.  21,  54  C.  C.  A.  407; 
reversing  109  Fed.  499. 

4  Wormley  v.  Wormley,  8  Wheat. 
421,  5  L.  ed.  G51 ;  First  Nat.  Bank 
v.  Bridgeport  Tr.  Co.,  117  Fed.  969. 

5  Browne  v.  Strode,  5  Cranch, 
303,  3  L.  ed.  108;  Dimmock  v.  Doo- 
little,  29  Fed.  545;  New  Chester 
Water  Co.  v.  Holly  Mfg.  Co.,  53 
Fed.  19,  3  C.  C.  A.  399,  3  U.  S.  App. 
204:  affirming  48  Fed.  879.  And 
eases   cited    infra,   notes. 

6  Ferguson  v.  Ross,  3  L.R.A.  322, 
3S  Fed.  161.  As  to  when  the  State 
may  be  a  forma]  party  see  Ex  parte 
Nebraska,  209  U.  S.  436,  52  L. 
ed.  876.  Certain  State  statutes  re- 
quired railroads  to  post  on  black- 
boards erected   in  telegraph  passen- 


ger stations  the  time  of  the  arrival 
of  passenger  trains,  stating  whether 
the  same  are  late,  and,  if  so,  how 
much ;  and  provided  a  penalty  for 
a  violation  of  this  requirement,  to 
be  recovered  in  the  name  of  the 
State  by  the  prosecuting  attorney 
for  the  benefit  of  himself  and  the 
county  school  fund.  It  was  held: 
that  an  action  by  the  State,  under 
such  action,  was  not  removable  to 
the  Federal  court  for  diversity  of 
citizenship,  on  the  ground  that  the 
prosecuting  attorney  and  the  county 
receiving  the  penalty,  if  recovered, 
were  the  real  parties  in  interest. 
Southern  Ry.  Co.  v.  State  (In- 
diana), 72  N.  E.  174. 

7  U.  S.  v.  Douglas,  113  N.  C.  190, 
18  S.  E.  202. 


42] 


DIFFERENCE  OF  CITIZENSHIP. 


Ill 


the  bond  of  a  public  officer;8  or  an  administrator;9  or  upon 
the  bond  of  an  attaching-  creditor ; 10  the  governor  of  a  State  in 
a  suit  upon  a  sheriff's  bond,11  or  a  forthcoming  bond ; 12  a 
marshal  in  a  suit  upon  an  attachment  bond ; 13  and,  it  has  been 
said,  a  State  in  any  suit  brought  in  its  name  on  the  relation 
of  another;14  but  not,  it  has  been  held,  the  United  States  in 
a  suit  brought  for  the  benefit  of  a  material  man  upon  a  con- 
tractor's bond.15  So,  it  has  been  held,  are:  an  agent,16  or 
attorney,17  or  officer,18  or  director,19  of  a  corporation,  when 
made  defendant  in  a  suit  against  it  seeking  no  relief  against 
him  even  when  in  the  controversy  they  sympathize  with  the 
complainant,20  public  officers  against  whom  no  relief  is  sought, 
except  an  injunction  against  their  official  action  in  aid  of  an 


8  Indiana  ex  rel.  Stanton  v.  Glo- 
ver,   155   U.   S.   513,   39   L.   ed.  243. 

9  Maryland  v.  Baldwin,  112  U.  S. 
490,  28  L.  ed.  822. 

10  Missouri  ex  rel.  Ranch  v. 
Bowles  Milling  Co.,  80  Fed.  101. 

"McNutt  v.  Bland,  2  How.  9,  11 
L.  ed.   159. 

12  Wade  v.  Wortsman,  29  Fed. 
754;  Wortsman  v.  Wade,  77  Ga.  651, 
4  Am.  St,  Rep.  102. 

13  Huff  v.  Hutchinson,  14  How. 
586,  14  L.  ed.  553. 

14  Jack  v.  Williams,  113  Fed. 
823,  824.  See  Missouri  v.  Alt,  73 
Fed.  302.  Contra,  State  of  Ohio  v. 
Columbus  &  Xenia  R.  Co.,  48  Fed. 
626;  an  application  for  a  manda- 
mus. 

15  U.  S.  Fidelity  &  G'y  Co.  v.  U. 
S.  for  the  benefit  of  Kenyon,  204 
U.  S.  349,  51  L.  ed.  516;  affirming 
U.  S.  v.  Churchyard.  132  Fed.  82;  U. 
S.  v.  Henderlong,  102  Fed.  2;  U.  S. 
v.  Sheridan.  119  Fed.  236;  U.  S.  v. 
O'Brien,  120  Fed.  446,  448;  U.  S. 
v.  Barrett,  135  Fed.  189;  Burrell 
v.  U.  S.,  C.  C.  A..  147  Fed.  44,  46. 

16  Wood  v.  Davis,  18  How.  467, 
15  L.  ed.  460;  City  of  New  York  v. 
New  Jersey  Steamboat  Transp.  Co., 


24  Fed.  817;  Brown  v.  Murray  Nel- 
son &  Co.,  43  Fed.  614;  Overman 
Wheel  Co.  v.  Pope  Mfg.  Co.,  46  Fed. 
577;  Sidway  v.  Missouri  Land  & 
Live  Stock  Co.,  116  Fed.  381:  Caro- 
thers  v.  McKinley  Mining  &  Smelt- 
ing Co.,   122  Fed.  305. 

17  Brown  v.  Murray  Nelson  &  Co., 
43  Fed.  614. 

18  Hatch  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  Fed.  Cas.  No.  6,204  (6 
Blatchf.  105)  ;  Pond  v.  Sibley,  7 
Fed.  129,  19  Blatchf.  189;  National 
Bank  of  Lyndon  v.  Wells  River 
Mfg.  Co.,  7  Fed.  750;  City  of  New 
York  v.  New  Jersey  Steamboat 
Transp.  Co.,  24  Fed.  817;  Lamm 
v.  Parrot  Silver  &  Copper  Co.,  Ill 
Fed.   241. 

19  Geer  v.  Mathieson  Alkali 
Works.  190  U.  S.  428,  47  L.  ed. 
1122;  Pond  v.  Sibley,  7  Fed.  129,  19 
Blatchf.  1S9;  Politz  v.  Wabash  R. 
Co.,   153   Fed.   941. 

20Sharpe  v.  Bonham,  224  U.  S. 
241,  56  L.  ed.  747;  overruling  Stew- 
art v.  Mitchell,  172  Fed.  905;  Steph- 
ens v.  Smartt,  172  Fed.  466.  See 
Helm  v.  Zarecor,  222  U.  S.  32,  56  L. 
ed.  77. 


112  ORIGINAL    JURISDICTION.  [§    42 

act  of  another  defendant,  which  the  bill  also  seeks  to  enjoin.21 
Where  one,  acting  as  agent  only,  made  insurance  in  his  own 
name,  and  for  all  others  concerned,  although  he  and  the  under- 
writer were  citizens  of  the  same  State;  it  was  held,  that  the 
underwriter  might  be  sued  in  those  courts  by  the  principal,  who 
was  a  citizen  of  a  different  State.2 

To  a  bill  filed  by  trustees  on  behalf  of  the  creditors  of  a  part- 
nership against  a  corporation  of  which  one  of  the  partners  was 
president,  for  an  accounting  and  the  appointment  of  a  receiver, 
upon  allegations  that  the  president  so  managed  the  affairs  was 
the  corporation  and  the  partnership  as  to  defraud  the  latter, 
and  to  divert  its  funds  for  the  benefit  of  himself  and  the  cor- 
poration ;  it  was  held,  that  the  president  of  the  corporation,  his 
partner  in  the  firm,23  and  the  firm  itself  were  indispensable  par- 
ties defendant,  and  where  they  were  citizens  of  the  same  State 
as  complainants  such  bill  could  not  be  maintained  in  a  Federal 
court.24  The  directors  are  not  nominal  parties  to  a  suit  against 
them  and  their  corporation,  to  cancel  stock  subscriptions  and 
to  compel  them,  individually,  as  well  as  the  corporation,  to 
refund  the  amounts  already  paid  by  the  subscribers;25  nor 
where  they  are  charged  with  actual  participation  in  a  fraud. 

It  was  held  that  the  following  are  formal  parties:  State 
and  county  officers  in  a  suit  to  enjoin  them  from  levying,  col- 
lecting and  disbursing  the  taxes  required  to  pay  certain  bonds, 
when  the  bill  also  sought  the  declaration  that  the  bonds  be  de- 
clared void  and  their  collection  enjoined,  making  bondholders 
parties  defendant ; 27  a  register  of  deeds  in  a  suit  to  set  aside 
certain  land  contracts  with  a  prayer  for  an  injunction  against 
his  recording  the  same ; 28  an  officer  appointed  to  sell  land  under 
a  decree,  when  made  defendant  in  a  suit  to  set  aside  that  decree 

21  So  held,  of  a  sheriff  and  com-  23  Cabaniss  v.  Reco  Min.  Co.,  C. 
missioners   of   appraisal,   who   were       C.  A.  116  Fed.  318. 

made   defendants   to   a   suit    to   en-  24  Ibid. 

join     a     corporation     from     prose-  25  Seddon  v.  Virginia,  T.  &  C.  S. 

cuting     condemnation     proceedings.  &   I.   Co.,   36   Fed.  0,   1   L.R.A.   108. 

Sioux  City  &  D.  M.  Ry.  Co.  v.  Chi-  26  Fox  v.  Maekay,  60  Fed.  4. 

cago,  M.  &  St.  P.  Ry.  Co.,  27  Fed.  27  Aroma   Tp.  v.  Auditor  of  Pub- 

770.  lie  Accounts,  2  Fed.  33. 

22  Ruan  v.  Gardner,  Fed.  Cas.  No.  28  Hyde  v.  Victoria  Land  Co.,  125 
12,100    (1   Wash.  C.  C.   145).  Fed.  970. 


§    42]  DIFFERENCE  OF  CITIZENSHIP.  H3 

for  fraud.29     An  assignee  for  the  benefit  of  creditors,  a  citizen 
cf  the  State  of  Rhode  Island,  filed  a  bill  in  equity  in  the  State 
court,   against  a   Massachusetts   creditor   of  his   assignor,   who 
had  obtained  a   State  execution,   and  the  officer  charged  with 
the  service  thereof,  who  was  a  citizen  of  Rhode  Island,  to  estab- 
lish his  trust,  and  to  enjoin  the  sale  of  the  trust  property  levied 
upon  by  the  execution.     Upon  a  petition  by  the  execution  credi- 
tor to  remove  the  bill  into  the   Circuit  Court  of  the  United 
States  for  the  Rhode  Island  district ;  it  was  held,  that  the  officer 
was  not.  a  formal,  or  unnecessary  party  to  the  bill,   that  his 
presence  could,  not  be  disregarded  by  the  court  in  considering 
whether  the  applicant  was  entitled  to  the  jurisdiction  which  he 
invoked ;  and  that  the  petition  must  be  dismissed.30     Citizens 
of  Tennessee,  holding  policies  of  life  insurance  in  a  foreign  cor- 
poration, filed  their  bill  in  the  chancery  court  against  that  and 
other  foreign  corporations  for  relief  and  to  subject  to  the  satis- 
faction of  their  claims  the  property  of  that  company,  including 
certain  State  bonds  deposited  by  it  with  the  treasurer  of  the 
State  "as  security  for  risks  taken  by  citizens  of  this   State," 
and,  for  this  purpose,  made  the  treasurer,  a  citizen  of  Tennes- 
see, a  party  defendant.     It  was  held,  that  the  treasurer  was  a 
material  party  defendant,  and  the  court  refused,  on  the  appli- 
cation of  the  foreign  corporations,  to  accept  their  petition  and 
bond  and  to  authorize  a  removal.31     It  was  held:  that  the  juris- 
diction of  the  Circuit  Court  of  the  United  States  is  not  defeated 
by  the  fact  that  with  the.  principal  defendant  are  joined,  as 
nominal  parties,  the  executors  of  a  deceased  trustee,  citizens  of 
the  same  State  as  the  complainant,  in  order  that  such  executors 
may  perform  the  ministerial  act  of  conveying  title,  in  case  the 
power  to  do  so  is  vested  in  them  by  the  laws  of  the   State,32 
Where  the  holder  of  the  equitable  title  is  a  party  to  the  suit,  a 
dry  trustee,  or  passive  trustee,  or  one  who  merely  holds   the 
legal  title  without  any  power  over  the  property  in  question,  he 
is  generally  considered  to  be  a  formal  party.33     Where  the  trust 
is  active  and  the  trustee  has  a  power  over  the  property,  he  is 

29  Carver  v.  Jarvis-Conklin  Mort-  88,Walden    v.    Skinner,    101    U.   S. 

gage  Trust  Co..  7.3  Fed.  9.  .")77.  25  L.  ed.  963. 

80  Nye  v.  Nightingale,  6  R.  I.  439.  33  Boon   v.   Cliiles,   8   Pet.   532,    8 

31  Smith    v.    St.    Louis    Mut.    Life  L.    ed.    1034;     Bftnigan    v.    City    of 

Tn«.    Co.,    2    Tenn.    Ch.    656.  Worcester,   30   Fed.   392.     See   Law- 

Fed.   Prac.  Vol.  L— 8. 


114: 


ORIGINAL    JURISDICTION. 


[§    42 


usually  considered  to  be  a  necessary  party  to  the  suit,  whose 
citizenship  must  be  considered  in  determining  the  jurisdiction.34 
Where  two  citizens  of  one  State,  trustees  for  bondholders  under 
a  mortgage  of  a  railroad  owned  by  a  corporation  of  another 
State,  foreclosed  the  mortgage,  bought  in  the  road  in  trust  for 
the  bondholders,  and  leased  it  to  a  citizen  of  the  State  to  which 
they  themselves  belonged;  and  then  a  majority  of  the  bond- 
holders, citizens  of  the  State  where  the  original  company  was, 
in  pursuance  of  a  statute  there,  formed  themselves  into  a  new 
corporation,  to  which  the  statute  gave  ownership  and  control 
of  the  road,  and  suit  was  brought  in  a  State  court  against  the 
lessee  of  the  road  by  the  trustees  who  had  made  the  lease ;  it  was 
held :  that  defendant  could  not  remove  the  suit  from  the  State 
court  to  the  Federal  court  on  the  ground,  that  it  was  wholly 
between  the  new  corporation  and  the  lessee,  and  that  the  trus- 
tees wrere  now  merely  nominal  parties ;  they,  the  trustees,  not 
having  been  discharged  from,  nor  in  any  way  incapacitated 
from  executing,  their  trust,  and  there  having  been,  in  fact,  un- 
paid bondholders  who  had  not  joined  in  the  creation  of  the 
new  corporation,  and  who  had  yet  a  right  to  call  on  the  trustees 
to  provide  for  the  payment  of  their  bonds.35  It  has  been  held  : 
that  trustees  are  formal  parties  to  a  controversy  concerning  a 
claim  for  the  cancellation  of  bonds  secured  by  the  deed  of  trust, 
although  an  injunction  against  a  foreclosure  is  prayed.36  In  a 
suit  to  set  aside  a  deed  of  trust  made  for  the  benefit  of  creditors, 
it  appeared  that  plaintiff  and  the  trustee  were  citizens  of  the 
same  State,  but  that  the  beneficiaries  under  the  deed,  other  than 
plaintiff,  were  citizens  of  another  State.     It  was  held,  that  the 


renee  v.  Southern  Pac.  Co.,  165  Fed. 
241:  Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
Phillips,  C.  C.  A.,  176  Fed.  663. 
But  see  Dunn  v.  Waggoner,  11  Tenn. 
(3  Yerg.),  59. 

34  So  held,  of  a  trustee  of  land 
conveyed  to  him,  to  secure  the  pay- 
ment of  a  loan  in  a  suit  to  cancel 
the  conveyance  or  to  enjoin  a  sale 
thereunder.  Thayer  v.  Life  Asso- 
ciation of  America,  112  U.  S.  717, 
28  L.  ed.  864;  Peper  v.  Fordyce.  119 
U.  S.  469,  30  L.  ed.  435;  reversing 
decree    Fordyce    v.    Peper.    16    Fed. 


516,  5  McCrary,  221;  Teal  v.  Walk- 
er, Fed.  Cas.  No.  13,812.  Contra, 
Chester  v.  Wcllford,  Fed.  Cas.  No. 
2,662  (2  Flip.  347).  So  held  of 
trustees  of  a  mortgage  in  a  fore- 
closure suit  brought  by  the  bene- 
ficiary, after  they  have  refused  to 
sue.  Allen-West  Commission  Co.  v. 
Brashear.  176  Fed.  119. 

35K„app  v.  Railroad  Co.,  87  II. 
S.    (20   Wall.),   117,  22   L.  ed.  328. 

36  Lake  St.  El.  R.  Co.  v.  Ziegler, 
99  Fed.  114,  39  C.  C.  A.  431. 


§    42]  DIFFERENCE  OF  CITIZENSHIP.  115 

trustee  was  an  indispensable  party  to  the  suit,  and  that  the 
Federal  court,  and  therefore,  had  not  jurisdiction.37  It  has 
been  held:  that  in  a  controversy  as  to  the  priority  of  different 
liens  upon  mortgaged  land,  the  mortgagor  is  a  formal  party, 
when  the  validity  of  neither  of  the  liens  is  disputed ; 38  and  that 
so  is  the  lessor  of  a  railroad  when  the  lease  is  for  more  than 
ninety  vears  and  the  lessee  has  assumed  all  the  lessor's  obliga- 
tions ; 39  and  that  so  is  the  owner  of  the  fee  as  well  as  the  lessee 
railway  company,  in  a  proceeding  to  condemn  a  right  of  way 
in  the  possession  of  the  lessee  holding  a  term  of  ninety  years.40 
Defendants  sued  by  fictitious  names  are  always  treated  as  for- 
mal parties,  whose  presence  on  the  record  does  not  affect  the 
right  of  removal.41  A  garnishee  is  not  considered  to  be  a  party 
to  the  suit,  when  determining  the  right  of  removal.42  Where 
the  essential  parties  on  the  adverse  sides  of  a  controversy  were 
citizens  of  different  States;  it  was  held,  that  the  fact  that  the 
executors  of  the  deceased  father  of  the  principal  defendant,  who 
had  been  made  defendants  in  order  to  reach  his  interest  in  his 
father's  estate,  were  citizens  of  the  same  State  as  plaintiffs, 
would  not  affect  the  right  of  removal.43  It  has  been  held,  that 
the  following  persons  are  not  mere  formal  parties,  and  that 
their  citizenship  must  be  considered  when  the  jurisdiction  is 
determined :  a  party  against  whom  a  decree  is  essential  to  the 
relief  sought  by  the  suit ; 44  a  stakeholder  in  the  possession  of 

37  RUst   v.   Brittle   Silver   Co.,   58       North    Carolina    R.    Co.,    123    Fed. 
Fed.  611,  7   C.  C.  A.  389,  19   U.  S.       629. 

App.  237.  41  Park'nson  v   Barr,  105  F-.-d.  81  ; 

38  Removal   Cases,  100  U.  S.  457,       Loop  v.   Winters'   Estate,   115   Fed. 
469,  25  L.  ed.  593.     But  see  Thomp-       362. 

son  v.  Dixon,  28  Fed.  5;  Tug  River  42  Cook  v.  Whitney,  Fed.  Cas.  No. 

Coal  &  Salt  Co.  v.  Brigel,  C.  C.  A.,  3,166    (3    Woods,   715)  ;    Corbitt   v. 

67  Fed.  625.  President,  etc.,  of  Farmers'  Bank  of 

39  Seaboard     Air     Line     Ry.     v.  Delaware,   113   Fed.  417. 

North  Carolina  R.  Co.,  123  Fed.  629;  43  Bacon   v.   Rives,    106   U.   S.   99, 

Olanta     Coal     Min.     Co.    v.     Beech  27  L.  ed.  69. 

Creek  R.  Co.,   144  Fed.   150;   Chase  44  Wormley    v.    Wormley,    21    U. 

v.    Beech    Creek    R.    Co.,    144    Fed.  S.    (8   Wheat.),   421,   5   L.  ed.   651; 

571.     Contra,  Bellaire  v.   Baltimore  Carneal    v.    Banks,    23    U.    S.     (10 

&  Ohio  R.  R.  Co.,  146  U.  S.  117,  36  Wheat.),  181,  6  L.  ed.  297;  Ward  v. 

L.  ed.  910;  Washington  v.  Columbus  Arrcdondo,  Fed.  Cas.  No.  17,148    (1 

&  C.  M.  R.  Co.,  53  Fed.  673.  Paine,   410)  ;    Post  v.  Buckley,   119 

40  Seaboard   Air   Line   Ry.   Co.   v.  Fed.  249. 


116 


ORIGINAL    JURISDICTION. 


[§  43 


property,  to  recover  which  the  suit  is  brought;45  an  adminis- 
trator with  the  will  annexed  in  a  suit  for  a  construction  of  the  * 
will;46  the  personal  representative  of  a  deceased  in  an  action 
to  recover  damages  for  his  death,  although  the  proceeds  are  for 
the  exclusive  benefit  of  the  members  of  the  dead  man's  family  ;  4' 
a  tenant  in  common  with  a  leasehold  interest  and  an  equity  for 
improvements,   when  joined  with   the  landlord   in   a   suit   for 
ejectment;48  a  corporation  in  a  stockholder's  suit,  to  cancel  a 
contract  which  it  has  made;49  a  corporation  in  a  suit  by  its 
mortgagee,  to  cancel  a  contract  made  by  it  with  another,  al- 
though it  was  alleged  that  its  assets  were  insufficient  to  pay  the 
mortgage ; 50  a  corporation  in  a  suit  to  compel  the  transfer  of 
stock,  the  certificates  for  which  were  held  or  claimed  by  an- 
other defendant.51     Where  the  stakeholder  brought  a  suit  of 
interpleader;  it  was  held,  that  a  difference  of  citizenship  be- 
tween the  defendants  justified  a  removal.52    Under  the  Illionis 
statute,  which  gives  the  right  of  appeal  to  any  one  aggrieved  by 
the  order  of  a  probate  court  allowing  a  claim,  as  construed  by  the 
Supreme  Court  of  the  State,  any  person  appealing,  other  than 
the  administrator,  might  prosecute  the  appeal  in  his  own  name. 
It  was  held,  that  where  the  claimant  was  the  administrator,  and 
a  temporary  administrator  was  appoint  ted  by  the  probate  court 
to  represent  the  estate,  but  the  claim  was  actually  contested  by 


45  Wilson  v.  Oswego  Tp.,  151  U. 
S.  50,  38  L.  ed.  70;  Massachusetts 
&  S.  Constr.  Co.  v.  Cane  Creek  Tp., 
155  U.  S.  283,  30  L.  ed.  152;  Scoutt 
v.  Keck,  73  Fed.  900,  20  C.  C.  A. 
103.  But  see  Pacific  R.  Co.  v.  Ket- 
chum,  101  U.  S.  289,  298,  25  L.  ed. 
932;  Bacon  v.  Rives,  106  U.  S.  99, 
27  L.  ed.  69;  Reeves  v.  Corning,  51 
Fed.  774,  778;  N.  Y.  Constr.  Co.  v. 
Simon,  53  Fed.  1;  and  cases  cited. 

46  Security  Co.  v.  Pratt,  64  Fed. 
405. 

47Laubscher  v.  Fay,  197  Fed.  879. 

48  Beardsley  v.  Torrey,  Fed.  Cas. 
No.  1,190  (4  Wash.  C,  C.  286); 
Cleveland  v.  Cleveland.  C.  C.  &  St. 
L.  Ry.  Co.,  C.  C.  A.,  140  Fed.  171. 
Contra,  Gwynne  v.  Roe.  4  Ohio  (4 
Ham.),    435;     Texas    v.    Lewis,    12 


Fed.  1;  brought  in  Texas  for  tres- 
pass to  try  title  to  land,  and  the 
tenant  disclaimed  title. 

49  East  Tennessee,  V.  &  G.  R.  Co. 
v.  Grayson,  119  U.  S.  240,  30  L.  ed. 
382. 

50  Consol.  Water  Co.  v.  Babcock, 
76  Fed.  243.  See  Dawson  v.  Co- 
lumbia Trust  Co.,  197  U.  S.  178.  49 
L.  ed.  713;   cited  supra. 

51  Crump  v.  Thurber,  115  U.  S. 
50,  29  L.  ed.  328;  Rogers  v.  Van 
Xortwick.  45  Fed.  513;  Patterson  v. 
Farmington  Street  Ry.  Co.,  Ill  Fed. 
202. 

52  First  Nat.  Bank  v.  Bridgeport 
Tr.  Co..  117  Fed.  969;  Feidler  v. 
Bartloson.  C.  C.  A.,  101  Fed.  30, 
cited,  supra,  §  41. 


§    42]  DIFFERENCE  OF  CITIZENSHIP.  117 

an  heir  of  the  decedent,  who  appealed  from  an  order  allowing 
the  claim,  the  question  of  diversity  of  citizenship  between  the 
parties  was  to  be  determined  upon  the  citizenship  of  such  appel- 
lant, and  not  upon  that  of  the  temporary  administrator.53     In 
an  ejectment  instituted  in  a  State  court  of  Pennsylvania  by  a 
citizen  of  Pennsylvania,  against  the  tenant  in  possession,  also 
a  citizen  of  that  State,  his  lessor,  a  citizen  of  Maryland,  after 
a  judgment  by  default  against  the  tenant,  was,  upon  his  petition 
admitted  as  a  defendant  to  the  suit.     The  new  defendant  then 
removed  the  cause;  but  the  Circuit  Court  remanded  the  same 
for  want  of  jurisdiction;  since  the  remover  was  a  co-defendant 
with  the  tenant  in  possession,  a  citizen  of  plaintiff's  State.54 
Where  a  stockholder  in  a  corporation  sued  to  enjoin  the  use  by 
another  corporation '  of  stock  in  the  former,  upon  the  ground 
that  the  latter  had  no  corporate  power  to  acquire  the  same;  it 
was  held,  that  the  former  company  was  not  a  necessary  party, 
and  that  its  joinder  could,  not  prevent  a  removal.55     It  was 
held:  that  a  corporation,  which  had  sold  all  its  property  and 
franchises  except  the  mere  right  to  exist,  and  which  had  no 
officers  or  place  of  business,  was  only  a  nominal  party  in  a  suit 
against  a  stockholder  to  make  him  liable  for  his  unpaid  sub- 
scription ;   notwithstanding  the  fact  that   the  corporation   had 
still  the  power  to  recognize  and  collect  the  stockholders'  dues.56 
But  upon  a  bill  for  the  specific  performance  of  a  contract  be- 
tween two  individuals  for  the  sale  of  certain  shares  of  stock 
issued  by  a  corporation,  and  to  recover  damages  for  the  breach 
of  such  contract,  which  bill  did  not  allege  the  insolvency  of  the 
other  party  to  the  contract,  nor  that  he  was  about  to  dispose  of 
the  stock ;  it  was  held  that  no  cause  of  action  was  stated  against 
the  corporation,   and  that,   if  joined,   it  was  merely  a  formal 
party,  which  could  not  affect  the  jurisdiction.57     It  has  been 
held:  that  a  corporation  is  a  mere  formal,  and  not  a  necessary, 
party  to  a  suit  to  enjoin  the  use  or  transfer  of  certificates  of 
stock  which  it  has  issued.58     In  an  action  against  a  principal 

53  Schneider  v.  Eldredge,  125  Fed.  56  Wellman    v.    Howland    Coal    & 

G38.  Iron   Works,   19   Fed.  51. 

5*Beardsley  v.  Torrey,  Fed.   Cas.  57 Lukas  v.  Milliken,  139  Fed.  816. 

No.   1,190    (4  Wash.  C.  C.  286).  58  County    Court    v.    Baltimore    & 

55  Higgins   v.   Baltimore   &    0.   R.  0.  R.  Co.,  35  Fed.  161. 
Co.,  99   Fed.  640. 


118 


ORIGINAL    JURISDICTION. 


[§  43 


and  a  surety,  the  surety  eannot  be  considered  as  a  merely  formal 
party.59  In  a  suit  in  support  of  an  adverse  claim  to  a  land 
patent,  the  original  applicant  is  not  a  formal  party,  although 
he  has  assigned  his  claim  to  another  person  joined  in  the  suit.60 
A  defendant,  who  has  disclaimed  an  interest  in  the  contro- 
versy.61 or,  who  has  made  a  default  in  appearance  or  pleading,62 
is  not  considered  as  a  formal  party,  and  his  citizenship  may 
prevent  a  removal.  The  fact  that  a  defendant  is  pecuniarily 
irresponsible,  so  that  a  judgment  against  him  would  be  of  no 
value,  does  not  make  him  a  formal  party.63 

§  43.  Unnecessary  parties  to  the  controversy. — In  cer- 
tain cases  it  has  been  held :  that  the  citizenship  of  defendants, 
who  are  proper  but  not  necessary  nor  indispensable  parties  to 
the  controversy  may  be  disregarded.1  Such  it  has  been  held 
are :  the  mortgagor  in  a  suit  to  determine  the  ownership  of  the 
bond  and  mortgage ; 2  defendants  who  have  been  made  parties 
to  a  suit  merely  because  they  are  alleged  to  be  indebted  to  the 
principal  defendant ; 3  in  a  suit  for  an  accounting  of  lands  sold 
by  a  corporation,  the  stockholders  and  incorporators  of  the 
same,  who  have  procured  the  conveyance  to  it  of  the  lands,  in 


59  Mutual  Reserve  Fund  Life 
Ass'n  v.  Farmer,  C.  C.  A..  77  Fed. 
929. 

60  Blackburn  v.  Portland  Gold 
Min.  Co.,  175  U.  S.  571,  44  L.  ed. 
276. 

61  New  Jersey  Zinc  Co.  y.  Trot- 
ter, Fed.  Cas.  Xo.  10.167:  Hax  v. 
Caspar.  31  Fed.  499;  Dow  v.  Brad- 
street  Co.,  46  Fed.  824;  Goodnow 
v.  Litchfield,  47  Fed.  753.  See 
Wetherby  v.  Stinson,  C.  C.  A..  62 
Fed.  173:  supra.  Held  contra  (as 
to  original  jurisdiction)  Frazer  Lu- 
bricator Co.  v.  Frazer,  23  Fed.  305; 
(as  to  right  to  removal)  Wirgman 
v.  Persons,  C.  C.  A.,  126  Fed.  449, 
451;  Wallin  v.  Reagan.  171  Fed. 
758.  In  the  former  case  at  least, 
the  disclaiming  defendant  was  not  a 
necessary  party.  Contra,  Day  v. 
Oatis  (Mississippi).  37  So.  559; 
Reed  v.  Hardeman   County,  77  Tex. 


165,  13  S.  W.  1024;  (removal  de- 
nied). See  Cooper  v.  Preston,  105 
Fed.  403;  Davies  v.  Wells,  134  Fed. 
139. 

62  Putnam  v.  Ingraham,  114  U> 
S.  57,  29  L.  ed.  65;  Brooks  v.  Clark. 
119  U.  S.  502,  30  L.  ed.  482:  Park 
v.  N.  Y.,  L.  E.  &  W.  R.  Co..  70  Fed. 
641;  Lederer  v.  Sire,  105  Fed.  529. 
Contra,  Judah  v.  Iowa  Barb-Wire 
Co.,  32  Fed.  561.  Steele  v.  Culver, 
211  U.  S.  26.  53  L.  ed.  74. 

63  Deere.  Wells  &  Co.  v.  Chicago. 
M.  &   St.   P.   Ry.   Co.,   85   Fed.   876. 

§  43.  l  Barney  v.  Latham.  103 
U.  S.  205.  215.  26  L.  ed.  514.  518: 
Ruckman  v.  Ruekman.  1  Fed.  5S7; 
Deford  v.  Mehaffy.  14  Fed.  181 :  Cor- 
bin  v.  Boies.  18  Fed.  3:  Cella,  Ad- 
ler  &  Tilles  v.  Brown.  136  Fed.  439. 

2  Ruckman  v.  Ruckman,  1  Fed. 
587. 

3  Deford  v.  Mehaffv,  14  Fed.  181. 


43] 


DIFFERENCE  OF  CITIZENSHIP. 


119 


which  the  plaintiffs  claimed  an  interest;4  the  debtor  in  a  suit 
by  a  creditor  to  set  aside  a  judgment  against  him,  alleged  to 
have  been  obtained  by  fraud ; 5  the  agent  for  another  defendant 
in  a  suit  for  the  specific  performance  of  a  contract  made  by  the 
latter  with  the  complainant,  and  for  the  delivery  of  securities 
in  pursuance  of  the  same,  although  such  agent  claimed  an  in- 
terest in  such  securities ;  6  in  a  stockholder's  suit  to  enjoin  the 
exchange  by  his  corporation  of  debentures  for  new  mortgage 
bonds  with  a  stock  bonus,  the  individual  directors,  the  registrar 
of  the  stock,  the  depositary  of  the  debentures,  the  trustees  of 
the  mortgage,  and  a  committee  representing  the  debenture  hold- 
ers in  the  transaction ; 7  a  person  for  whose  benefit  a  corpora- 
tion was  organized  in  a  suit  to  enjoin  such  corporation  from 
operating  a  ferry.8     It  has  been  held :  that  the  following  per- 
sons are  necessary  parties  to  the  respective  controversies  be- 
tween their  co-defendants  and  the  plaintiff,  and  that  the  suits 
in  which  such  controversies  are  litigated  are  not  removable  for 
difference  of  citizenship  if  they  are  citizens  of  the  same  State  as 
their  opponent :  a  lessor  corporation  in  a  suit  by  its  stockholders 
to  set  aside  a  lease  which  it  had  made;9  a  lessee  in  a  suit  to 
set  aside  in  his  lessor's  title ; 10  the  mortgagor  who  has  trans- 
ferred the  mortgaged  land  in  a  suit  to  foreclose  the  mortgage, 
where  it  is  sought  to  charge  Jiim  with  a  deficiency;11  in  a  suit 
to  cancel  a  judgment  the  judgment  creditor  although  he  has 
transferred  orders  by  the  debtor  for  the  payment  of  the  same 


4  Barney  v.  Latham,  103  U.  S. 
205,  215.  26  L.  ed.  514,  518. 

SCorbin  v.  Boies,  18  Fed.  3. 

6  Cella.  Adler  &  Titles  v.  Brown, 
13G  Fed.  439. 

7Politz  v.  Wabash  R.  Co.,  153 
Fed.   941. 

8  New  York  v.  New  Jersey  Steam- 
boat Transp.  Co..  24  Fed.  817. 

9  Central  R.  Co.  of  New  Jersey 
v.  Mills,  113  U.  S.  249.  28  L.  ed. 
949;  affirming  Mills  v.  Central  R. 
Co.  of  New  Jersey,  20  Fed.  449. 

10  Miller    v.    Sharp,    37    Fed.    101. 

11  Under  Act  Conn.  1878,  provid- 
ing that  the  foreclosure  of  a  mort- 
gage shall  be  a  bar  to  any  further 
suit    on    the    debt    unless    the    per- 


sons liable  therefor  are  made  par- 
ties, where  the  mortgagor  and 
mortgagee  are  citizens  of  that 
State,  and  the  mortgagor  has  con- 
veyed the  premises  to  a  citizen  of 
New  York :  the  mortgagor  is  a 
necessary  party  to  foreclosure  pro- 
ceedings against  the  latter,  if  it  is 
sought  to  charge  him  with  any  de- 
ficiency of  the  appraised  value  of 
the  land  to  pay  the  mortgage  debt, 
and  the  case  is  not  a  controversy 
wholly  between  citizens  of  different 
States,  ami  is  not  removable.  Coney 
v.  Winchell.  110  U.  S.  227.  29  L.  ed. 
010;  affirming  order  Winchell  v. 
Carll,  24  Fed.  St',:.. 


120 


ORIGINAL    JURISDICTION. 


[§   -±4 


to  him  ; 12  a  party  who  has  acquired  the  right  to  redeem  certain 
securities  pledged  by  another,  in  a  suit  to  foreclose  the  right 
of  redemption  thereof;13  in  a  suit  to  recover  a  deposit,  a 
savings  bank  after  it  has  brought  in  another  claimant  to  the 
deposit  as  an  additional  party  defendant,  when  the  money  has 
not  yet  been  paid  into  court;14  and,  it  has  been  said,  any 
person  whose  interest  is  so  bound  up  with  the  others,  thai 
his  legal  presence  as  a  party  is  an  absolute  necessity.15  In 
an  action  for  the  assignment  of  dower  brought  by  a  citizen 
of  Illinois,  it  appeared  that,  of  the  defendants  in  possession 
of  the  property,  one,  a  citizen  of  Illinois.  It  did  not  appear 
that  the  trustee  was  authorized  to  represent  his  interests  in 
the  property  for  the  purposes  of  this  suit.  It  was  held: 
that,  as  the  beneficiary  was  a  necessary  party,  and  a  citi- 
zen of  the  same  State  as  plaintiff,  the  case  could  not  be  re- 
moved.16 One  who  appears  by  the  proceedings  in  the  land 
office  to  be  the  applicant  for  a  patent  to  a  mining  claim,  and 
to  be  asserting  his  compliance  with  the  statute,  is  a  proper  and 
necessary  party  defendant  in  a  suit  in  support  of  an  adverse 
claim  under  E.  S.  §§  2325,  2326,  not  merely  a  nominal  party, 
and  he  cannot  be  disregarded  in  determining  the  question  of 
the  jurisdiction  of  a  Federal  court  on  the  ground  of  diverse 
citizenship.17 

§  44.  Trustees  and  other  representatives.     Where  a  party 
sues  or  is  sued  as  a  trustee,1  receiver,2  executor  or  administra- 


12  Independent  District  of  Rock 
Rapids  v.  Bank  of  Rock  Rapids, 
48   Fed.   2. 

13  Danvers  Saw  Bank  v.  Thomp- 
son, 130  Mass.  490. 

14  Bailey  v.  New  York  Sav.  Bank, 
2   Fed.  14,  18  Blatchf.  77. 

15  City  of  New  Orleans  v.  Seixas 
(Lxmisiana).  35  La.  Ann.  36.  See 
First.  Xat.  Bank  v.  Smith,  6  Fed. 
215:  Watson  v.  Evers.  13  Fed.  104; 
Xulton  v.  Isaacs  (Virginia),  30 
Grat.  726. 

16  Rand  v.  Walker,  117  U.  S.  340. 
29  L.  ed.  907. 

it  Blackburn    v.    Portland     Gold- 


Min.  Co.,   175  U.  S.  571,  44  L.  ed. 
276. 

§  44.  l  Chappedelaine  v.  Deche- 
naux,  4  Cranch,  306,  2  L.  ed.  629; 
Bonnafee  v.  Williams.  3  How.  574. 
]]  L.  ed.  732;  Susquehanna  &  W.  V. 
Railroad  &  Coal  Co.  v.  Blatchford, 
11  Wkll.  172.  20  L.  ed.  179;  Dodge 
v.  Tulleys.  144  TJ.  S.  451.  36  L. 
ed.  501  :  Glenn  v.  Walker.  27  Fed. 
577;  Earp  v.  Coleman.  28  Fed. 
340:  Morris  v.  Lindauer,  C.  C. 
A..  54  Fed.  23,  4  C.  C.  A.  162, 
6  U.  S.  App.  510;  Gill  v.  Stebbins, 
Fed.  Cas.  Xo.  5,431  (2  Paine.  417)  ; 
Adams  v.  White,  Fed.  (as.  Xo.  68; 
Goodnow    v.    Oakley,    68    Iowa,    25, 


§  41] 


IMFFKREXCE  OF  CITIZENSHIP. 


121 


tor,3  or  as  the  representative  of  a  class,4  and  none  of  the  per- 
sons whom  he  represents  is  named  in  the  title  of  the  cause,5  nor 
appears  to  have  an  interest  hostile  to  such  representative ; 6  his 
citizenship,  not  that  of  his  beneficiaries,  nor  of  those  whom  he 
represents,  nor  the  location  of  the  trust  estate,7  is  to  be 
considered.  The  citizenship  of  the  next  friend  or  guardian 
ad  litem  of  an  infant,8  of  a  lunatic,9  or  of  a  married  woman,10 
is  disregarded.     But  where  the  guardian  of  an  infant,11  or  the 


25  N.  W.  912.  But  see  Mead  v. 
Walker,  15  Wis.  499.  It  has  been 
said  that  the  rule  does  not  apply 
to  a  mere  agent  or  trustee  for  an- 
other's use,  whose  agency  is  not 
coupled  with  an  interest,  but  is  re- 
vocable at  any  time.  Bogue  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  193  Fed.  728, 
734. 

2  Farlow  v.  Lea,  Fed.  Cas.  No. 
4,649,  2  Cinn.  Law  Bull.  329;  Da- 
vies  v.  Lathrop,  12  Fed.  353;  Bris- 
enden  v.  Chamberlain,  53  Fed.  307; 
Snead  v.  Sellers,  C.  C.  A.,  66  Fed. 
371  ;  Pepper  v.  Rogers,  128  Fed.  987. 

3  Childress  v.  Emory,  8  Wheaton, 
642,  5  L.  ed.  705;  Bonnafee  v.  Wil- 
liams, 3  How.  574,  11  L.  ed.  732; 
Rice  v.  Houston,  13  Wall.  66,  20  L. 
ed.  484;  Blake  v.  Mekim.  103  U.  S. 
336,  26  L.  ed.  563;  Continental  L. 
Ins.  Co.  v.  Rhoads,  119  U.  S.  237, 
30  L.  ed.  380;  McElmurray  v. 
Loomis,  31  Fed.  395:  Harper  v. 
Norfolk  &  W.  R.  Co.,  36  Fed.  102; 
Bangs  v.  Loveridge,  60  Fed.  963; 
Popp  v.  Cincinnati,  H.  &  D.  Ry.  Co., 
96  Fed.  465;  Cincinnati.  H.  &  D.  R. 
Co.  v.  Thiebaud,  114  Fed.  918.  52 
C.  C.  A.  538:  Bishop  v.  Boston  &  M. 
R.  R.,  117  Fed.  771;  Laubscher  v. 
Fay.  197  Fed.  879;  Browne  v. 
Browne,  Fed.  Cas.  No.  2,035  (1 
Wash.  429)  ;  Dodge  v.  Perkins,  Fed. 
Cas.  No.  3.954  (4  Mason,  435); 
Carter  v.   Treadwell.  Fed.   Cas.   No. 


2,480  (3  Story,  25);  Hill  v.  Hen- 
derson, 14  Miss.  (6  Smedi'>  &  M.), 
351;  Miller  v.  Sunde,  1  N.  D.  1,  44 
N.  W.  301;  Geyer  v.  John  Hancock 
Mut.  Life  Ins.  Co.,  50  N.  H.  224,  9 
Am.  Rep.  185;  Middleton's  Ex'rs  v. 
Middleton  (Pennsylvania),  7  Wkly. 
Notes  Cas.  144. 

4  Omaha   Hotel    Co.    v.   Wade.   97 
U.   S.   13;    Jackson  &  Sharp   Co.  v. 

•Burlington  &  L.  R.  Co.,  29  Fed. 
474;  Putnam  v.  Timothy  Dry-Goods 
&  Carpet  Co.,  79  Fed.  454;  Interna- 
tional Trust  Co.  v.  T.  B.  Townsend 
Brick  &  Contracting  Co.,  95  Fed. 
850;  Alsop  v.  Conway,  C.  C.  A.,  188 
Fed.  568. 

5  U.  S.  v.  Myers,  Fed.  Cas.  No. 
15,844   (2  Brock.  516). 

6  See  supra,  §  41. 

7  Shirk  v.  City  of  La  Fayette,  52 
Fed.  857. 

8  Williams  v.  Ritchey,  Fed.  Cas. 
No.  17.734  (3  Dill.  400)  ;  Woolridge 
v.  McKenna.  8  Fed.  650;  Dodd  v. 
Ghiselin,  27  Fed.  405;  Voss  v. 
Neineber,  68  Fed.  947.  Contra.  In 
re  McClean's  Estate.  26  V\-d.  40. 

9  Wiaruins  v.  Bethune,  29  Fed.  51  ; 
Wilcoxen  v.  Chicago,  B.  &  Q.  R.  Co.. 
1  16   Fed.  444. 

10  Rtickman  v.  Palisade  Land  Co., 
1  Fed.  367:  Mead  v.  Walker.  15 
Wis.  409. 

ii  Mexican  Cent.  Ry.  Co.  v.  Eck- 
m an.  187  U.  S.  429.  47  L.  ed.  245. 


122  ORIGINAL    JURISDICTION.  [§    45 

curator  or  committee  of  a  lunatic,12  sues  in  his  own  name  under 
the  authority  of  a  State  statute,  his  citizenship,  not  that  of  his 
ward,  is  the  test  of  the  right  of  removal.  Notwithstanding  a 
State  statute  providing  that  a  non-resident  could  not  act  as  ad- 
ministrator; it  was  held,  that  an  administrator  there  appointed 
was  not  estopped  from  showing,  upon  an  application  for  a  re- 
moval, that  he  was  a  citizen  of  another  State.13  When  a  mort- 
gage bondholder  sued  for  a  foreclosure,  in  behalf  of  himself  and 
all  the  other  bondholders,  only  120  bonds  having  been  issued; 
and  the  latter,  who  had  not  been  made  parties,  the  complaint 
alleging  that  some,  but  not  all,  were  unknown  to  the  plaintiff, 
intervened  and  prayed  the  same  relief;  it  was  held,  that  all 
such  bondholders  were  indispensable  parties,  and  in  determining 
the  jurisdiction  of  the  court,  must  be  considered  to  be  upon  the 
same  side  as  the  plaintiff,  thus  compelling  a  dismissal  of  the 
suit.14  In  an  action  for  the  assignment  of  dower,  brought  in  a 
State  court  by  a  citizen  of  Illinois,  it  appeared  that  of  two  de- 
fendants who  were  in  possession  of  the  property,  one,  who  was 
a  citizen  of  New  York,  held  the  legal  title  as  trustee  for  his  co- 
defendant,  a  citizen  of  Illinois,  though  it  did  not  appear  that  he 
was  authorized  to  represent  his  interests  in  the  property  for  the 
purposes  of  the  suit.  It  was  held,  that  the  beneficiary  was  a 
necessary  party,  and,  being  a  citizen  of  the  same  State  as  plain- 
tiff, was  not  entitled  to  a  removal ;  and  that,  the  controversy  not 
being  separable,  the  trustee,  although  a  citizen  of  another  State, 
could  not  sustain  a  petition  for  removal.15 

§  45.  Controversies  to  which  aliens  are  parties.  The 
Judicial  Code  gives  the  District  Courts  original  jurisdiction 
of  all  suits  of  a  civil  nature,  at  common-law  or  in  equity,  where 
the  matter  in  controversy  exceeds,  exclusive  of  interest  and 
costs,  the  sum  or  value  of  three  thousand  dollars  and  "is  be- 
tween citizens  of  a  State  and  foreign  States,  citizens,  or  sub- 
jects."1 A  District  ( 'ourt  of  the  United  States  has  original 
jurisdiction  of  an  action  by  an  alien  against  a  citizen  and  resi- 

12  Wiggins  v.  Betlmne,  29  Fed.  .53  Fed.  513:  distinguishing  Stewart 
51:  Stout  v.  Kigney.  107  Fed.  545,  v.  Dunham.  115  V.  S.  61,  20  L.  ed. 
4<i   C.  C.  A.  450.  320. 

13  McDuflie  v.  Montgomery,  12S  is  Rand  v.  Walker,  117  U.  S.  340, 
Fed.  105.  20  L.  ed.  007. 

H  Mangels  v.  Donau  Brewing  Co.,  §  45.     1  §  24,  3G  St.  at  L.  1087. 


§  45] 


DIFFERENCE  OF  CITIZENSHIP. 


123 


dent  of  the  State  where  the  suit  is  brought ; 2  but  not,  except 
perhaps  in  patent,  copyright  and  trade-mark  eases,3  of  an 
action  by  an  alien  against  a  citizen  of  another  State,  who 
does  not  reside  within  the  district.4  A  citizen  of  one  of  the 
United  States  cannot  be  sued  by  an  alien  in  any  district  which 
he  does  not  inhabit.5  The  fact  that  the  alien  is  a  resident  of 
the  district  where  the  suit  is  brought  does  not  give  the  court 
jurisdiction  of  such  a  case.6  Where  no  Federal  question  was 
involved,  it  was  held  that,  when  the  defendants  are  citizens 
of  different  districts,  they  could  not  be  sued  by  an  alien  in  any 
one  of  them.7  An  alien  who  has  no  residence  within  the  United 
States  may  be  sued  by  a  citizen  of  one  of  the  United  States 
in  the  Federal  court  in  any  district  where  he  can  be  served 
with  process.8  So  it  has  been  held  in  suits  to  enjoin  the  in- 
fringement of  patents,9  as  well  as  in  other  cases;  and  even  when 
the  defendant  is  an  alien  corporation,  over  which  the  State 
statute  deprives  its  courts  of  jurisdiction;10  provided  that  it 
transacts  business  within  the  State,  but  not  otherwise;11  and 
also  when  the  plaintiff  is  a  citizen  and  resident  of  a  different 
State  from  that  where  the  suit  is  brought.12 

A  non-resident  alien  defendant  may  remove  a  suit  involving 
the  jurisdictional  amount  when  all  the  parties  on  the  opposite 
side  of  the  controversy  are  citizens  and  residents  of  the  same 
State  of  the  United  States  and  wThen  the  plaintiffs  reside  in 


2  Von  Thodorovich  v.  Franz  Josef 
Beneficial  Ass'n.,  (E.  D.  Pa.)  154 
Fed.  911. 

3  See  infra,  §  62. 

4  Galveston,  H.  &  S.  A.  Ry.  Co. 
v.  Gonzales,  151  U.  S.  496,  507,  38 
L.   ed.   248,   252;    Fribourg  v.   Pull- 


N.   C.)    176    Fed. 
Moody,    (D.   Or.) 


man  Co.,  (E.  D. 
981  ;  McAulay  v. 
185  Fed.  144. 

5  Ibid. 

6  Miller  v.  N.  Y.  Cent.  &  H.  R.  R. 
Co.,    (D.  Mass.)    147  Fed.  771. 

7  McAulay    v.    Moody,     (D.    Or.) 
185  Fed.  144. 

8/,'c   Hohorst,    150    U.   S.   653,   37 
L.   ed.    1211;    Barrow   S.   S.    Co.   v. 


Kane.  170  U.  S.  100,  42  L.  ed.  964; 
Carp  v.  Queen  Ins.  Co.,  168  Fed. 
782.  Contra,  Meyer  v.  Herrera,  (W. 
D.  Texas,  San  Antonio  Division)  41 
Fed.  65. 

9  United  Shoe  Mach.  Co.  v.  Du- 
plessis  Independent  Shoe  Mach.  Co., 
(D.  Mass.)    133  Fed.  930. 

10  Barrow  S.  S.  Co.  v.  Kane,  170 
U.  S.  100,  42  L.  ed.  964. 

11  Tierney  v.  Helvetia  Swiss  Fire 
Ins.  Co.,  163  Fed.  82. 

12  Barrow  S.  S.  Co.  v.  Kane.  170 
U.  S.  100,  42  L.  ed.  964;  Jarowski 
v.  Hamburg- American  Packet  Co., 
C.  C.  A.,  182  Fed.  320. 


124 


ORIGINAL    JURISDICTION. 


[§  45 


The  district  where  the  suit  is  brought ; 13  and  it  has  been  held 
when  they  reside  elsewhere.14  A  resident  alien  cannot  when 
no  Federal  question  is  involved.15  It  has  been  held,  that  when 
a  non-resident  alien  is  joined  as  a  defendant  with  a  non-resident 
citizen  of  a  different  State  from  that  of  a  resident  plaintiff, 
they  may  jointly  remove  the  case  if  the  jurisdictional  amount 
is  involved ; 16  but  this  cannot  be  done  when  the  plaintiff  is 
not  a  resident  of  the  State  where  the  suit  is  brought.17  The 
authorities  are  in  conflict  as  to  whether  a  defendant,  who  is  a 
citizen  and  resident  of  a  different  State  from  that  where  the 
suit  is  instituted,  can  remove  an  action  brought  by  an  alien  in. 
the  State  court.  The  preponderance  of  the  more  recent  au- 
thorities holds  that  he  cannot,  whether  the  alien  is  a  resident,18 
or  non-resident19  of  the  State  where  the  suit  is  brought. 


13  Cooler  v.  McArthur.  35  .Fed. 
372. 

14  Wind  Eiver  Lumber  Co.  v. 
Frankfort  Marine;  Accident  &  Plate 
Glass  Ins.  Co.,  C.  C.  A...  196  Fed. 
340. 

15  Johnson  v.  Monell,  Fed.  Cas. 
No.  7.399  (1  Woolw.  390)  ;  Sands 
v.  Smith,  Fed.  Cas.  No.  12.305  (1 
Abb.  U.  S.  368,  1  Dill.  290):  Cud 
ahy  v.  McGeoch.  37  Fed.  1:  Walker 
v.  O'Neill.  38  Fed.  374:  Eddy  v 
Casas,  118  Fed.  363:  Miller  v.  New 
York  Cent.  &  H.  E.  R.  Co..  147  Fed 
771:  Pvooker  v.  Crinkley,  113  N.  C 
73.  18  S.  E.  56. 

l6Ballin  v.  Lehr,  24  Fed.  193 
where  the  report  does  not  show 
whether  the  alien  was  a  resident  or 
a  nonresident :  Roberts  v.  Fac.  &  A. 
'Ry.  &  Nav.  Co.,  C.  C.  A.,  121  Fed. 
785.  58  C.  C.  A.  61,  affirming  104 
Fed.  577:  Ladew  v.  Tennessee  Cop- 
per Co..  179  Fed.  245.  See.  also, 
Rateau  v.  Bernard.  3  Blatchf.  244, 
Fed.  Cas.  No.  11.579.  Contra.  Tracy 
v.  Morel,  (D.  Nebraska)  SS  Fed. 
801. 

17  Carp  v.  Queen  Ins.  Co.  (W.  D. 
Mo.)    168  Fed.  782.     Contra,  Ladew 


v,    Tennessee    Copper    Co.,     (S.    D. 
Tenn.)    179  Fed.  245,  256. 

18  Kamenicky  v.  Catterall  Print- 
ing Co..  (S.  D."  New  York)  188  Fed. 
400;  Odbner  v.  Northern  Pac.  Ry. 
Go.,  (S.  D.  New  York)  188  Fed. 
507;  Sagara  v.  Chicago,  R.  I.  &  P. 
Ry.  Co.  (D.  Col.)  1S9  Fed.  220. 
These  cases  follow  the  analogy  of 
Ex  parte  Yvisner.  203  U.  S.  449,  51 
L.  ed.  264.  See.  also,  Petrocokino 
v.  Stuart.  Fed.  Cas.  No.  11.041: 
Matter  of  Tobin.  214  U.  S.  506,  53 
L.  ed.  1061.  Contra,  Uhle  v.  Burn- 
ham,  (S.  D.  N.  Y.)  42  Fed.  1  (resi- 
dence not  shown)  :  Stalker  v.  Pull- 
man's Palace  Car  Co.,  (S.  D.  Cal.) 
81  Fed.  989  (residence  not  shown)  ; 
Smellie  v.  Southern  Pac.  Co.,  (N. 
D.  Cal.)  197  Fed.  641  (residence 
not   shown). 

19  Harold  v.  Iron  Silver  Man.  Co., 
(D.  Col.)  33  Fed.  529:  Mahopoulus 
v.  Chicago,  R.  I.  &  Pac.  Ry.  Co., 
(W.  D.  Mo.)  167  Fed.  165;  Bagenas 
v.  Southern  Pac.  Co..  (N.  D.  Cal.) 
180  Fed.  S87:  Hall  v.  Great  North- 
ern Ry.  Co..  (D.  Montana)  197  Fed. 
488.  Contra,  Slier  wood  v.  Newport 
News  &  M.  Yal.  Co..    (W.  D.  Tenn.) 


45] 


DIFFERENCE  OF  CITIZENSHIP. 


125 


Where  an  alien  is  a  party  to  a  suit  in  a  District  Court  of  the 
United  States,  an  objection  to  the  jurisdiction  founded  upon 
residence  may  be  waived.20  Where  the  suit  is  originally 
brought  in  the  Federal  court,  the  plaintiff  by  suing  makes  such 
a  waiver  and  the  defendant  is  the  only  person  who  can  object  to 
the  jurisdiction  on  this  ground.21  Where  the  suit  is  originally 
brought  in  the  State  court,  the  defendant  by  the  removal  con- 
sents to  the  jurisdiction  of  the  court  of  the  United  States  and 
the  plaintiff  alone  can  make  such  an  objection.22 

A  District  Court  of  the  United  States,  where  no  Federal 
question  is  involved,  has  no  jurisdiction  of  an  action  brought 
by  an  alien  to  enforce  a  chose  in  action  that  has  been  assigned 
to  him,  unless  his  assignor  could  have  maintained  the  suit  upon 
the  ground  of  a  difference  of  citizenship.23 

The  District  Courts  of  the  United  States  can  obtain  no  juris- 
diction, either  originally  or  by  removal,  by  reason  of  a  diversity 
of  citizenship,  when  the  controversy  is  between  two  aliens ; 24 
nor  when  a  citizen  of  the  same  State  as  that  of  the  opposite 
party  is  on  the  same  side  of  the  controversy  as  an  alien ; 25  even 


55  Fed.  1 ;  Creagh  v.  Eq.  Life  Assur. 
Soc,  ( D.  Wash. )  83  Fed.  849  ;  Mor- 
ris v.  Clark  Constr.  Co.,  (D.  S.  C.) 
140  Fed.  756:  Iowa  Lillooet  Gold 
Min.  Co.  v.  Bliss,  (N.  D.  la.)  144 
Fed.  446;  Barlow  v.  Chicago  &  N. 
W.  Ry.  Co.,  (N.  D.  la.)  172  Fed. 
513;  H.  J.  Decker  Jr.  &  Co.  v. 
Southern  Pvy.  Co.,  (N.  D.  Ala.) 
189  Fed.  224;  Wind  River  Lumber 
Co.  v.  Frankfort  Marine,  Accident 
&  Plate  Glass  Ins.  Co.,  C.  C.  A.,  196 
Fed.  340. 

SO  Infra,  §  61. 

21 H.  J.  Decker  Jr.  &  Co.  v. 
Southern  Ry.  Co.,  189  Fed.  224. 
See  infra,  §  61. 

22  H.  J.  Decker  Jr.  &  Co.  v.  South- 
ern Ry.  Co.,  189  Fed.  224.  See  in- 
fra, §*61. 

23  Tierney  v.  Helvetia  Swiss  Fire 
Ins.  Co.,  (E.  D.  N.  Y.)  163  Fed. 
82.     See  infra,  §  61. 

24  Mobsman    v.   Higginson.   4   Dal- 


las, 12,  1  L.  ed.  720;  Montalet  v. 
Murray,  4  Cranch,  46,  2  L.  ed.  545; 
King  v.  Cornell,  106  U.  S.  395,  27 
L.  ed.  60;  Walton  v.  McNeil.  Fed. 
Cas.  No.  17,134;  Prentiss  v.  Bren- 
nan,  Fed.  Cas.  No.  11.385  (2 
Blatchf.  162)  ;  Rateau  v.  Bernard. 
Fed.  Cas.  No.  11,579  (3  Blatchf. 
244)  ;  Hinckley  v.  Byrne,  Fed.  Cas. 
No.  6.510  (1  Deady,  224);  Petro- 
cokino  v.  Stuart,  Fed.  Cas.  No. 
11,041;  Pooley  v.  Luco,  72  Fed. 
561;  Orosco  v.  Gagliardo,  22  CaL 
83;  Barrowcliffe  v.  La  Caisse  Gen- 
erale  (New  York),  58  How.  Prac. 
131.  Contra,  Liverpool,  B.  &  R.  P. 
Nav.  Co.  v.  Agar,  14  Fed.  615. 

25  Hervey  v.  Illinois  Midland  Ry. 
Co.,  Fed.  Cas.  No.  6,434  (7  Biss. 
103);  Watson  v.  Evers.  13  Fed. 
194;  People  v.  Eager,  20  CaL  167; 
Davis  v.  Cook,  9  New  134.  But  see 
Bell  v.  Ohio  Life  Ins.  Co.,  Fed.  Cas. 
No.  1.261. 


126 


ORIGINAL    JURISDICTION. 


[§  -±6 


if  the  controversy  is  separable ; 26  nor  can  they  obtain  jurisdic- 
tion when  a  State  and  an  alien  are  parties.27 

§  46.  Determination  of  Citizenship.  Natural  Persons. 
A  citizen  of  the  United  States  is  a  citizen  of  the  State  in  which 
he  permanently  resides  and  has  his  domicile.1  It  has  been  said 
that  a  person,  by  change  of  residence  to  a  foreign  country,  may 
cease  to  be  a  citizen  of  any  State  of  the  Union,  while  remain- 
ing a  citizen  of  the  United  States.2  The  exercise  of  the  right 
of  suffrage  by  a  citizen  of  the  United  States  is  conclusive  evi- 
dence of  his  citizenship.3  It  has  been  held,  that  voting  in  a 
party  primary,  and  membership  in  a  local  political  committee, 
are  not  conclusive  evidence  of  citizenship.4  Voting  is  not  in- 
dispensable to  establish  citizenship.5  It  lias  been  held,  that 
residence  alone,  which  is  not  shown  to  be  permanent,  is  not 
conclusive  of  citizenship,6  but  when  proved,  is  prima  facie  evi- 


2ffKing  v.  Cornell,  106  U.  S.  395, 
27  L.  ed.  60. 

WO'Cppor  v.  Texas.  202  U.  S. 
501,  50  L.  ed.  1120;  affirming  State 
v.  O'Connor,  73  S.  S.  1041,  06  Tex. 
484;  New  Jersey  v.  Babcoek,  Fed. 
Cas.  No.  10.163    (4  Wash.  344  i . 

§  46.  l  Shelton  v.  Tiffin,  6  How- 
ard, 163,  12  L.  ed.  387;  Reynolds 
v.  Adden.  136  U.  S.  348,  34  L.  ed. 
360;  Keinna  v.  Broekhaus.  5  Fed. 
762;  Winn  v.  Gilmer.  27  Fed.  817; 
McDonald  v.  Salem  Capital  Flour 
Mills  Co.,  31  Fed.  577,  12  Sawyer. 
402:  Cooper  v.  Galbraitli,  3  Wash. 
546 ;  Lessee  of  Butler  v.  Farns- 
worth,  4  Wash.  101,  1  Abb.  (U.  S.) 
211;  Burnham  v.  Rangeley,  1 
Woodb.  &  M.  7. 

2  Hammerstein  v.  Lyne,  200  Fed. 
165,   172.     See  supra,  §  40. 

3  Rabaud  v.  D'VYolf.  1  Paine.  580; 
Sanger  v.  Seymour.  25  Fed.  280 ; 
State  Sav.  Ass'n  v.  Howard.  31  Fed. 
433;  McDonald  v.  Salem  C.  F.  Mills 
Co..  31  Fed.  577;  Caldwell  v.  Firth, 
C.  C.  A..  01  Fed.  177:  Laws  v.  Flem- 
ing, 177  Fed.  450:  Thompson  v. 
Ward.  100  Fed.  861. 


*Gaddie  v.  Mann.  147  Fed.  955. 
A  declaration  by  a  single  man,  that 
he  intended  to  remain  upon  and  run 
a  ranch  in  one  State,  and  that  he 
intended  to  vote  at  a  presidential 
election,  although  he  subsequently 
said  that  he  did  not  vote  because 
he  was  not  a  citizen  of  that  State; 
were  held,  sufficient  to  establish  his 
change  of  residence  from  another 
State  to  that  where  the  ranch  was 
located,  he  having  led  '"a  sort  of 
nomadic  life.  But  for  the  last  two 
or  three  years  the  evidence  indi- 
cated very  clearly,  that  San  Anto- 
nio," a  city  in  such  State,  "was 
headquarters  and  the  place  of  resi- 
dence for  business  purposes  or 
pleasure."  Winn  v.  Gilmer,  27  Fed. 
817. 

5  Shelton  v.  Tiffin.  6  Howard,  163, 
1S5.  12  L.  ed.  387,  307;  Marks  v. 
Marks.  75  Fed.  321. 

6  Shelton  v.  Tiffin,  6  How.  (U. 
S.),  163,  185,  12  L.  ed.  387.  307; 
Lessee  of  Butler  v.  Farnsworth,  4 
Wash.  101,  1  Abb.  (U.  S.)  211; 
Chicago  &  X.  W.  R.  Co.  v.  Ohle,  117 
IT.  S.  123.  29  L.  ed.  837;  absence  at 


46] 


CITIZENSHIP. 


127 


school  does  not  constitute  a  change; 
Reynolds  v.  Adden,  13b'  U.  S.  348, 
352,  34  L.  ed.  300,  361  ;  Kemna  v. 
Brockhaus,  5  Fed.  702;  Woolridge 
v.  McKenna,  8  Fed.  650;  Sanger  v. 
Seymour,  25  Fed.  289;  McDonald 
v.  Salem  Capital  Flour-Mills  Co., 
31  Fed.  577,  12  Sawyer,  492;  Rivers 
v.  Bradley,  53  Fed.  305;  Chiatovich 
v.  Hanchett,  78  Fed.  193;  Alabama 
G.  S.  R.  Co.  v.  Carroll,  C.  C.  A.,  84 
Fed.  772,  28  C.  C.  A.  207;  Caldwell 
v.  Firth,  C.  C.  A.,  91  Fed.  177; 
Nichols  v.  Nichols,  92  Fed.  1;  Blair 
v.  Silver  Peak  Mines,  93  Fed.  332; 
denying  rehearing  84  Fed.  737; 
Hanchett  v.  Blair,  100  Fed.  817,  41 
C.  C.  A.  76;  Willingham  v.  Swift 
&  Co..  165  Fed.  223;  Harding  v. 
Standard  Oil  Co.,  182  Fed.  421; 
Sherman  v.  Southern  Pac.  Co.,  192 
Fed.  711;  Illinois  Life  Ins.  Co.  v. 
Shenehon,  109  Fed.  674,  where  the 
party  had  .no  dwelling  in  the  State 
of  which  she  was  held  to  be  a  citi- 
zen; but  had  stored  her  furniture 
therein,  while  she  was  absent  to 
attend  to  litigation  in  another 
State,  where  she  owned  property 
and  had  lived  before  her  marriage 
to  her  deceased  husband.  Adams  v. 
Shirk.  117  Fed.  801,  55  C.  C.  A.  25, 
payment  of  the  dues  of  a  resident 
member  in  two  clubs,  at  one  of 
which  the  party  had  a  room,  accom- 
panied by  the  maintenance  of  an 
office  in  the  same  city,  the  party's 
wife  being  absent  from  both  States, 
insufficient  to  constitute  a  change, 
Corel  v.  Chicago.  R.  I.  &  P.  Ry.  Co., 
123  Fed.  452;  filing  a  homestead 
claim,  and  the  construction  of  a 
house  on  the  land  where  another 
family  lived,  accompanied  by  sev- 
eral visits  to  the  Territory,  remain- 
ing as  long  as  two  months  there  at 
one  time,  is  insufficient.  Pond  v. 
Vermont  Valley  R.  Co.,  12  Blatchf. 


280,  293;  Reckling  v.  McKinstiv, 
185  Fed.  842,  holding:  that  defend- 
ant had  changed  his  citizenship  to 
a  State  where  he  had  lived  for  more 
than  a  year,  under  an  express  in- 
tention to  make  his  home  there,  had 
engaged  in  business,  leased  business 
property,  bought  a  home,  joined  a 
chamber  of  commerce,  and  paid  the 
poll-tax,  although  in  his  affidavit  he 
stated  that  he  "is  not  determined  to 
make  this  his  home,  or  to  become  a 
citizen  of  this  state,  but  is  serious- 
ly considering  the  advisability  of 
moving  back  to  his  home  in"  an- 
other State.  In  Laws  v.  Fleming, 
177  Fed.  450,  453,  the  deposition  of 
the  plaintiff  in  another  suit  in  a 
State  court,  where,  in  answer  to  the 
question  "When  did  you  first  make 
Fairmont  your  home?"  he  had  re- 
plied, "About  the  first  of  the  year;" 
was  not  conclusive  against  his  affi- 
davit that  he  was  a  registered  voter, 
paid  a  poll-tax,  and  had  a  fur- 
nished house  temporarily  closed  in 
another  State,  but  that  because  of 
his  connection  with  the  building  of 
a  railroad  he  had  temporarily  re- 
sided in  Fairmont  with  no  inten- 
tion of  establishing  his  business 
there.  In  Harton  v.  Howley.  155 
Fed.  491,  a  married  man  had  left 
his  wife  and  child  in  a  house  built 
by  his  wife,  in  one  State,  where  he 
usually  spent  Sunday,  paid  taxes 
and  voted  when  he  last  exercised 
the  right  of  suffrage;  it  was  held, 
that  he  had  not  changed  his  citizen- 
ship therefrom;  although  for  two 
years  he  had  been  engaged  in  busi- 
ness in  another  State  and  lived 
there,  occupying  a  room  in  a  hotel 
throughout  the  week,  and  testified 
that  he  was  a  resident  of  the  latter 
State.  In  Jones  v.  Subera,  150  Red. 
402.  a  single  man  had  transacted 
business    and    occupied    rooms    in    a 


128 


OKIGINAL    JURISDICTION. 


[§    46 


deuce  thereof.7  It  has  been  held :  that  the  acceptance  and  dis- 
charge of  the  duties  of  receiver  of  a  railroad,  within  a  State, 
•does  not  constitute  a  change  of  citizenship.8  A  State  statute, 
providing  that  a  non-resident  cannot  act  as  an  administrator,  does 
not  make  an  administrator  appointed  therein  a  citizen  of  the 
State;  but  the  jurisdiction  of  the  Circuit  Court  of  the  United 
States  is  determined  by  his  actual  citizenship,  notwithstanding 
his  appointment.9  A  statement  in  a  document  signed  by  him. 
that  a  person  is  "of"  a  specified  State,  is  evidence  that  he  is  a 
citizen  of  the  same; 19  but  does  not  estop  him  from  proving  the 
contrary.11  It  has  been  held :  that  a  husband  and  wife,  who 
are  not  living  apart  under  a  legal  separation,  cannot  be  citizens 
of  different  States.12  Upon  the  insanity  of  a  husband,  and  his 
■confinement  in  an  asylum,  his  wife  becomes  the  head  of  the 
family,  and  may  change  the  place  of  residence  to  another  State, 


State  for  more  than  two  years,  and 
had  described  himself  in  convey- 
ances  therein  as  a  resident  thereof; 
it  was  held,  that  he  was  a  citizen 
■of  that  State;  although  he  testified, 
that  during  all  that  time  he  had 
maintained  a  home  in  the  State  of 
his  former  citizenship  and  expected 
to  return  thereto  when  his  business 
affairs  in  the  other  State  were  con- 
cluded. In  Thompson  v.  Ward,  199 
Fed.  861,  863,  the  defendant  was 
served  within  the  State  and  his  wife 
then  stated  that  they  intended  to 
move  to  another  State.  lie  did  not. 
when  served,  make  any  statement 
concerning  his  residence,  but  subse- 
quently filed  an  affidavit  making  a 
general  statement  that  he  resided 
and  was  ;1  citizen  of  another  State. 
Two  others,  residents  of  another 
State,  made  affidavits  that  he  had 
moved  his  household  goods  from  the 
State  where  he  was  served  prior  to 
tin-  commencement  of.  the  suit  and 
that  he  was  not  a  citizen  of  [ova, 
Imt  that  his  headquarters  had  been 
in  the  other  State  until  recently, 
when     he    had    been    transferred    to 


another  place  in  the  same  State, 
t  where  he  was  now  temporarily  lo- 
cated. It  was  proved  that,  at  the 
last  general  election,  he  had  voted 
in  the  State  where  he  w?as  served. 
ffehl  that  the  evidence  was  insuffi- 
cient to  show  that  he  was  a  citizen 
of  any  other  State.  Stoker  v.  Leav- 
enworth, 7  La.  0.  S.  390,  holding 
that  army  officers,  stationed  on  duty 
in  a  State,  did  not  become  citizens 
there;  Guarantee  Co.  of  North 
America  v.  First  Xat.  Bank  (Vir- 
ginia), 2S  S.  E.  909,  absence  while 
in  a  penitentiary  is  insufficient. 

'  Kemnn  v.  Brockhaus,  5  Fed. 
762:    Eisele  v.  Oddie,  128  Fed.  941. 

8  Brisenden  v.  Chamberlain,  53 
Fed.  307. 

9McDuffie  v.  Montgomery,  128 
Fed.  105. 

lOPviicker  v.  Bolles,  C.  C.  A.,  80 
Fed.  504. 

"Reynolds  v.  Adden.  136  U.  S. 
348:  rilinois  Life  Ins.  Co.  v.  She- 
nehon.  109  Fed.  674. 

12  Poppenhauser  v.  India  Rubber 
Comb  Co..  14  Fed.  707:  Hatch  v. 
Pereusdn,   57    Fed.   959:    Nichols   v. 


§  46] 


CITIZENSHIP. 


129 


although  her  husband  remains  in  confinement  in  the  State  where 
they  formerly  were  citizens  and  domiciled.13  It  has  been  said: 
that  a  minor  cannot  acquire  a  separate  domicile  from  that  of 
his  father  during  the  latter's  life,  except  by  the  emancipation 
of  the  child  and  a  complete  surrender  of  the  parental  control  as 
to  the  choice  of  domicile.14  "When  a  young  man  leaves  the 
parental  home,  and  strikes  out  into  the  world;  goes  to  another 
State ;  engages  in  business  for  a  considerable  length  of  time — 
the  natural  inference  would  be  that  he  intended  to  build  him- 
self a  new  home,  and  domicile  in  the  State  where  he  had  taken 
up  his  residence.  So,  likewise,  if  a  man  of  years,  overtaken  by 
misfortune — perhaps  reduced  from  luxury  to  penury  and 
want — with  no  family  ties  to  bind  him,  and  the  home  of  former 
years  has  passed  from  him,  and  from  under  his  control,  in  the 
desperation  of  his  situation  abandons  the  State  where  these  mis- 
fortunes have  overtaken  him,  and  remains  away  for  a  term 
of  years — enters  into  the  business  of  life  with  a  residence  in 
a  neighboring  State — the  inference  would  naturally  arise  that 
he  had  no  desire  or  intention  of  longer  remaining  in  the  locality 
of  all  his  misfortunes." 15 

When  the  permanent  residence  and  citizenship  of  a  party, 
at  a  date  shortly  before  the  beginning  of  the  suit,  is  proved, 
the  presumption  is  that  the  same  continues  until  there  is  proof 
of  a  change.16  There  is  no  presumption  that  the  president  of 
a  corporation  is  a  citizen  of  the  State  that  chartered  it.17  An 
intention  to  return  unaccompanied  by  acts  does  not  restore  the 
former  residence  after  it  has  been  actually  changed.18     "A  man 


Nichols,  92  Fed.  ]  ;  Thompson  v. 
Stalmann.  139  Fed.  93.  See  Comitis 
v.  Parkerson,  56  Fed.  556,  22  L.R.A. 
148;  Jennes  v.  Landes,  85  Fed.  801. 
Contra,  Town  of  Watertown  v. 
Greaves,  C.  C.  A..  112  Fed.  183; 
Gordon  v.  Yost,  140  Fed.  79. 

l3MoT\night  v.  Dudley,  C.  C.  A., 
148  Fed.  204. 

14  Wool  ridge  v.  McKenna,  8  Fed. 
050;  where  the  father,  after  the 
mother's  death,  had  placed  the  child 
in  question  under  the  permanent 
care  of  her  aunt  at  the  latter's  resi- 
dence in  another  State. 

Fed.  Prac.  Vol.  I.— 9. 


15  Winn  v.  Gilmer,  27  Fed.  817, 
818,  819. 

16  Heath  v.  Austin,  Fed.  (as.  Xo. 
6.305  (12  Blatchf.  320);  Collins  v. 
City  of  Ashland,  112  Fed.  175. 

17  Utah-Nevada  Co.  v.  DeLamar, 
C.  C.  A.,  133  Fed.  113.  But  ?ee 
Thomson-Houston  El.  Co.  v.  Elec- 
trose  Mfg.  Co.,  155  Fed.  543:  infra, 
§   61. 

18  Pacific  M.  L.  I.  Co.  v.  Tomp- 
kins, C.  C.  A.,  101  Fed.  539. 


130 


ORIGINAL    JURISDICTION. 


[§  46 


may  reside  in  a  State  for  an  indefinite  period  of  time  without 
becoming  a  citizen,  but  the  moment  a  man  takes  up  his  resi- 
dence in  a  State  different  from  that  where  he  formerly  was 
domiciled  or  was  a  citizen,  with  intent  and  purpose  of  making 
the  new  place  of  residence  his  future  permanent  home,  that 
moment  he  loses  his  former  domicile,and  becomes  domiciled  in 
the  new  place;  or,  in  other  words,  he  ceases  to  be  a  citizen  of 
the  former  place  of  residence,  and  becomes  a  citizen  of  the 
State  of  his  adoption."  19 


19  Winn  v.  Gilmer,  27  Fed.  817; 
Kemna  v.  Brockhaus,  5  Fed.  762, 
7*5.3,  704,  766,  767,  per  Dyer,  J.: 

"The  general  rule  upon  the  sub- 
ject of  citizenship  is  well  settled. 
It  is  that,  'in  order  to  give  juris- 
diction to  the  courts  of  the  United 
States,  the  citizenship  of  the  party 
nm>t  be  founded  on  a  change  of 
domicile,  and  permanent  residence 
in  the  State  to  which  he  may  have 
removed  from  another  State.  Mere 
residence  is  prima  facie  evidence  of 
such  change,  although  when  it  is 
explained  and  shown  to  have  been 
for  temporary  purposes,  the  pre- 
sumption is  destroyed.  The  inten- 
tion is  to  be  collected  from  acts.' 
Lessee  of  Butler  v.  Farnsworth,  4 
Wash.  101,  1  Abb.  (U.  S.),  211.  'If 
a  citizen  of  one  State  think  proper 
to  change  his  domicile,  and  to  re- 
move himself  and  family 
into  another  State,  with  a  bona  fide 
intention  of  abandoning  his  former 
place  of  residence,  and  to  become  an 
inhabitant  or  resident  of  the  State 
to  which  he  removes,  he  becomes, 
immediately  upon  such  removal,  ac- 
companied with  such  intention,  a 
resident  citizen  of  that  State  within 
the  meaning  of  the  provision  of  the 
Constitution  relative  to  the  jurisdic- 
tion of  the  Federal  courts,  and  may 
maintain  an  action  in  the  Circuit 
Court    of    the    State    which    he    has 


abandoned.  .  .  .  Time  in  rela- 
tion to  his  new  residence,  occupa- 
tion, a  sudden  removal  back  after 
instituting  a  suit,  and  the  like,  are 
circumstances  which  may  be  relied 
upon  to  show  that  his  first  removal 
was  not  buna  fide  or  permanent,  but 
will  not  disprove  his  citizenship  in 
the  place  of  his  new  domicile,  if  the 
jury  are  satisfied  that  his  first  re- 
moval was  bona  fide  and  without 
an  intention  of  returning."  Cooper 
v.  Galbraith,  3  Wash.  564.  'If  there 
lias  been  an  actual  removal,  with 
intent  to  make  a  permanent  resi- 
dence, and  the  acts  of  the  party 
correspond  with  the  purpose,  the 
change  of  domicile  is  completed, 
and  the  law  forces  upon  him  the 
character  of  a  citizen  of  the  State 
where  he  has  chosen  his  domicile.' 
Butler  v.  Farnsworth.  supra.  A 
temporary  return  to  one's  former 
place  of  residence,  with  views  and 
for  objects  merely  temporary,  does 
not  revive  a  former  citizenship. 
Burnham  v.  Rangely.  1  Woodb.  & 
M.  7.  'If  the  change  of  residence 
or  citizenship  is  apparent  only,  and 
there  has  been,  in  fact,  no  change  of 
residence,  but  only  transfer  of  ap- 
parent residence,  animo  rerertendi, 
to  give  color  of  jurisdiction  in  a 
suit  in  the  State  of  actual  resi- 
dence, it  may  not  avail ;  but.  where 
there    is    an    actual    change    of    resi- 


46] 


CITIZENSHIP. 


131 


The  filing  of  a  declaration  of  his  intention  to  become  a  citi- 
zen of  the  United  States  does  not  terminate  a  party's  alienage, 
although  he  is  permitted  by  the  laws  of  the  State  of  his  resi- 
dence to  vote  and  hold  office  there.20  When  a  naturalized  citi- 
zen took  an  oath  of  allegiance  to  the  sovereign  of  a  foreign 
county,  of  whom  he  had  never  been  a  subject,  and  accepted  from 
that  King  an  appointment  as  consul,  but  continued  to  reside  in 
the  United  States ;  it  was  held,  that  he  remained  an  American 
citizen,  and  could  not  remove  a  case  because  of  alienage.21  It 
was  held,  that  the  marriage,  in  the  United  States  of  a  citizen 
thereof  to  a  foreign  subject,  with  whom  she  lived  in  the  United 
States  until  his  death,  did  not  make  her  an  alien,  although  her 
husband  was  never  naturalized.22  A  citizen  of  Cuba  is  an  alien, 
and  may  sue  in  a  Circuit  Court  of  the  United  States,  or  may 
remove  to  such  court  a  suit  brought  against  him,  in  the  cases 
in  which  an  alien  might  so  sue  or  remove.23  The  fact  that  a 
plaintiff  has  changed  his  residence  and  citizenship,  for  the  pur- 
pose of  bringing  suit  in  the  Federal  court,  does  not  divest  it  of 
jurisdiction  if  the  change  has  been  actually  made,24  without  any 


dence  and  citizenship  before  suit 
brought,  the  motive  to  such  change 
is  not  material,  even  if  it  was  a 
desire  to  give  capacity  to  sue  in  the 
courts  of  the  United  States.'  Pond 
v.  Vermont  Valley  R.  Co.,  12 
Blatchf.  293.  So.  to  effect  a  change 
of  citizenship  from  one  State  to  an- 
other, there  must  be  an  actual  re- 
moval, an  actual  change  of  domicile, 
with  a  bona  fide  intention  of  aban- 
doning the  former  place  of  residence 
and  establishing  a  new  one,  and  the 
acts  of  the  party  must  correspond 
with  such  purpose.  .  .  .  The 
question  is  one  of  mixed  law  and 
fact.  ...  It  is  apparent  that 
the  circumstance  of  the  plaintiff's 
return  to  Milwaukee  in  December 
was  one  which  if  unexplained,  would 
tend  to  throw  doubt  upon  the  per- 
manency of  the  alleged  settlement 
in  Minnesota.  But  if  her  return 
was  for  an  object  merely  tempora- 
ry,  as   she   alleges,   then   her   domi- 


ciliary stains  in  that  State  would 
not  be  affected."  See  Adams  v. 
Shirk.  C.  C.  A.,  117  Fed.  801. 

20Baird  v.  Byrne,  Fed.  Cas.  Xo. 
757  (3  Wall.  Jr.  1);  Maloy  v.  Du- 
den.  25  Fed.  673;  Creagh  v.  Equita- 
ble Life  Assur.  Soc.  88  Fed.  1  :  Lanz 
v.  Randall,  4  Dill.  425;  Orosco  v. 
Gagliardo.  22  Cal.  83. 

21  Fish  v.  Stoughton   (New  York), 

2  Johns.  Cas.  707. 

22  See  Comitis  v.  Parkerson.  56 
Fed.  556,  22  L.R.A.  148. 

23  Betancpurt  v.  Mutual  Reserve 
Fund  Life  Ass'n,  101  Fed.  305: 
Davis   v.   Dixon.   184   Fed.   500. 

24  Briggs  v.  French,  2  Sumn.  251, 
255,  250;  Catlett  v.  Pacific  Ins.  Co.. 
1   Paine,   594:    Cooper  v.  Galbraith, 

3  Wash.  C.  C.  546,  553;  Case  v. 
Clarke.  5  Mason.  70:  Robertson  v. 
Carson.  19  Wall.  04,  100.  22  L.  ed. 
178,  180:  Wiemer  v.  Louisville 
Water  Co.,  130  Fed.  244. 


132 


ORIGINAL    JURISDICTION. 


[§  46 


intention  to  return.  It  has  been  held  that  a  party  may  testify 
that  up  to  a  certain  date  he  was  a  citizen  of  a  specified  State, 
and  that  others  cannot,  but  must  confine  their  testimony  to  facts 
from  which  his  citizenship  can  be  inferred.26 

An  allegation  that  a  party  is  "a  citizen  of  London,  England," 
was  held,  to  be  insufficient  to  show  that  he  wTas  an  alien.27  But 
the  averment  that  the  complainants  were  "all  of  Cognac,  France, 
and  citizens  of  the  Republic  of  France,"  was  held  to  be  suffi- 
cient.28 Where  plaintiffs  sued  as  executors ;  it  was  held  to  be 
insufficient  to  allege  "that  said  plaintiffs,  as  such  executors,  are 
citizens  of  the  State  of  New  York ;" 29  but.  it  was  held,  to  be 
sufficient  to  allege  that  the  defendants,  "as  they  are  the  qualified 
executors  of  the  last  wrill  and  testament  of  James  Brown,  de- 
ceased, were,  each  and  all,  at  the  time  of  the  commencement  of 
this  suit,  and  still  are,  citizens  of  the  State  of  Xew  York;  and 
that  the  defendant  John  S.  Schultze,  also  a  qualified  executor 
of  the  last  will  and  testament  of  James  Brown,  deceased,  was 
then,  and  still  is,  a  citizen  of  the  State  of  New  Jersey."  30 

It  has  been  held :  that  an  allegation  that  the  plaintiff  was  a 
citizen  of  the  United  States,  and  a  resident  of  a  specified  State 
therein,  was  sufficient,  in  view  of  the  Fourteenth  Amendment, 
to  show  that  he  was  a  citizen  of  such  State.31  The  fact  that  a 
plaintiff  has  changed  his  residence  and  citizenship  for  the  pur- 
pose of  bringing  suit  in  the  Federal  court  does  not  divest  the 
jurisdiction  if  the  change  has  actually  been  made32  without 
anv  intention  to  return.33     It  has  been  held :  that  where  the 


25  Morris  v.  Gilmer.  129  U.  P. 
315.  32  L.  ed.  000:  Kin?  v.  U.  S..  5Si 
Fed.  0:  Kinsman  v.  Holthaus.  50 
Fed.  305;  Allen  v.  So.  Cal.  Ry.  Co.. 
70  Fed.  370:  Chambers  v.  Prince, 
75  Fed.  170:  Ala.  G.  S.  R.  Co.  v. 
Carroll.  C.  C.  A..  84  Fed.  772. 

26Kucker  v.  Bolles,  C.  C.  A.,  80 
Fed.  504. 

27  Stuart  v.  Faston,  156  U.  S.  4G. 
30  L.  ed.  341.  Cf.  Rondot  v.  Tp.  of 
Rogers,  C.  C.  A.,  70  Fed.  670: 
Jennes  v.  Landes.  84  Fed.  73:  s.  c, 
85  Fed.  801.  But  see  Betancourt  v. 
Mutual  R.  F.  L.  Ass'n.  101  Fed. 
305. 


28  Hennessy  v.  Richardson  Drug 
Co..  ISO  V.  S.  25,  47  L.  ed.  007. 

29Amory  v.  Amory,  95  U.  S.  180. 
24  L.  ed.  428. 

30  Cooke  v.  Seligman.  7  Fed.  203. 

31  Clausen  v.  American  Tee  Co., 
144  Fed.  723. 

82Brigg's  v.  French,  2  Sumn.  251, 
255.  250:  Catlett  v.  Pacific  Ins.  Co., 
1  Paine.  504;  Cooper  v.  Galbraith, 
3  Wash.  C.  C.  546,  553;  Case  v. 
Clarke.  5  Mason.  70:  Rohertson  v. 
Carson.  10  Wall.  94,  106,  22  L.  ed. 
178.  180. 

33  Morris  v.  Gilmer.  120  U,  S.  315, 
32  L.  ed.  000;    Ala.  G.  S.  R.  Co.  v. 


47] 


CORPORATIONS. 


133 


plaintiff  alleges  that  lie  is  a  citizen  of  a  certain  State,  and  that 
fact  is  denied,  the  burden  of  proof  is  upon  the  defendant. 

8  47    Corporations.     For  the  purposes  of  the  jurisdiction 
of  a  District  Court  of  the  United  States,  either  originally  or 
upon  removal,  a  corporation  is  treated  as  if  it  were  a  citizen  oi 
the  State,  by  or  under  the  laws  of  which  it  was  chartered;  or 
as  is  generally  said,  it  is  conclusively  presumed  to  be  composed 
of  the  citizens  of  such  State.1     The  same  presumption  exists  as 
regards  a  corporation  chartered  by  or  under  the  laws  of  a  foreign 
country.2     Where,  however,  stockholders  in  a  corporation  are 
themselves  joined  with  or  against  it  as  parties  to  a  suit    the 
presumption  does  not  extend  to  them  in  their  individual  ca- 
nacitv,  although  it  still  exists  so  far  as  the  corporation  is  con- 
cerned 3     The  location  of  the  principal  or  usual  place  oi  busi- 


Carroll,  C.  C.  A.,  84  Fed.  772;  King- 
man v.  Holthaus,  59  Fed.  305;  King 
v.  U.  S.,  59  Fed.  9;  Chambers  v. 
Prince,  75  Fed.  176;  Allen  v.  So. 
Cal.  Ry.  Co.,  70  Fed.  370. 

34  Gilmer  v.  Grand  Eapids,  16 
Fed.  70S;  Foster  v.  Cleveland,  C, 
C.  &  St.  L.  Ry.  Co.,  56  Fed.  434; 
Sheppard  v.  Graves,  14  How.  505, 
14  L.  ed.  518;  Nat.  M.  Ace.  Ass'n 
v.  Sparks,  C.  C.  A.,  83  Fed.  225; 
Adams  v.  Shirk.  117  Fed.  801,  55 
C.  C.  A.  25;  Hill  v.  Walker,  C.  C. 
A„  167  Fed.  241. 

§  47.     1  Louisville,  C.  &  C.  P.  Co. 
V.  Letson,  2  How.  497,  11  L.  ed.  353: 
Marshall  v.  Baltimore  &  O.  R.  Co., 
16  How.  314,  14  L.  ed.  953;  Muller 
v.  Dows,  94  U.  S.  446.  24  L.  ed.  208; 
Steamship  Co.  v.  Tugman,  106  U.  S. 
118;   St.  Louis  &  St.  F.  Ry.  Co.  v. 
James,  161  IX  S.  545,  562,  40  L.  ed. 
802,  808;   Southern  Ry.  Co.  v.  Alli- 
son. 19Q  l".  S.  326,  47  L.  ed.  1078; 
Barney  v.  Globe  Bank,  Fed.  Cas.  No. 
i,031  '  (5    Blatchf.    107)  :    Terry    v. 
Imperial    Fire    Ins.    Co.,    Fed.    <  as. 
No.    13,838     (3    Dill.    408)  ;    Purccll 
v.  British  Land  &   Mortgage  Co..  42 
Ted.  465;  Western  Union  Tel.  Co.  v. 
Dickinson,   40  Ind.   444:    Stanley   v. 


Chicago,  R.  I.  &  P-  Ry-  Co.,  62  Mo. 
508 ;  Barrowcliffe  v.  La  Caisse  Gen- 
erate des  Assurances  Agricoles  et 
des  Assurance  Contre  LTncendie 
(New  York),  1  City  Ct.  R.  151: 
Shelby  v.  Hoffman  (Ohio).  7  Ohio 
St.  451;  Fox  v.  American  Casualty 
&  Securitv  Co.  (Pennsylvania).  12 
Pa.  Co.  Ct.  R.  207,  2  Pa.  Dist.  R. 
158.  See  State  corporation  as  party 
in  Federal  courts,  by  Judge  F.  E. 
Baker,  13  Am.  Law  Review,  7. 

2  Merchants'  Cotton-Press  &  Stor- 
age Co.  v.  Insurance  Co.  of  North 
America,  151  U.  S.  368,  3S  L.  ed. 
195;  Terry  v.  Imperial  Fire  Ins.  Co., 
Fed.  Cas." No.  13,838  (3  Dill.  408)  : 
Purcell  v.  British  Land  &  Mortgage 
Co.,  42  Fed.  465;  Barrowcliffe  v.  La 
Caisse  Generale  des  Assurances 
Agricoles  et  des  Assurance  Contre 
LTncendie  (New  York),  1  City  Ct. 
R.  151;  Baumgarten  v.  Alliance 
Assur.  Co.,  153  Fed.  301. 

3  Dodge  v.  Woolsey,  18  How.  331, 
15  L.  ed.  401:  Bacon  v.  Robertson, 
18  How.  480,  15  L.  ed.  499;  Doctor 
v.  Harrington.  196  U.  S.  579,  49 
L.  ed.  6(16:  Hanchett  v.  Blair.  100 
Fed.  S17.  41  C.  C.  A.  76:  Dodd  v. 
Louisville  Bridge  Co.,  130  Fed.  186; 


134 


ORIGINAL    JURISDICTION. 


IS  47 


ness  of  the  corporation  is  immaterial ; 4  even  if  all  of  its  busi- 
ness is  transacted,  and  all  of  its  offices  and  places  of  business 
are  situated,  outside  of  the  State  where  it  was  chartered;5  and 
although  it  was  organized  for  the  purpose  of  doing  business  in 
other  States.6  ]STo  such  presumption  exists  in  the  case  of  a 
corporation  which  it  is  proved  was  organized  for  the  sole  pur- 
pose of  bringing  a  controversy,  in  which  its  members  were  inter- 
ested, within  the  jurisdiction  of  a  District  Court  of  the  United 
States.7  But  where  it  appeared  that,  for  several  years  prior 
to  the  suit  in  the  Federal  court,  the  original  owner  had  dis- 
cussed with  counsel  the  advisability  of  conveying  the  land  in 
question  to  a  corporation,  in  order  to  be  able  to  avoid  individual 
liability  for  money  borrowed  to  use  in  its  improvement ; 8  and 
where  the  property  affected  by  the  litigation  was  a  small  portion 
of  that  conveyed  to  the  corporation ;  it  was  held :  that  the  fact 
that  the  sole  consideration  for  the  transfer  was  the  stock  of  the 
company,  which  had  no  other  assets  than  that  received  from 
the  grantors,  whose  citizenship  was  not  diverse  from  that  of  the 
defendants,  did  not  prevent  the  maintenance  of  the  suit  by  the 
corporation  in  a  Federal  Court.9  Ko  such  presumption  exists 
in  the  case  of  a  de  facto  corporation,  which  never  acquired  a 
legal  existence.10      A  municipal  corporation,  such  as  a  city,11 


1'tah-Xevada  Co.  v.  De  Lamar,  133 
Fed.  113,  66  C.  C.  A.  179. 

4  Phinizy  v.  Augusta  &  K.  R.  Co., 
56  Fed.  273;  United  States  v.  S.  P. 
Shotter  Co.,   110  Fed.   1. 

5  Pacific  R.  R.  v.  Missouri  Pac. 
Ry.  Co.,  23  Fed.  565. 

6  P>aughman  v.  National  Water- 
works Co.,  46  Fed.  4. 

7  Lehigh  Mining  &  Mfg.  Co.  v. 
Kelly,  160  U.  S.  327,  336,  40  L.  ed. 
44 1.  447:  Miller  &  Lux  v.  East  Side 
Canal  &  Irrigation  Co.,  211  U.  S. 
293.  53  L.  ed.  189;  Southern  Realty 
Investment  Co.  v.  Walker,  211  U.  S. 
603,  53  L.  ed.  346;  Gelders  v.  Hay- 
good.  182  Fed.  109,  directing  the 
disbarment  of  the  attorneys  unless 
within  sixty  days  they  dissolve  the 


corporation  and  dismiss  all  suits 
brought  in  its  name.  See  Kreider 
v.  Cole,  C.  C.  A.,  149  Fed.  647; 
§  363.  infra. 

8  Irvine  Co.  v.  Bond,  74  Fed.  849. 

9  Slaughter  v.  Mallet  Land  &  Cat- 
tle Co.,  C.  C.  A.,  141  Fed.  282. 

lOGastonia  Cotton  Mfg.  Co.  v.  W. 
L.  Wells  Co.,  128  Fed.  369,  63  C. 
C.  A.  Ill;  reversing  118  Fed.  190; 
Cowles  v.  Mercer  County.  7  Wall. 
118.  19  L.  ed.  S6;  Ysleta  v.  Cauda, 
67  Fed.  6 ;  Loeb  v.  Trustees  of  ( 'o- 
lumbia  Tp..  Hamilton  County.  Ohio, 
91  Fed.  37;  New  Orleans  v.  Shep- 
pard.  10  La.  Ann.  268. 

"  Ysleta  v.  Canda,  67  Fed.  6; 
New  Orleans  v.  Sheppard.  10  La. 
Ann.  268. 


§  47] 


CORPORATIONS. 


135 


a  township,12  or  a  county,13  or  a  public  board,  composed  of 
public  officers,  which  has  been  created  a  corporation  by  the 
State  laws,14  is  considered  to  be  a  citizen  of  the  State  within 
which  it  is  situated,  or  to  be  composed  of  citizens  of  that  State. 
An  averment  that  the  Board  of  Trustees  of  a  State  University 
was  created  by  and  exists  under  and  by  virtue  of  the  law  of  a 
State,  with  authority  to  sue  and  be  sued  and  to  make  and  to 
use  a  common  seal,  without  any  allegation  that  it  was  a  cor- 
poration created  by  and  existing  under  the  laws  thereof,  was 
held  to  be  insufficient  to  sustain  the  jurisdiction  of  the  State 
court  on  the  ground  of  diverse  citienship,  where  the  citizenship 
of  the  trustees  did  not  appear.15  A  national  banking  associa- 
tion, so  far  as  the  jurisdiction  of  the  Federal  courts  is  con- 
cerned, stands  in  the  same  position  as  a  citizen  of  the  State 
in  which  it  is  located.16  Where  a  corporation,  originally 
created  in  one  State,  afterwards  becomes  compulsorily  a  cor- 
poration of  another  State,  in  order  to  extend  its  powers, 
and  it  is  engaged  in  interstate  commerce;  it  is  treated,  for  the 
purpose  of  jurisdiction,  as  composed  of  citizens  of  the  State 
which  first  gave  it  corporate  existence ; 17  but  it  was 
said  that  unless  the  case  arises  under  the  Constitution 
and    laws    of    the    United    States,    the    Federal    court    can- 


is  Loeb  v.  Trustees  of  Columbia 
Tp.,  Hamilton  County,  Ohio,  91 
Fed.  37. 

13  ('owles  v.  Mercer  County,  7 
Wallace.  118,  19  L.  ed.  8(5. 

14  Thomas  v.  Board  of  Trustees, 
195  U.  S.  207. 

is  Thomas  v.  Board  of  Trustees, 
195   C.  S.  207,  49  L.  ed.  100. 

16  24  St.  at  L.  p.  554;  Petri  v. 
Commercial  Nat.  Bank,  142  U.  S. 
644.  35  L.  ed.  1144:  First  Nat.  Bank 
v.  Forest.  40  Fed.  705;  Farmers' 
Nat.  Hank  v.  McElhinney,  42  Fed. 
801  ;  supra,  §  28. 

17  St.  Louis  &  St.  F.  Ry.  Co.  v. 
James.  1(11  U.  S.  545.  40  L.  ed.  802: 
Louisville,  X.  A.  &  C.  Ry.  Co.  v. 
Louisville  Trust  Co.,  174  U.  S.  552, 
4.'?  L.  ed.  1081  ;  Southern  Ry.  Co.  v. 
Allison.    190    TJ.    S.    326,    47    L.    ed. 


1078:  reversing  129  N.  C.  336.  40 
S.  E.  991:  Callahan  V.  Louisville 
&  N.  R.  Co.,  11  Fed.  536:  Missouri 
Rac.  Ry.  Co.  v.  Castle.  224  U.  S. 
541,  56  L.  ed.  875;  Atlantic  Coasf 
Line  R.  Co.  v.  Dunning,  C.  C.  A., 
166  Fed.  S50:  St.  Louis  &  S.  F.  R. 
Co.  v.  Cross.  171  Fed.  480;  Cum- 
mins v.  Chicago,  B.  &  Q.  R.  Co.,  193 
Fed.  238:  Wilson  v.  Southern  Ry. 
Co.  (North  Carolina).  36  S.  F.  Rep. 
701,  (overruling:  Debnam  v.  South- 
ern Bell  Telephone  &  Telegraph 
Company,  126  X.  C.  831.  36  S.  F. 
269:  Layden  v.  Knights  of  Pythias, 
etc..  128  X.  C.  546.  39  S.  E.  47:  and 
Matins  v.  Railway  Company,  53  S. 
C.  246.  257):  Wilson  v.  Southern 
Ry.  Co.  (South  Carolina ).  41  S.  E. 
971,  64  S.  C.  162;  affirming  on  re- 
hearing   judgment    36    S.    E,    701  ; 


136 


ORIGINAL    JURISDICTION. 


[«     « 


not  adjudicate  its  rights  or  liabilities  as  a  corporation 
of  a  State,  citizens  of  which  are  upon  the  other  side 
of  the  controversy.18  Otherwise,  where  a  corporation  is  char- 
tered by  two  or  more  States,  it  has  generally  been  held:  that  it 
should  be  treated,  for  the  purpose  of  jurisdiction,  as  composed 
of  citizens  of  the  State  where  the  suit  is  brought ; 19  but  the  rule 


Math  is  v.  Southern  Ry.  Co.  (South 
Carolina)..  31  S.  E.  240:  Calvert  v. 
Southern  Ry.  Co.  (South  Carolina), 
41  S.  E.  963,  64  S.  C.  139:  affirming 
on  rehearing  judgment  36  S.  E.  750. 
See  Patch  v.  Wabash  Railroad  Co., 
•207  U.  S.  277,  52  L.  ed.  204. 

18  Louisville,  N.  A.  &  C.  Ry.  Co. 
v.  Louisville  Trust  Co.,  174  U.  S. 
552,  563,  577,  43  L.  ed.  1081,  1087, 
1092. 

19  Ohio  &  M.  R.  Co.  v.  Wheeler, 
1  Black.  286.  17  L.  ed.  130:  Rail- 
nay  Co.  v.  Whitton,  13  Wall.  270. 
20  L.  ed.  571  ;  Mallei  v.  Dows,  94 
I.  S.  444.  24  L.  ed.  207;  Memphis 
&  C.  R.  Co.  v.  Alabama,  107  U,  S. 
581,  27  L.  ed.  518;  Patch  v.  Wabash 
Railroad  Co.,  207  U.  S.  277.  52  L. 
ed.  204;  Minot  v.  Philadelphia,  W. 
&  B.  R.  Co.,  Fed.  Cas.  Xo.  9,645  (2 
Abb.  U.  S.  323);  affirmed  in  18 
Wall.  206,  21  L.  ed.  888:  St.  Louis, 
A.  &  T.  H.  R.  Co.  v.  Indianapolis 
&  St.  L.  R.  Co.,  Fed.  Cas.  No. 
12,237  (9  Biss.  144)  ;  Home  v.  Bos- 
ton &  M.  R.  R.,  18  Fed.  50:  Col- 
glazier  v.  Louisville,  X.  A.  &  C. 
Ry.  Co.,  22  Fed.  568;  Union  Trust 
Co.  v.  Rochester  &  P.  R.  Co.,  29 
Fed.  609;  Page  v.  Fall  River,  W. 
&  P.  R.  Co.,  31  Fed.  257;  Phinizy 
v.  Augusta  &  K.  R.  Co.,  56  Fed. 
273:  Taylor  v.  Illinois  Cent.  R.  Co., 
89  Fed.  119;  Smith  v.  New  York, 
New  Haven  &  H.  Railroad,  96  Fed. 
.1114:  Walters  v.  Chicago,  B.  &  Q.  R. 
Co..  104  Fed.  337;  Boston  &  Maine 
R.  R.  v.  Hurd.  108  Fed.  116.  47  C. 
C.  A.  615.  56  L.R.A.  193:   Goodwin 


v.  New  York.  N.  H.  &  H.  R.  Co., 
124  Fed.  358:  Goodwin  v.  Boston  & 
M.  R.  R..  127  Fed.  986;  Alabama 
&  G.  Mfg.  Co.  v.  Riverdale  Cotton 
Mills.  C.  C.  A.,  127  Fed.  497;  Lake 
Shore  &  M.  S.  Ry.  Co.  v.  Eder,  C. 
C.  A.  174  Fed.  944;  St.  Louis  &  S. 
F.  R.  Co.  v.  Cross,  171  Fed.  480: 
Fairfield  v.  Great  Falls  Mfg.  Co., 
175  Fed.  305:  Lewis  v.  Maysville  & 
B.  S.  R.  Co.  (Kentucky),  76  S.  W. 
526.  25  Ky.  Law.  Rep.  948;  Illinois 
Cent.  R.  Co.  v.  Hibbs  (Kentucky), 
78  S.  W.  1116.  25  Ky.  Law  Rep. 
1899:  Home  v.  Boston  &  M.  Rail- 
road. 62  N.  H.  454;  Allegheny 
County  v.  Cleveland  &  P.  R.  Co., 
51  Pa.  (1  P.  F.  Smith),  228,  88 
Am.  Dec.  579:  Baltimore  &  O.  R. 
Co.  v.  Pittsburg,  W.  &  K.  R.  Co., 
17  W.  Ya.  812.  This  distinction 
was  noted  by  the  court  in  South- 
ern Railway  Co.  v.  Allison,  190  U. 
S.  326.  337.  338,  47  L.  ed.  1078, 
1083,  10S4:  but  without  stating 
whether  it  would  be  followed  in  the 
future.  Contra,  Nashua  &  Lowell 
R.  R.  Corp.  v.  Boston  &  L.  R.  R. 
Corp.,  136  U.  S.  356,  34  L.  ed.  363. 
In  that  case,  two  railroad  corpora- 
tions with  the  same  name,  having 
their  junction  at  the  State  line, 
were  respectively  incorporated  by 
the  laws  of  New  Hampshire  and 
Massachusetts,  the  New  Hampshire 
corporation  being  the  first  created. 
Their  subsequent  consolidation  was 
first  authorized  by  a  law  of  Massa- 
chusetts, which,  by  its  terms,  did 
not   take   effect  until   authorized  bv 


47] 


CORPORATIONS. 


137 


may  be  different  where  the  cause  of  action  arose  in  another 
State  from  that  where  it  is  sued.20  Where  the  foreign  cor- 
poration, subsequent  to  the  injury  which  caused  the  suit,  be- 
came incorporated  in  the  State  where  the  injury  was  done,  it 
was  held  that,  for  the  purposes  of  the  suit,  it  should  be  treated 
as  a  foreign  corporation.21  Where  there  is  a  merger,  one  cor- 
poration remaining  in  existence  and  the  other  being  absorbed 
in  the  same,  the  company  continues  to  be  a  citizen  of  the  same 
State  as  that  of  the  former.22  In  case  of  a  consolidation  of 
corporations  chartered  by  different  States;  if  the  consolidation 
creates  a  new  corporate  entity  and  is  made  under  the  laws  of  a 
single  State,  it  seems  that  the  new  company  must  be  treated  as  a 


a  law  of  New  Hampshire  and  ac- 
cepted by  the  stockholders,  both  of 
which  authorities  were  subsequently 
obtained.  It  was  held:  that  the 
consolidated  company,  a  New  Hamp- 
shire corporation,  might  sue  an- 
other Massachusetts  corporation  for 
an  accounting  in  a  suit  in  the  Cir- 
cuit Court  of  the  United  States  for 
the  District  of  Massachusetts.  Of 
this  case,  Judge  Lowell  said:  "The 
Supreme  Court,  although,  perhaps 
not  with  complete  logical  consisten- 
cy, treated  the  plaintiff  as  being  a 
corporation  created  in  1'835."  the 
date  of  the  first  incorporation  prior 
to  the  consolidation,  "by  New 
Hampshire  and  by  New  Hampshire 
alone.  .  .  .  The  two  corpora- 
tions of  New  Hampshire  and  Massa- 
chusetts, operated  together,  was 
held,  by  the  Supreme  Court,  to  con- 
stitute ...  an  anomalous  union 
of  two  corporations  created  for  dis- 
tinct purposes  by  different  States, 
which  had  been  united  as  to  their 
business  and  property,  but  not  as 
to  their  corporate  existence.''  Good- 
win v.  N.  Y.,  N.  H.  &  H.  R.  Co., 
124  Fed.  .358.  365.  The  statutes  of 
Alabama  required  a  railroad  com- 
pany,    previously     incorporated     in 


Tennessee,  to  open  books  in  Alaba- 
ma for  the  subscription  to  "its  capi- 
tal stock,  in  order  to  afford  citizens 
of  that  State  an  opportunity  to  sub- 
scribe to  a  specified  proportion  of 
the  same,  and  also  provided  that 
elections  for  directors  should  be 
held  at  the  same  time  in  both  Ala- 
bama and  Tennessee;  the  court  held, 
that  by  reason  of  the  particular  lan- 
guage used  in  the  act,  there  had 
been  a  new  corporation  formed  in 
Alabama :  and  that  the  company 
could  not  remove  a  suit  brought 
against  it  in  Alabama  by  a  citizen 
of  that  State.  Memphis  &  Charles- 
ton R.  R.  Co.  v.  Alabama,  107  U.  S. 
581,  584,  27  L.  ed.  51S,  519. 

20  Patch  v.  Wabash  Railroad  Co., 
207  U.  S.  277,  283,  52  L.  ed.  204, 
207. 

21  Mowery  v.  Southern  Ry.  Co., 
129  N.  C.  351,  40  S.  E.  88. 

22  Lee  v.  Atlantic  Coast  Line  R. 
Co.,  150  Fed.  775:  where  the  fact 
that  the  transaction  left  a  large 
part  of  the  capital  stock  of  one  of 
the  companies  outstanding  and  all 
that  of  the  other  surrendered  and 
cancelled;  was  held,  to  be  evidence 
of  the  intent  that  the  former  com- 
pany   should    continue    in    existence. 


138 


ORIGINAL    JURISDICTION. 


[§  47 


citizen  of  that  State  alone.23  If  such  consolidation,  however,  is 
made  under  the  laws  of  Loth  the  States,  then,  it  has  been  held : 
that  the  consolidated  corporation  is  to  be  treated  as  a  citizen 
of  both,  and  when  sued  in  either  State  by  a  citizen  thereof,  it 
has  no  right  of  removal ; 24  but  that  the  District  Court  of  the 
United  States  has  jurisdiction  of  a  suit  against  it  in  one  of 
these  States  by  a  citizen  of  another.25  A  general  law  enabling 
foreign  corporations  of  a  certain  class  to  transact  business  in  a 
State  upon  compliance  with  certain  conditions,  or  a  special  en- 
abling law  to  such  effect,  does  not  prevent  a  corporation  which 
complies  with  the  same  from  removing  a  suit  against  it  because 
of  a  difference  of  citizenship  between  it  and  a  citizen  of  such  a 
State.26     The  appointment  of  an  attorney  in  a  foreign  State 


23  YVestheider  v.  Wabash  Railroad 
Co.,  115  Fed.  840.  There  the  for- 
mer corporations  conveyed  all  their 
property  to  the  new  company,  and 
the  agreement  of  consolidation  was 
recorded  in  the  offices  of  the  Secre- 
tary of  State  and  recorders  of  the 
different  counties  "where  one  of  the 
lailroads  was  situated  in  Illinois; 
but  the  new  corporation  was  held, 
to  have  been  incorporated  under  the 
laws  of  Ohio  and  to  be  a  citizen 
thereof,  and  not  a  citizen  of  Illi- 
nois. In  Patch  v.  Wabash  Railroad 
Co.,  207  U.  S.  277,  52  L.  ed.  204; 
Winn  v.  Wabash  Railroad  Co.,  118 
Fed.  55,  it  was  held,  that  the  same 
consolidated  company  remained,  in 
each  of  the  States  where  one  of  its 
constituents  was  situated,  a  citizen 
thereof. 

24Muller  v.  Dows,  94  U.  S.  444, 
24  L.  ed.  207;  Patch  v.  Wabash 
Railroad  Co.,  207  U.  S.  277,  52  L. 
ed.  204;  Chicago  &  W.  I.  R.  Co.  v. 
Lake  Shore  &  M.  S.  Ry.  Co..  5  Fed. 
19,  10  Biss.  122;  Johnson  v.  Phila- 
delphia. W.  &  B.  R.  Co.,  9  Fed.  6; 
Paul  v.  Baltimore  &  O.  &  C.  R.  Co., 
44  Fed.  513;  Goodwin  v.  New  York, 
N.  H.  &  H.  R.  R.  Co.,  124  Fed.  358 ; 
Goodwin   v.  Boston   &   Maine  R.   R.. 


127  Fed.  986;  Wasley  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.,  147  Fed.  608; 
Cummins  v.  Chicago,  B.  &  Q.  R. 
Co.,  193  Fed.  238.  But  see  Nashua 
&  Lowell  R.  R.  Corporation  v.  Bos- 
ton &  Lowell  R.  R.  Corporation,  136 
U.  S.  356,  34  L.  ed.  363,  supra, 
note  19.  The  Boston  &  Albany  Rail- 
road Company  has  been  held  to  be 
a  corporation  of  both  Massachusetts 
and  New  York  so  as  to  justify  the 
assessment  of  a  transfer  tax  on  its 
shares  in  each  State.  Moody  v. 
Shaw,  173  Mass.  375;  Matter  of 
Cooley,  113  App.  Div.   (N.  Y.)    388. 

25  Marshall  v.  Baltimore  &  O.  R. 
Co.,  16  Howard,  314,  14  L.  ed.  953; 
Wheeling  v.  City  of  Baltimore,  Fed. 
Cas.  No.  17.502  (1  Hughes,  90); 
Williamson  v.  Krohn,  66  Fed.  655, 
13  C.  C.  A.  668.  31  U.  S.  App.  325; 
Missouri  Pac.  Ry.  Co.  v.  Meeh,  C.  C. 
A.,  69  Fed.  753,  30  L.R.A.  250; 
Smith  v.  New  York,  N.  H.  &  H.  R. 
Co.,  96  Fed.  504;  Winn  v.  Wabash 
R.  Co.,  118  Fed.  55;  Wasley  v. 
Chicago.  R.  I.  &  P.  Ry.  Co.,  147 
Fed.  608. 

26  Owen  v.  New  York  Life  Ins. 
Co..  Fed.  Cas.  No.  10.631  (1  Hughes, 
322)  ;  Scott  v.  Texas  Land  &  Cattle 
Co.,  41    Fed.   225;    Amsden   v.   Nor- 


§  47] 


CORPORATIONS. 


139 


with  a  consent  that  process  served  upon  him  shall  bind  the  cor- 
poration ; 27  or  the  operation  of  a  railroad  in  another  State  under 
a  lease,28  or  under  a  purchase  from  a  domestic  corporation ; 29 
or  the  filing,  in  the  office  of  the  Secretary  of  State,  of  duly 
authenticated  copies  of  its  charter  and  by-laws;80  or,  it  has 
been  held,  the  subsequent  acceptance  of  a  paper  described  as 
a  charter  issued  by  the  Secretary  of  State  and  reciting  a  merger, 
union  and  consolidation  of  a  domestic  with  a  foreign  corpora- 
tion ; 31  or  the  legislative  recognition  of  the  existence  within  a 
State  of  a  corporation  chartered  elsewhere ; 32  or  even  the  legis- 


wich  Union  Fire  Ins.  Soc,  44  Fed. 
515;  Amsden  v.  Traders'  Ins.  Co. 
of  Chicago,  44  Fed.  515;  Goodloe  v. 
Tennessee  Coal,  Iron  &  R.  Co.,  117 
Fed.  348;  Morton  v.  Mutual  Life 
Ins.  Co.,  105  Mass.  141,  7  Am.  Eep. 
505;  Fisk  v.  Chicago,  R.  I.  &  P.  R. 
Co.  (New  York),  53  Barb.  472; 
Newhall  v.  Atlantic,  etc.,  Ins.  Co., 
8  Phila.  106. 

27  Lee  v.  Aetna  Ins.  Co.,  Fed.  Cas. 
No.  8,181;   Hatch  v.  Chicago.  R.  I. 

6  P.  R.  Co.,  Fed.  Cas.  No.  6,204  ( 6 
Blatchf.  105);  Owen  v.  New  York 
Life  Ins.  Co.,  Fed.  Cas.  No.  10,631 
(1  Hughes,  322)  ;  Fales  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  32  Fed.  673; 
Scott  v.  Texas  Land  &  Cattle  Co., 
41  Fed.  225;  Amsden  v.  Norwich 
Union  Fire  Ins.  Soc,  44  Fed.  515; 
Amsden  v.  Traders'  Ins.  Co.  of 
Chicago,  44  Fed.  515:  Morton  v. 
Mutual  Life  Ins.  Co..  105  Mass.  141, 

7  Am.  Rep.  505;  Fisk  v.  Chicago, 
R.  I.  &  P.  R.  Co.  (N.  Y.),  53  Barb. 
472:  Stevens  v.  Phoenix  Ins.  Co.,  41 
N.  Y.  149;  Newhall  v.  Atlantic,  etc., 
Ins.  Co.,  8  Phila.  100;  Fox  v.  Amer- 
ican Casualty  Ins.  &  Security  Co. 
(Pennsylvania),  12  Pa.  Co.  Ct.  R. 
207,  2  Pa.  Dist.  R.  158. 

28  Baltimore  &  O.  R.  R.  Co.  v. 
Koontz,  104  U.  S.  5,  26  L.  ed.  643; 
Callahan  v.  Louisville  &  N.  R.  Co., 
11  Fed.  536;  Crane  v.  Chicago  &  N. 


W.  Ry.  Co.  20  Fed.  402:  affirming 
Chicago  &  N.  W.  Ry.  Co.  v.  Crane, 
113  U.  S.  424.  28  L.  ed.  10ti4:  Wil- 
kinson v.  Delaware,  L.  &  W.  R.  Co., 
22  Fed.  353;  Willson  v.  Winchester 
&  P.  R.  Co.,  99  Fed.  642,  41  C.  C.  A. 
215:  affirming  decree.  Wilson  v. 
Winchester  &  P.  R.  Co..  82  Fed.  15; 
Treadway  v.  Chicago  &  N.  W.  Ry. 
Co.,  21  Iowa,  351. 

29  Williams  v.  Missouri.  K.  &  T. 
Ry.  Co.,  Fed.  Cas.  No.  17,728  (3 
Dill.  267)  ;  Antelope  Co.  v.  Chicago, 
B.  &  Q.  R.  Co.,  16  Fed.  295:  Chica- 
go, St.  P.,  M.  &  O.  Ry.  Co.  v.  Da- 
kota County,  28  Fed.  219;  Conn  v. 
Chicago.  B.  &  Q.  R.  Co..  48  Fed. 
177:  distinguishing  Fitzgerald  v. 
Missouri  Pac.  Ry.  Co..  45  Fed.  812; 
Morgan  v.  East  Tennessee  &  V.  R. 
Co.,  48  Fed.  705. 

30  Pennsylvania  R.  Co.  v.  St. 
Louis.  A.  &  T.  H.  R.  Co.,  118  I  .  S. 
290.  30  L.  ed.  83;  St.  Louis.  A.  & 
T.  H.  R.  Co.  v.  Pennsylvania  R.  R. 
Co..  118  U.  S.  630.  30  L.  ed.  284: 
Southern  Ry.  Co.  v.  Allison,  190  U. 
S.  326.  47  L.  ed.  1078:  reversing 
129  N.  C.  336:  Chicago.  I.  &  N.  P. 
R.  Co.  v.  Minnesota  &  N.  \V.  R.  Co., 
29   Fed.  337. 

31  Lee  v.  Atlantic  Coast  Line  R. 
Co..   15(1    Fed.   775.   792. 

32  Martin's  Adm'r  v.  Baltimore  & 
Ohio  R.  Co..  151   U.  S.  673,  38  L.  ed. 


140 


ORIGINAL    JURISDICTION. 


[§   48 


lative  grant  of  a  charter  making  it  a  domestic  corporation,  when 
such  grant  is  not  accepted : 33  do  not  make  a  foreign  corporation 
a  citizen  of  such  other  State  and  cut  off  its  right  of  removal. 
Where  parties  sued,  or  were  sued,  as  corporations,  and  there 
was  no  averment  that  thev  were  created  bv,  or  organized  under, 
the  laws  of  any  specified  State,  it  was  held  to  be  insufficient  to 
allege  that  one  was  a  citizen  of  a  certain  State; 34  or  that  it  was 
"duly  established  by  law,  having  its  principal  place  of  business" 
in  a  specified  State,35  or  that  it  '"'claims  to  be"  a  corporation 
organized  under  the  laws  of  a  specified  State,  as  a  company  of  a 
specified  character.36  An  allegation  that  a  party  was  a  cor- 
poration under  the  laws  of  the  State  of  Virginia,  and  a  citizen 
of  Virginia,  and  a  resident  of  the  western  district  thereof,  was 
held  to  be  sufficient.37 

§  48.  Unincorporated  stock  companies  and  associations. 
There  is  no  presumption  as  regards  the  citizenship  of  mem- 
bers of  unincorporated  joint  stock  companies,  even  where  the 
law  under  which  they  were  organized  authorizes  them  to  sue 
and  be  sued  in  the  name  of  one  or  more  of  their  officers ;  and,  it 
has  been  held,  that  a  case  where  one  of  them  is  a  party  cannot 
be  removed  because  of  diverse  citizenship,  unless  all  the  mem- 
bers of  such  company  are  citizens  of  different  States  from  those 


311;  Antelope  Co.  v.  Chicago,  B.  & 
Q.  R.  Co..  16  Fed.  295:  Moore  v. 
Chicago..  St.  P.,  M,  &  0.  Ry.  Co.,  21 
Fed.  817;  Taylor  County  Court  v. 
Baltimore  &  6.  R.  Co.,  35  Fed.  161; 
Baltimore  &  0.  R.  Co.  v.  Ford,  35 
Fed.  170;  following  Baltimore  &  0. 
R.  Co.  v.  Harris.  12  Wall.  65.  20 
L.  ed.  354;  Chapman  v.  Alabama  G. 

5  R.  Co.,  59  Fed.  370;  Markwood 
v.  Southern  Ry.  Co.,  65  Fed.  817. 

33  Pennsylvania  R.  Co.  v.  St. 
Louis.  A.  &  T.  H.  R.  Co.,  118  U. 
S.  290,  30  L.  ed.  83;  Nashua  & 
Lowell  R.  R.  Corporation  v.  Boston 

6  Lowell  R.  R.  Corporation,  136  U. 
S.  356,  34  L.  ed.  363. 

34  Thomas  v.  Board  of  Trustees 
of  Ohio  State  University.  195  U. 
S.  207,  49  L.  ed.  160:  Lonergan  v. 
Illinois   Cent.  R.   Co.,  55  Fed.   550; 


Frisbie  v.  Chesapeake  &  O.  R.  Co., 
57  Fed.  1  :  De  Loy  v.  Traveler's  Ins. 
Co.,  59  Fed.  319;  American  S.  R.  Co. 
v.  Johnson,  60  Fed.  503;  Winkler 
v.  Chicago  &  E.  I.  R.  Co.,  108  Fed. 
305 :  Dalton  v.  Milwaukee  Mechan- 
ics' Ins.  Co.,  118  Fed.  876;  Knight 
v.  Lutcher  &  Moore  Lumber  Co.,  136 
Fed.  404.  Contra,  Oakey  v.  Com- 
mercial &  Railroad  Bank,  14  La.  O. 
S.  515;  Guarantee  Co.  of  North 
America  v.  First  Nat.  Bank  (Vir- 
ginia), 28  S.  E.  909. 

35  New  York  &  New  England  R. 
R.  Co.  v.  Hyde,  C.  C.  A.,  56  Fed. 
188,  191. 

36  Lownsdale  v.  Gray's  Harbor 
Boom  Co..   117   Fed.  983. 

87  Mathieson  Alkali  Works  v. 
Mathieson,  C.  C.  A.,  150  Fed.  241. 


49] 


PARTNERSHIPS. 


141 


of  all  the  parties  on  the  opposite  side  of  the  controversy.1  The 
same  rule  applies  to  voluntary  associations,  such  as  trade  unions, 
which  are  not  incorporated.2 

§  49.  Partnerships.  There  is  no  presumption  that  the 
members  of  a  partnership,  whether  general  or  limited,  are  citi- 
zens of  the  State  where  it  was  organized;  and  the  citizenship 
of  all  its  members  must  be  considered  when  a  removal  is  sought 
in  a  suit  to  which  it  is  a  party,  even  when  the  State  law  au- 
thorizes them  to  sue  and  be  sued  in  the  firm  name.1  It  was 
so  held  in  a  State  where  a  partnership  was  considered  to  be  a 
legal  entity,2  and  as  to  limited  partnerships  organized  under  the 
Michigan,3  Xew  York,4  and  Pennsylvania 5  statutes.  Where 
a. copartnership  was  sued  alone  by  its  firm  name  under  section 
3468  of  the  Iowa  Code,  authorizing  a  suit  to  be  brought  either 
against  a  partnership  or  its  members,  or  both,  the  members  of 


§  48.  1  Chapman  v.  Barney.  129 
U.  S.  677;  Dinsmore  v.  Philadel- 
f  phia  &  R.  R.  Co.,  Fed.  Cas.  No. 
3.921;  Jewish  Colonization  Ass'n  v. 
Solomon  &  Germanski,  125  Fed. 
994.  Contra,  Maltz  v.  American  Ex- 
press Co.,  Fed.  Cas.  No.  9.002  (1 
Flippin,  611)  ;  Fargo  v.  Louisville, 
N.  A.  &  C.  Ry.  Co.,  6  Fed.  787; 
Baltimore  &  0.  R.  Co.  v.  Adams 
Express  Co.,  22  Fed.  404;  Whit- 
man v.  Hubbell,  30  Fed.  81:  Saun- 
ders v.  Adams  Express  Co.,  136 
Fed.  494.  See  Rosenfield  v.  Adams 
Express  Co.  (Louisiana),  21  La. 
Ann.  233.  All  these  cases  arose 
under  the  New  York  statute.  But 
see  Boatner  v.  American  Express 
Co.,  122  Fed.  714;  where  the  treas- 
urer of  such  a  joint  stock  associa- 
tion was  allowed  to  remove  a  suit 
brought  against  him  under  section 
25  of  the  Kentucky  civil  code  of 
practice,  authorizing  one  or  more 
of  numerous  parties  to  sue  or  de- 
fend for  the  benefit  of  all. 

2  A.  R.  Barnes  &  Co.  v.  Berry, 
156  Fed.  72;  Irving  v.  Joint  Dist., 
Council  of  New  York.  &c.  of  United 


Brotherhood  of  Carpenters,  &c,  180 
Fed.  896. 

§  49.  1  Great  Southern  Fire 
Proof  Hotel  Co.  v.  Jones,  177  U.  S. 
449,  44  L.  ed.  842;  H.  L.  Bruett  & 
Co.  v.  F.  C.  Austin  Drainage  Exca- 
vator Co.,  174  Fed.  668,  under 
Iowa  statute;  Empire  Rice  Mill  Co. 
v.  K.  &  E.  Neumond,  199  Fed.  800. 

2  Empire  Rice  Mill  Co.  v.  K.  &  E. 
Neumond,  199  Fed.  800,  Louisiana 
statute. 

3  Fred  Macey  Co.  v.  Macey,  135 
Fed.  725,  68  C.  C.  A.  363. 

4  Jewish  Colonization  Ass'n  v. 
Solomon  &  Germanski,  125  Fed.  994. 

6  Great  Southern  Fire  Proof  Hotel 
Co.  v.  Jones,  177  U.  S.  449.  44  L. 
ed.  S42:  reversing  86  Fed.  370,  30  C. 
C.  A.  108;  and  overruling:  Bushnell 
v.  Park  Bros.  &  Co.,  46  Fed.  209: 
Carnegie.  Phipps  &  Co.  v.  Hulbert. 
53  Fed.  10,  3  C.  C.  A.  391,  10  U.  S. 
App.  454:  Andrews  Bros.  Co.  v. 
Youngstown  Coke  Co.,  C.  C.  A.,  86 
Fed.  585.  In  all  these  cases  the 
partnership  was  organized  under 
Pa.  Act  of  June  2,  1874  (P.  L.  271). 


142  ORIGINAL    JURISDICTION.  [§    50 

the  firm  not  being  named  in  the  plaintiff's  petition,  which  al- 
leged the  defendant  to  be  a  corporation,  it  was  held,  that  the 
suit  could  not  be  removed  by  the  members  of  the  firm,  who  were 
citizens  of  a  different  State  from  that  of  the  plaintiff.6 

§  50.  Under  grants  of  different  States.  Where  there  is  a 
controversy  between  citizens  of  the  same  State  claiming  land 
under  grants  of  different  States,  it  seems  that  the  District  Court 
of  the  United  States  has  jurisdiction  irrespective  of  the  amount 
involved.1  Where  one  party  claimed  land  under  a  grant  of 
Xew  Hampshire  made  when  Vermont  was  a  part  of  that  State, 
and  the  other  under  a  grant  from  Vermont  made  after  their 
separation,  it  was  held  that  the  controversy  arose  between  per- 
sons -claiming  lands  under  grants  of  different  States.2  Where. a 
controversy  is  founded  upon  conflicting  grants  of  different 
States,  the  Federal  courts  have  jurisdiction  irrespective  of  the 
equitable  title  of  the  parties  before  either  grant.3  It  was  held : 
that  the  Federal  courts  did  not  take  jurisdiction  of  a  case  be- 
tween citizens  of  the  same  States,  where  the  defendant  claimed 
the  land  in  dispute  under  a  grant  by  the  State  of  North  Caro- 
lina, while  the  plaintiff  claimed  under  a  grant  by  the  State  of 
Tennessee,  in  which,  however,  the  State  of  Tennessee  did  not 
act  by  virtue  of  her  sovereignty  as  a  State,  but  only  by  virtue 
of  a  power  delegated  by  Xorth  Carolina  to  perfect  titles,  which, 
before  the  separation  of  the  States,  were  inaccurate  and  imper- 
fect.4 Under  the  former  Judiciary  Act,  it  was  held  that  a  party 
claiming  land  under  a  grant  from  a  State  where  the  suit  was 
pending  could  not  remove  the  case  because  the  other  party 
claimed  under  a  grant  from  another  State.5 

§  51.  Ancillary  jurisdiction.  After  a  Federal  court  has 
acquired  jurisdiction,  through  the  existence  of  the  necessary  dif- 
ference of  citizenship  between  the  original  parties,  ancillary 
proceedings  may  be  therein  instituted,   although  parties  upon 

BRalya  Market  Co.  v.  Armour  &  3    L.   ed.    73.5;    Colson    v.    Lewis,   2 

Co.,  102  Fed.  530.  Wheat.  377,  4  L.  ed.  200. 

§  50.     i  See    Holt   on    Concurrent  3  Colson  v.  Lewis,   2   Wheat.   377, 

Jurisdiction,   §    60:    In    re   Hohdrst,  379.  4  L.  ed.  266. 

150   U.   S.  653,  660,  37  L.  ed.   1211,  4  Thompson     v.     Kendrick's     Les- 

1214;  In  re  Keasby  &  Mattison  Co.,  see,  6  Tenn.   (5  Hayw.)   113. 

160  U.   S.  221,  230,   40  L.  ed.   402,  5  Shepherd's    Heirs    v.    Young,    1 

405.  T.  B.  Monroe   (17  Ky.)   203. 

2  Pawlet  v.  Clark.  9  Cran.'h,  292, 


§  51] 


ANCILLARY    J  URISDICTIOX. 


143 


the  different  sides  of  the  controversy  are  citizens  of  the  same 
State  and  th  re  is  no  other  ground  of  Federal  jurisdiction.1 
"The  question  is  not  whether  the  proceeding  is  supplemental 
and  ancillary,  or  is  independent  and  original,  in  the  sense  of  the 
rules  of  equity  pleading,  but  whether  it  is  supplementary  and 
ancillary,  or  is  to  be  considered  entirely  new  and  original,  in 
the  sense  which  this  court  has  sanctioned  with  reference  to  the 
line  which  divides  the  jurisdiction  of  the  Federal  courts  from 
that  of  the  State  courts."2  Thus,  not  only  can  a  bill  of  re- 
vivor or -a  supplemental  bill,3  or  a  cross  bill,4  be  maintained  in 
a  Federal  court  which  had  jurisdiction  of  the  original  litigation  ; 
but  so  can  a  bill  to  enjoin  the  prosecution  of  proceedings  therein 
at  law  or  in  equity,5  or  for  set-off,6  or  a  bill  to  restrain  or  regu- 
late,7 or  to  set  aside,8  or  to  modify,9  or  to  obtain  a  judicial  con- 


§  51.  lDunn  v.  Clarke.  8  Pet.  I, 
8  L.  ed.  845;  Clarke  v.  Matliewson, 
12  Pet  163.  9  L.  ed.  1041;  Freeman 
v.  Howe,  24  How.  450,  400.  1 6  L.  ed. 
749,  752:  Minnesota  Co.  v.  St.  Paul 
Co.,  2  Wall.  609,  17  L.  ed.  886; 
Jones  v.  Andrews,  10  Wall.  327.  19 
L.  ed.  935;  Krippendorf  v.  Hyde, 
110  U.  S.  276,  28  L.  ed.  145;  Pacific 
R.  of  Mo.  v.  Mo.  P.  R.  Co..  Ill  U.S. 
505,  522,  28  L.  ed.  498.  504;  Dewey 
v.  W.  P.  G.  C.  Co.,  123  U.  S.  329, 
31  L.  ed.  179;  Gumbel  v.  Pitkin, 
124  U.  S.  131,  31  L.  ed.  374;  Sey- 
mour v.  Phillips  &  C.  Const.  Co.,  7 
Biss.  460.  But  see  Christmas  v. 
Russell,  14  Wall   69,  20  L.  ed.  762. 

2. Miller,  J.,  in  Minnesota  Co.  v. 
St.  Paul  Co.,  2  Wall.  609,  633,  17 
L.  ed.  886,  895. 

3  Clarke  v.  Matliewson,  12  Pet. 
164,  9  L.  ed.  1041. 

4  Morgan's  La.  &  T.  R.  &  St.  Co. 
v.  Texas  Cent.  Ry.  Co.,  137  U.  S; 
171,  34  L.  ed.  625.  See  infra,  §  201; 
Central  Trust  Co.  v.  Bridges,  57 
Fed.   753. 

5  Bradshaw  v.  Miners'  Bank,  C. 
C.  A..  81  Fed.  902;  Krippendorf 
v.  Hyde,   110   U.   S.   276,  28   L.  ed. 


145;  Leigh  v.  Kewanee  Mfg.  Co., 
127  Fed.  990;  South  Penn  Oil  Co. 
v.  Calf  Creek  Oil  &  Gas  Co..  140  Fed. 
507;  Campbell  et  al.  v.  Golden  Cycle 
Min.  Co.,  141  Fed.  610;  Loy  v. 
Alston,  C.  C.  A.,  172  Fed.  90. 

6  Loy  v.  Alston,  C.  C.  A.,  172  Fed. 
90. 

7  Dunn  v.  Clark,  8  Pet.  1,  8  L. 
ed.  845;  Freeman  v.  Howe,  24  How. 
450,  460,  16  L.  ed.  749,  752:  Jones 
v.  Andrews.  10  Wall.  327.  19  L.  ed. 
935;  Krippendorf  v.  Hyde,  110  U.  S. 
276,  28  L.  ed.  145;  Johnson  v.  Chris- 
tian, 125  U.  S.  642,  31  L.  ed.  820; 
Lang  v.  Choctaw,  Oklahoma  &  Gulf 
R.  Co..  C.  C.  A.,  160  Fed.  355;  Loy 
v.  Alston.  C.  C.  A.,  172  Fed.  90. 

8  Pari  tic  R.  of  Mo.  v.  Mo.  P.  R. 
Co.,  Ill  U.  S.  505,  522.  28  L.  ed. 
498.  504;  Foster  v.  Mansfield,  C.  & 
L.  M.  R.  Co.,  36  Fed.  627:  s.  c,  146 
I".  S.  88,  36  L.  ed.  899:  Carey  v. 
Houston  &  T.  C.  Ry.  Co..  161  U. 
S.  115,  40  L.  ed.  638:  Maitland  v. 
Gibson,  79  Fed.  136;  Lacanagrues 
v.  Chapins,  144  U.  S.  119.  36  L.  ed. 
368;  Broadis  v.  Broadis,  86  Fed. 
951;    Ladd    v.    West,   55   Fed.    353; 


144 


ORIGINAL    JURISDICTION. 


[§   51 


struction,10  or  to  enforce  by  injunction/1  scire  facias,12  levy  of  a 
tax,13  or  otherwise,14  a  judgment  or  decree  of,  or  a  bond  15  given 
to,  or  an  attachment,16  or  execution  17  issued  by,  a  Federal  court, 
even  where  other  incidental  relief  is  prayed,18  irrespective  of 
the  citizenship  of  the  parties.  So  can  a  bill  or  petition  for  the 
appointment  of  a  receiver  in  aid  of  a  pending  action  at  law;  for 


Hill  v.  KuMman,  C.  C.  A.,  87  Fed. 
498;  McDonald  v.  Seligmans,  81 
Fed.  753;  Richardson  v.  Loree,  C. 
C.  A.,  94  Fed.  375:  O'Connor  v. 
O'Connor,  146  Fed.  994:  Lang  v. 
Choctaw,  Oklahoma  &  Gulf  R.  Co., 
C.  C.  A.,  1G0  Fed.  355;  Loy  v.  Als- 
ton, C.  C.  A.,  172  Fed.  90.  Where 
an  action  was  brought  upon  the 
award  of  an  arbitrator,  it  Was  held 
that  a  suit  to  set  aside  the  award 
for  fraud  was  ancillary  to  the  same, 
but  that  the  court  could  not  thus 
obtain  jurisdiction  to  bring  in  a 
stranger  to  the  former  action,  who 
was  a  citizen  of  the  same  State  as 
the  complainant,  for  the  purpose  of 
impeaching  an  award  in  the  latter's 
favor,  made  at  the  same  arbitration, 
which  was  separate  and  distinct 
from  that  between  the  other  parties, 
ilecht  v.  Youghiogheny  &  Lehigh 
Coal  Co.,  1G2  Fed.  812. 

9  Thompson  v.  Schenectady  Ry. 
Co.,  124  Fed.  274. 

10  Minnesota  Co.  v.  St.  Paul  Co., 
2  Wall.  609.  17  L.  ed.  886:  Jenks 
v.  Brewster.  96  Fed.  625:  Lang  v. 
Choctaw,  Oklahoma  &  Gulf  R.  Co., 
C.  C.  A..  160  Fed.  355:  Loy  v.  Al- 
ston, C.  C.  A.,  172  Fed.  90. 

11  Railroad  Co.  v.  Chamberlain, 
6  Wall.  748,  18  L.  ed.  859:  Root  v. 
Woolworth,  150  U.  S.  401.  37  L.  ed. 
1123:  Riverdale  Cotton  Mills  v.  Ala. 
&  ca.  Mfg.  Co..  198  U.  S.  1S8.  49 
L.  ed.  1008;  Wabash  Railroad  Co,  v. 
Adelbert  College,  208  U.  S.  38,  53, 
52  L.  ed.  379,  385.     But  see  Alaba- 


ma &  G.  Mfg.  Co.  v.  Riverdale  Cot- 
ton Mills,  C.  C.  A.,  127  Fed.  497. 

12  Pullman's  P.  C.  Co.  v.  Wash- 
burn. 66  Fed.  790;  s.  c.  in  C.  C.  A., 
76  Fed.  1005:  Lafayette  County  v. 
Wonderly,  C.  C  A.,  92  Fed.  313. 

13  Preston  v.  Calloway,  C.  C.  A., 
183  Fed.  19;  Maitland  v.  Gibson,  79 
Fed.  136:  Brim  v.  Mann,  C.  C.  A., 
12  L.R.A.(X.S.)  154,  151  Fed.  145, 
149. 

14  Lang  v.  Choctaw,  Oklahoma  & 
Gulf  R.  Co.,  C.  C.  A.,  160  Fed.  355; 
Loy  v.  Alston,  C.  C.  A.,  172  Fed.  90. 
But  see  Central  Trust  Co.  v.  Grant- 
ham, 83  Fed.  540.  Where  creditors 
brought  a  class-suit  to  administer  in 
equity  the  amounts  due  the  corpo- 
ration from  stockholders  within  the 
territorial  jurisdiction,  it  was  held 
that,  ancillary  to  the  jurisdiction 
which  was  thus  obtained,  the  court 
might  in  an  ancillary  bill  enter  a 
decree  against  a  stockholder  whose 
liability  was  less  than  $2,000.  Rob- 
ertson v.  Conway,  C.  C.  A.,  188  Fed. 
579. 

15  Lamb  v.  Ewing,  56  Fed.  269; 
Leslie  v.  Brown,  95  Fed.  171. 

16  Lant  v.  Manley,  C.  C.  A..  75 
Fed.  627:  Davis  v.  Martin.  C.  C. 
A..  113  Fed.  6:  Hatcher  v.  Hen- 
drie  &  Bolthoff  Mfg.  &  Sy.  Co.,  C. 
C.  A..  113  Fed.  6. 

17  Lant  v.  Mauley,  C.  C.  A..  75 
Fed.  627 :  Davis  v.  Martin,  C.  C.  A., 
113   Fed.  6. 

18  Hill  v.  Kuhlman,  C.  C.  A.,  87 
Fed.  498. 


§  51] 


ANCILLARY    .1  rKISDICTION". 


145 


example,  one  of  ejectment.19  or,  it  seems,  when  authorized  by 
the  State  practice,  in  aid  of  a  judgment  at  law;20  a  bill  by  a 
stranger  to  a  suit  to  enjoin  a  sale  by  the  marshal  of  property 
which  he  claims  to  be  his ; 21  and  a  bill  to  determine  the  manner 
in  which  the  proceeds  of  a  judgment  or  decree  shall  be  distrib- 
uted, at  least  when  they  have  been  paid  into  court.22  A  bill  to 
enjoin  proceedings  in  a  District  Court  of  the  United  States  was 
there  maintained,  although  it  made  an  indispensable  party  de- 
fendant one,  a  suit  against  whom  the  Federal  court  had  pre- 
viously remanded  because  of  the  insufficiency  of  the  matter  in 
dispute.23  A  bill  for  the  reformation  of  a  policy  of  insurance  is 
ancillary  to  an  action  upon  such  policy.24  An  original  bill  or  a 
petition,  to  foreclose  a  mortgage,25  or  a  mechanic's  lien,26  or 
other  lien  27  upon  a  railway  or  other  property,  or  upon  the  pro- 
ceeds of  property,  in  the  possession  of  a  receiver  appointed  by 
a  Federal  court  in  a  prior  suit  to  foreclose  a  prior  or  subsequent 
mortgage,  or  otherwise  in  its  possession,  can  be  brought  in  such 
court  independent  of  the  citizenship  of  the  parties,  even  after 
sale  in  the  former  suit;  although  it  brings  in  new  parties 
whose  citizenship  would  have  defeated  the  jurisdiction  had  they 
been  joined  in  the  original  bill.28  So  may  a  suit  to  partition 
the  property.29     Ancillary  jurisdiction   includes  the  power  to 


WTJlman    v.   Clark.   75    Fed.    868. 

20  See  Mutual  Res.  Fund  Life 
Ass'n  v.  Phelps.  190  U.  S.  147,  47  L. 
ed.  987. 

21  Davis  v.  Martin,  C.  C.  A.,  113 
Fed.  6. 

22  Myers  v.  Luzerne  County,  124 
Fed.  43G. 

23  Virginia-Carolina  Chem.  Co.  v. 
Home  Ins.  Co.,  C.  C.  A.,  113  Fed. 
]. 

24  P,oscnbaum  v.  Council  Bluffs 
Tns.  Co..  3  L.R.A.  189.  37  Fed.  724; 
Abraham  v.  North  G.  F.  Tns.  Co., 
3  L.R.A.   188,  37   Fed.  731. 

25  Morgan's  L.  &  T.  R.  &  S.  S.  Co. 
v.  Texas  Cent.  Ry.  Co..  137  U.  S. 
171.  34  L.  ed.  625;  Farmers'  L.  & 
Tr.  Co.  v.  Houston  &  T.  C.  Ry.  Co., 
44  Fed.  115:  Carey  v.  Huston,  'I'. 
&  C.  R.  Co.,  52  Fed.  671;   Compton 

Fed.  Prac.  Vol.  I.— 19. 


v.  Jesup,  68  Fed.  263;  Toledo,  St. 
L.  &  K.  C.  Ry.  Co.  v.  Continental 
T.  R.  Co..  C.  C.  A.,  95  Fed.  497. 

26  Central  Tr.  Co.  v.  Bridges  C. 
C.  A..  57  Fed.  753. 

27  Blake  v.  Pine  M.  I.  &  C.  Co., 
C.  C.  A.,  76  Fed.  624;  Central  Tr- 
Co.  v.  Benedict,  C.  C.  A.,  78  Fed. 
198;  Central  Tr.  Co.  v.  Carter,  C.  C. 
A.,  78  Fed.  225;  State  Tr.  Co.  v. 
Kansas  City  P.  &  G.  R.  Co.,  115  Fed. 
367.  As  to  the  jurisdiction  by  cross- 
bill, see  also  Everett  v.  Independent 
School  District.  102  Fed.  529: 
Brooks  v.  Laurent.  C.  C.  A.,  98  Fed. 
647:    infra,  §  201. 

28  Lilientlial  v.  McCormick,  C.  C. 
A..   117   Fed.  89. 

29  City  of  New  Orleans  v.  Howard, 
C.  C.  A.,  160  Fed.  393. 


!  1 6 


ORIGINAL    JURISDICTION. 


[8   51 


hear  and  determine  all  questions  respecting  the  title,  the  pos- 
session, or  the  control,  of  property  in  the  custody  of  the  court ; 30 
even  after  the  property  has  been  sold,  when  the  claim  relates  to 
matters  that  were  disposed  of,  or  that  might  have  been  disposed 
of,  by  the  proceedings  resulting  in  the  same;31  and  irrespective 
of  any  difference  of  the  citizenship  of  the  parties,  a  District 
Court  of  the  United  States  may  entertain  a  bill,  to  restrain  par- 
ties claiming  liens  from  seeking  to  enforce  the  same  against  the 
property  elsewhere  than  in  such  District  Court.32  When  prop- 
erty has  been  seized  by  a  marshal  of  the  United  States,  the  Fed- 
eral court  may  take  jurisdiction,  by  removal,  of  a  proceeding  in 
a  State  court  to  enjoin  the  marshal  from  proceedings  under  the 
writ.33  There  is  no  ancillary  jurisdiction  of  a  suit  to  foreclose 
a  mortgage  upon  a  line  that  has  been  in  the  possession  of  Fed- 
eral receivers  of  a  street  railroad  system,  who  have  been  oper- 
ating the  same  under  a  lease  which  they  have  elected  to  surren- 
der,  when  they  have  offered  to  return  the  property  to  the  lessor. 
After  a  Federal  court  has  appointed  a  receiver,  it  has  ancillary 
jurisdiction  over  all  suits  brought  by  him  irrespective  of  the 
citizenship  of  the  parties  and  of  the  amount  involved.35  ^la 
cannot,   however,   remove  into  such  a  court   all  suits  brought 


30  Wabash  Railroad  Co.  v.  Adel- 
bert College.  20S  T".  S.  38,  53,  52  L. 
ed.  379,  385. 

31  Julian  v.  Central  Trust  Co.. 
]03  U.  S.  93,  48  L.  ed.  629;  Wabash 
Railroad  Co.  v.  Adelbert  College. 
208  U.  S.  38.  53,  52  L.  ed.  379.  385. 

32  Julian  v.  Central  Trust  Co., 
193  U.  S.  93;  Wabash  Railroad  Co. 
v.  Adelbert  College,  208  U.  S.  38, 
:>:!.  52  L.  ed.  379,  385. 

33  Frank  v.  Leopold  &  Feron  Co., 
!69  Fed.  922. 

34  Guaranty  Tr.  Co.  v.  Second 
Ave.  R.  Co.,  165  Fed.  487. 

35  White  v.  Ewing,  159  U.  S.  3(3, 
40  L.  ed.  67:  Pope  v.  Louisville.  X. 
A.  &  C.  Ry.  Co.,  173  U.  S.  573,  43 
L.  ed.  814;  Connor  v.  Alligator  L. 
Co.,  98  Fed.  155;  Bowman  v.  Harris, 
95  1'ed.  917;  Alexander  v.  So.  Home 
Bldg.    &    L.    Ass'n.    120    Fed.    963; 


Hampton  Roads  Ry.  &  El.  Co.  v. 
Newport  News'  &  O.  P.  Ry.  &  El.  Co., 
131  Fed.  534;  Gunby  v.  Armstrong, 
C.  C.  A.,  133  Fed.  417;  Cooper  v. 
Newton.  160  Fed.  190.  So  when  he 
is  an  ancillary  receiver.  Brookfield 
v.  Hecker,  118  Fed.  942.  Held,  that 
jurisdiction  may  thus  be  taken  of  a 
petition  by  the  receivers  for  an  in- 
junction to  restrain  the  enforcement 
of  a  State  statute  reducing  the 
charges  for  the  transportation  of 
passengers  or  freight.  Trust  Co.  of 
America  v.  Chicago,  P.  &  St.  L.  Ry. 
Co...  199  Fed.  593;  that  a  Circuit 
Court  of  the  United  States  would 
not  take  jurisdiction  of  a  suit,  by  a 
receiver  appointed  by  a  Federal 
court,  in  another  Circuit  Court, 
unless  the  matter  in  dispute  ex- 
ceeded the  jurisdictional  amount. 
Sullivan   v.    Swain.   96    Fed.    259. 


8    ;>1]  ANCILLARY    JURISDICTION.  147 

against  him.36     It  has  been  held  at  Circuit  that  a  suit  pending 
against  the  corporation  at  the  time  of  the  receivership  may.  on 
the  petition  of  the  receiver,  be  removed  into  the  Federal  court, 
at  least  when  the  plaintiff  has  intervened  there,  although  origi- 
nal jurisdiction  over  the  same  could  not  have  been  entertained.37 
Where  assets  are  in  the  course  of  administration,  all  persons  en- 
titled to  participate  may  come  in   under  the  jurisdiction   ac- 
quired between  the  parties  by  ancillary  or  supplemental  plead- 
ing, even  though  jurisdiction  would  be  lacking  if  said  proceed- 
ings had  been  originally  and  independently  prosecuted.38     It 
has  been  held  that  a  person,  whose  citizenship,  if  an  original 
party,  would  have  deprived  the  court  of  jurisdiction,  cannot  in- 
tervene when  the  court  has  possession  of  no  fund  or  property  in 
which  he  is  interested.39    It  has  been  held  that  pending  a  fore- 
closure suit  a  bill  to  enjoin  the  sale  of  shares  of  the  capital 
stock  of  the  defendant,  not  covered  by  the  mortgage,  is  not  an- 
cillary to  the  former  suit;  although  the  defendant  has  the  equity 
or  redemption  therein;40  that  where  a  railroad  had  been  sold 
under  a  decree  of  foreclosure  by  a  Federal  court  such  court  had 
no  jurisdiction  over  a  subsequent  suit  to  restrain  the  enforce- 
ment of  a  State  judgment  of  ejectment  obtained  by  a  plaintiff 
win.  was  not  a  party  to  the  foreclosure ; 41  that  after  judgment  in 
ejectment,  which  awards  a  writ  of  possession,  the  court  has  no 
jurisdiction  of  an  application  by  the  marshal  or  other  officer 
to  whom  the  writ  is  addressed,  seeking  instructions  as  to  the 
performance  of  his  ministerial  duties,  when  there  are  adverse 
claims  of  strangers  to  the  suit;42   that  a  Federal  court  after 
formal  judgment  has  no  jurisdiction,  independent  of  a  differ- 
ence of  citizenship,  to  enforce  an  agreement  under  which  the 

36Gableman  v.  Peoria,  Decatur  &  10    Fed.    204.      See     Benderson     v. 

Evansville   Ey.   Co.,   179   U.   S.    335,  Ooode,  49  Fed.  887:    infra,  §  258. 

45  L.  ed.  220;  Baggs  v.  Martin,  179  39  Seligman    v.    Santa     Rosa,    81 

U.    S.    200,    45   L.    ed.    155;    supra.  Fed.   524;    Tinted  EL  S.  Co.  v.  La. 

§§  5,  24.  EL  L.  Co.,  68   Fed.  673. 

37RjCe   v.  Durham  Water  Co..  91  40  Raphael    v.    Trask,    194    U.    S. 

Fed.  433.  272,   48   L.   ed.   973.   s.   c,   118   Fed. 

38  Rouse  v.  Letcher,  156  U.  S.  47, 


ill. 


49,  39  L.  ed.  341.  342;   Second  Nat.  "Central     Trust    Co.    v.    Grant- 
Bank    v.   New    York   Silk    Mfg.   Co.,  ham,  83   Fed.  540. 
!'.■<].  ('as.   Xo.   12.0(11    a';    New    York  42  Dickinson   v.  Huntington,  C.  C. 
Silf   Mfg.  Co.  V.  Second  Nat.  Rank,  V.    185   Fed.  703. 


1-iS  ORIGINAL    JURISDICTION.  [§    51 

same  was  entered,  when  the  construction  of  the  judgment  is  not 
in  question ; 43  and  that  upon  the  authorized  surrender  of  prop- 
erty by  Federal  receivers  to  a  State  receiver,  the  Federal  court 
loses  jurisdiction  of  a  suit  previously  begun  to  foreclose  a  mort- 
gage upon  the  same,  when  there  is  no  diversity  of  citizenship 
between  the  parties.44 

A  creditor's  bill  between  citizens  of  the  same  State  founded 
upon  a  decree  in  admiralty  has  been  held  not  within  the  juris- 
diction of  a  Federal  court.45  It  has  been  held  at  Circuit  that 
a  bill  cannot  thus  be  sustained,  irrespective  of  the  citizenship 
of  the  parties,  when  filed  to  set  aside  for  fraud,  subsequent  to 
its  entry,  the  decree  of  the  Federal  court  or  a  contract  affect- 
ing such  decree ; 46  nor  when  filed  to  set  aside  for  fraud  a  stipu- 
lation and  decree  in  a  former  suit,  the  defendants  to  the  bill 
being  neither  parties  to  the  former  suit  nor  the  personal  repre- 
sentatives of  such  parties,  but  trustees  created  by  a  defendant 
to  such  suit  after  the  decree,  and  where  none  of  the  property 
affected  by  the  former  suit  was  within  the  custody  of  the 
court ; 47  nor  when  filed  against  defendants  to  a  former  decree 
and  a  third  party  to  whom  it  was  alleged  that  lands,  the  subject 
matter  of  the  former  suit,  were  conveyed  prior  to  the  commence- 
ment of  the  same.48  After  a  final  decree  granting  damages  for 
the  injury  to  a  street  railway  by  the  construction  of  another 
railroad,  where  the  jurisdiction  had  attached  because  a  consti- 
tutional question  was  involved,  Mr.  Justice  Brewer  refused  to 
take  jurisdiction  of  a  supplemental  bill  to  enjoin  the  construc- 
tion of  the  rival  railroad  upon  other  grounds,  none  of  which 
presented  a  Federal  question.49 

Conversely,  there  is  a  similar  limitation  upon  the  jurisdiction 
of  the  Federal  courts.  This  is  well  explained  in  the  following 
extract  from  an  opinion  by  Bradley,  J. :    "The  question  present- 

«Stillraan   v.   Combe,   197    U.   S.  46  Yeatman   v.   Bradford,   44   Fed. 

436,  49  L.  ed.  822.  536. 

44  Guaranty  Tr.  Co.  v.  Second  47  Ralston  v.  Sharon,  51  Fed.  702. 
Ave.  R.  Co.,  171  Fed.  1020.  See  S.  See  Sowles  v.  First  Nat.  Bank  of 
C,  165  Fed.  487.  Pittsburgh  et  al.,  133  Fed.  846. 

45  Winter  v.  Swinburne.  8  Fed.  48  Anglo  Florida  P.  H.  Co.  v.  Mc- 
49.  See  Provident  Savings  Soc.  v.  Kibben,  65  Fed.  529.  See  Mont- 
Ford,  114  U.  S.  635,  29  L.  ed.  261;  gprnery  v.  McDermott,  99  Fed.  502. 
Metcalf  v.  Watertown.  128  U.  S.  '  » Omaha  II.  R.  Co.  v.  Cable  T. 
586,  32  L.  ed.  543;  supra,  §  24.  \V.  Co.,   33  Fed.   689. 


§51]  ANCILLARY    JURISDICTION.  149 

ed  with  regard  to  the  jurisdiction  of  the  Circuit  Court  is,  wheth- 
er the  proceeding,  to  procure  nullity  of  the  former  judgment  in 
such  a  case  as  the  present  is  or  is  not  in  its  nature  a  separate 
suit,  or  whether  it  is  a  supplementary  proceeding,  so  connects  1 
with  the  original  suit  as  to  form  an  incident  to  it,  and  substan- 
tially a  continuation  of  it.     If  the  proceeding  is  merely  tanta- 
mount to  the  common-law  practice  of  moving  to  set   aside  a 
judgment  for  irregularity,  or  to  a  writ  of  error,  or  to  a  hill  of 
review,  or  an  appeal,  it  would  belong  to  the  latter  category,  and 
the  United  States  court  could  not  properly  entertain  jurisdic- 
tion of  the  case.80    Otherwise,  the  Circuit  Courts  of  the  United 
States  would  become  invested  with  power  to  control  the  pro- 
ceedings in  the  State  courts,  or  would  have  appellate  jurisdic- 
tion over  them  in  all  cases  where  the  parties  are  citizens  of  dif- 
ferent States.     Such  a  result  would  be  totally  inadmissible.   On 
the  other  hand,  if  the  proceedings  are  tantamount  to  a  bill  in 
equity  to  set  aside  a  decree  for  fraud  in  the  obtaining  thereof, 
then  they  constitute  an  original  and  independent  proceeding, 
and,  according  to  the  doctrine  laid  down  in  Gaines  v.  Fuentes*1 
the  case  might  be  within  the  cognizance  of  the  Federal  courts. 
The  distinction  between  the  two  classes  of  case's  may  be  some- 
what nice,  but  it  may  be  affirmed  to  exist.     In  the  one  class 
there  would  be  a  mere  revision  of  errors  and  irregularities,  or 
of  the  legality  and  correctness  of  the  judgments  and  decrees  of 
the  State  courts,  and  in  the  other  class  the  investigation  of  a 
new  case  arising  upon  new  facts,  although  having  relation  to 
the  validity  of  an  actual  judgment  or  decree,  or  the  party's  right 
to  claim  any  benefit  by  reason  thereof."52     A  suit  to  make  the 
judgment  or  decree  of  a  State  court  the  judgment  or  decree,  re- 
spectively, of  the  Federal  court  can  be  maintained  at  common 

BO  Graver  v.  Faurot,  64  Fed.  241:  v.   Moore.    74    Fed.   945;    Strand    v. 

Little    Rock    Ry.    Co.   v.    Burke.    6fi  Griffith,    C.    C.    A.,    144    Fed.    828; 

Fed.  83;  Hall  v.  Ames,  C.  C.  A.,  190  Schultz  v.  Highland  Gold  Mines  Co.. 

Fed.    138.      But   see   Northern    Pae.  158    Fed.    337.      But    see   Travelers' 

Ry.  Co.  v.  Kurtzman,  82   Fed.  241.  Protective  Ass'n  v.  Gilbert,  C.  C.  A., 

5192  V.  S.  10.  23  L.  ed.  524;   Cf.  55  L.R.A.  538.  Ill   Fed.  269;   Bailey 

Arrowsmith    v.    Gleason.    129    U.    S.  v.  Willeford,  126  Fed.  803, 

86.  32  L.  ed.  630;   Robb  v.  Vo,  155  82,  25  L.  ed.  407.  408.     See  Furnald 
U.    S.    13,    39    L.    ed.    52;    Hatch    v.  52  Barrow  v.  Hunton,  99  U.  S.  80. 

Ferguson.    52    Fed.    833;    Davenport  v.  Glenn.  56  Fed.  372. 


150  ORIGINAL    JURISDICTION.  [§    ol 

law53  and  in  equity.54  The  Federal  court  may  take  jurisdic- 
tion of  a  creditor's  bill  to  enforce  a  judgment  of  the  State  court 
in  the  same  district.55  Proceedings  supplementary  to  execution 
under  the  judgment  of  a  State  court  authorized  by  State  stat- 
utes against  a  judgment  debtor  or  third  persons  cannot  be  insti- 
tuted in  or  removed  to  the  Federal  courts,  although  a  creditor's 
bill  may  be.56  A  petition,  after  judgment  in  a  State  court,  by 
plaintiff  in  ejectment  to  have  the  defendant's  damages  allowed 
to  him,  is  a  mere  incident  to  the  ejectment  suit  and  the  Federal 
courts  can  take  no  jurisdiction  of  it.57  It  has  been  held  that  a 
bii]  cannot  be  maintained  to  set  aside  or  interfere  with  the  en- 
forcement of  an  interlocutory  decree  in  a  cause  pending  in  an- 
other court,  when  such  decree  is  not  a  contempt  of  a  Federal 
court.58  It  has  been  held  that  where  the  jurisdiction  depends 
solely  upon  the  ancillary  nature  of  the  bill,  upon  the  dismissal 
of  the  former  suit  the  ancillary  suit  must  be  dismissed  for  want 
of  jurisdiction;59  and  that  relief  germane  to  the  ancillary  re- 
lief, if  the  prayer  for  the  same  does  not  make  the  bill  multi- 
farious, can  be  granted,  although  an  independent  original  bill 
for  such  other  relief  could  not  have  been  maintained  in  the  Fed- 
eral court;  but  that  if  the  ancillary  relief  is  denied,  all  other 
prayers  for  relief  fall  with  the  same;  and  that  affirmative  re- 
lief against  a  person  who  is  not  a  party,  nor  a  privy,  to  the  orig- 
inal action,  and  whose  claims  have  not  accrued  prior  to  its  com- 
mencement, cannot  be  granted.60  The  dependence  of  an  ancil- 
lary suit  upon  an  original  suit  for  purposes  of  jurisdiction  does 
not  throw  both  cases  into  hotchpot,  and  dispense  with  the  ordi- 
nary rules  of  pleading  and  practice  as  to  parties  proper  and 
necessary  to  each  cause  of  action.  The  parties  to  the  original 
bill  have  no  more  right  to  intervene  in  the  dependent  cause  than 
if  the  court  had  independent  jurisdiction  of  the  same;  and  after 

53  Barr  v.  Simpson,  Baldwin.  543.       253:    s.    c.    10    Fed.    406;    Flash    v. 

54  See    Davis    v.    Davis,    65    Fed.       Dillon,  22  Fed.  ]. 
380;    Collins    v.    Ashland,    112    Fed.  "Chapman    v.    Barger.    4    Dillon, 

5S7. 


175. 

55  Feidler  v.   Bartleson.   C.   C.   A.. 


58  Fvnnald   v.   Glenn.   (  .   C.   A..   04 
Fed.  49. 


161    Fed.  30.  59  Cabaniss   v.    Beep   Min.   Co.,   C. 

56  Webber   v.   Humphreys,    5    Dill.  C.  A.,  110  Fed.  3] 8. 

223:  Poole  v.  Thatcherdeft,  19  Fed.  60  Campbell   v.  Golden  Cycle  Min. 

49:    Buford  v.  Strother,  3  McCrary,  Co.,    141    Fed.   (110.  014.   (116    017. 


52] 


CUSTODY  OF   STATE  COURTS. 


151 


jurisdiction  has  been  acquired,  the  pleadings,  practice  and  pro- 
ceedings are  pursued  exactly  as  if  it  were  an  original  >uir.61 
The  court  does  not  in  the  second  suit  take  judicial  notice  of  the 
pleadings  or  proceedings  in  the  former  litigation,  unless  they 
are  formally  put  in  evidence.62 

§  52.  Property  in  the  custody  of  another  court  of  co- 
ordinate jurisdiction.  In  general.  A  court  of  the  United 
States,  through  a  spirit  of  judicial  comity,  will  usually  refuse 
to  interfere  with  property  in  the  custody  of  a  State  court.1  Con- 
versely, it  will  not  tolerate  interference  by  a  State  court  with 
property  over  which  it  has  taken  jurisdiction.2 

It  has  been  said  that  "the  forbearance  which  courts  of  co- 
ordinate jurisdiction,  administered  under  a  single  system,  exer- 
cise towards  each  other,  whereby  conflicts  are  avoided,  by  avoid- 
ing interference  with  the  process  of  each  other,  is  a  principle 
of  comity,  with  perhaps  no  higher  sanction  than  the  utility 
which  comes  from  concord;  but  between  State  courts  and  those 
of  the  United  States,  it  is  something  more.  It  is  a  principle  of 
right  and  of  law,  and  therefore  of  necessity.  It  leaves  nothing 
to  discretion  or  mere  convenience.  These  courts  do  not  belong 
to  the  same  system,  so  far  as  their  jurisdiction  is  concurrent; 
and  although  they  co-exist  in  the  same  space,  thev  are  in.lc 
pendent,  and  have  no  common  superior.  They  exercise  juris- 
diction, it  is  true,  within  the  same  territory,  but  not  in  the  same 
place;  and  when  one  takes  into  its  jurisdiction  a  specific  thing, 
that  is  as  much  withdrawn  from  the  judicial  power  of  the  other 
as  if  it  had  been  carried  physically  into  a  different  territorial 
sovereignty.     To  attempt  to  seize  it  by  a  foreign  process  is  fu- 


61  Continental  Tr.  Co.  v.  Toledo. 
St.  L.  &  K.  C.  R.  Co..  82  Fed.  642, 
645.  per  Taft.  J. 

62  Richardson  v.  Loree.  94  Fed. 
375.     But  see  infra,  §  329. 

§  52.  IHagan  v.  Lufcas,  10  Pet. 
400,  9  L.  ed.  470:  Taylor  v.  Carry]. 
20  How.  583;  Peale  v.  Phipps,  14 
How.  368,  14  L.  ed.  459;  Levi  v.. 
Columbia  Ins.  Co.,  1  Fed.  20G;  Hub- 
bard v.  Bellow.  3  Fed.  447:  Union 
Mut.  Life  Ins.  Co.  v.  University  of 
Chicago.  6  Fed.  443:  Hutchinson  v. 
Green.  (1  Fed.  833.  830-839:   Hamil- 


ton v.  Chouteau.  6  Fed.  339:  Tleid- 
ritter  v.  Elizabeth  Oil-cloth  Co.,  112 
U.  S.  294,  28  L.  ed.  729.  Rut  see 
Dwight  v.  Central  Vermont  II.  Co.. 
9  Fed.  785. 

2  Freeman  v.  Howe.  24  How. 
450.  Hi  1..  ed.  749;  I leidrittor  v.  Kli/ 
abeth  Oil-cloth  Co..  112  U.  S.  294.  2S 
L.  ed.  729 ;  Sharon  v.  Terry.  1 
L.R.A.  572.  36  Fed.  337:  Cuv.-ll  v. 
Heyman.  Ill  U.  S.  176,  28  !..  ed. 
.".'.hi:  En  re  Tyler.  149  U.  S.  Hil.  186. 
37  L.  ed.  689,  090:  White  v.  Schln- 
erb,  178  U.  S.  542.  44   L.  ed.   1  is:; 


152  ORIGINAL    JURISDICTION.  [§    52 

tile  and  void."3  "This  rule,  in  its  application  to  Federal  and 
State  courts,  being  the  outgrowth  of  necessity,  is  a  principle  of 
right  and  of  law,  which  leaves  nothing  to  the  discretion  of  a 
court,  and  may  not  be  varied  to  suit  the  convenience  of  liti- 
gants."' 4 

"When  a  court  of  competent  jurisdiction  has,  by  appropriate 
proceeding's,  taken  property  into  its  possession  through  its  offi- 
cers, the  property  is  thereby  withdrawn  from  the  jurisdiction  of 
all  other  courts.  The  latter  courts,  though  of  concurrent  juris- 
diction, are  without  power  to  render  any  judgment  which  in- 
vades or  disturbs  the  possession  of  the  property  while  it  is  in 
the  custody  of  the  court  which  has  seized  it.  For  the  purpose 
of  avoiding  injustice  which  otherwise  might  result,  a  court  dur- 
ing the  continuance  of  its  possession  has,  as  incident  thereto 
and  as  ancillary  to  the  suit  in  which  the  possession  was  acquired, 
jurisdiction  to  hear  and  determine  all  questions  respecting  the 
title,  the  possession  or  the  control  of  the  property.  In  the  courts 
of  the  United  States  this  incidental  and  ancillary  jurisdiction  ex- 
ists, although  in  the  subordinate  suit  there  is  no  jurisdiction 
arising  out  of  diversity  of  citizenship  or  the  nature  of  the  con- 
troversy. Those  principles  are  of  general  application  and  not 
peculiar  to  the  relation  of  the  courts  of  the  United  States  to  the 
courts  of  the  States;  they  are,  however,  of  especial  importance 
with  respect  to  the  relations  of  those  courts,  which  exercise  in- 
dependent jurisdiction  in  the  same  territory,  often  over  the  same 
property,  persons,  and  controversies;  they  are  not  based  upon 
any  supposed  superiority  of  one  court  over  the  others,  but  serve 
to  prevent  a  conflict  over  the  possession  of  property,  which 
would  be  unseemly  and  subversive  of  justice ;  and  have  been  ap- 
plied by  this  court  in  many  cases,  some  of  which  are  cited,  some- 
times in  favor  of  the  jurisdiction  of  the  courts  of  the  States 
and  sometimes  in  favor  of  the  jurisdiction  of  the  courts  of  the 
United  States,  but  always,  it  is  believed,  impartially  and  with  a 
spirit  of  respect  for  the  just  authority  of  the  States  of  the 
Union."5     This  is  a  general  rule  of  comity,  which  usually  pre- 

3  Mr.    Justice    Matthews     in     Co-  4  Thayer.    J.,    in    Merritt    v.    Am. 

veil  v.  Heyman,  111  U.  S.  176.  1S2,  Steel    Bar<re   Co..   70    Fed.   228,   231. 

28  L.  ed.  390,  392;   approved   in  Re  5  Mr.    Justice    Moody    in    Waliash 

Tyler,  149  U.  S.  164,  186,  37  L.  ed.  Railroad    Co.    v.    Adelhert    College, 

089.   696,  per   Fuller.  C.  J.  208  U.  S.  38.  53.  52  L.  ed.  378.  3*5. 


§  52] 


CUSTODY   OF    STATE    COURTS. 


153 


vails  between  courts  of  the  same  State.6  Even  where  the  cus- 
tody of  the  State  court  has  been  acquired  through  fraud,  the 
Federal  court  will  usually  not  interfere  so  lone;  as  the  former 
retains  its  hold  upon  the  property.7  An  objection  founded  upon 
this  rule  does  not  put  the  jurisdiction  of  the  court  at  issue  so 
that  the  question  can  be  certified  immediately  to  the  Supreme 
Court.8  It  has  been  held  that  after  the  trial  of  an  action  at 
common  law  it  is  too  late  to  raise  this  objection  to  the  jurisdic- 
tion.9 But  where  the  trustee  elected  by  the  creditors  of  an  in- 
solvent had  failed  to  claim  property  until  after  a  levy  thereupon 
under  a  Federal  judgment,  on  his  intervention  a  decree  was  en- 
tered setting  aside  the  levy,  upon  his  payment  of  the  costs  of 
the  same  and  filing  an  order  of  the  State  court  authorizing  him 
to  take  possession.10  This  doctrine  does  not  prevent  the  removal 
to  the  Federal  court,  in  a  proper  case,  of  a  suit  in  which  a  State 
court  appointed  a  receiver,11  or  taken  property  into  its  posses- 
sion under  a  common-law  writ ; 12  nor  a  suit  to  set  aside  a  mort- 
gage, which  the  mortgagee  claims  to  be  a  valid  lien  upon  a  fund 
in  the  possession  of  a  Federal  court  of  bankruptcy.13  It  was  re- 
cently said  by  the  Supreme  Court  of  the  United  States,  that 
"the  declaration  of  a  lien  on  the  property  is  a  step  toward  the 
invasion  of  its  possession,  which  we  have  held  to  be  beyond  the 
jurisdiction  of  the  State  court."  14    Before  that  decision,  it  was 


6  O'Malioney  v.  Belmont,  62  N.  Y. 
133.  149;  Milwaukee  R.  R.  Co.  v. 
Milwaukee  &  Minnesota  R.  R.  Co., 
20  Wis.  165,  88  Am.  Dec.  735. 

1  Thayer.  J.,  in  Merritt  v.  Amer- 
ican Steel-Barge  Co..  79  Fed.  228, 
231. 

8  Attleborough  Nat.  Bank  v.  N. 
W.  Mfg.  &  C.  Co.,  28  Fed.  113; 
Louisville  Tr.  Co.  v.  Knott.  191 
U.  S.  225,  48  L.  ed.  159,  overruling 
Shields  v.  Coleman.  157  I".  S.  168. 
39  L.  ed.  660. 

9  Oilman  v.  Perkins,  7  Fed.  887. 
See  Ei  win  v.  Lowry.  7  How.  172, 
12  L.  ed.  655:  Mo.  Pac.  R.  Co.  v. 
Fitzgerald,  100  V.  S.  556,  40  L.  ed. 
536:   infm,  §  53. 

lOGeilinger  v.  Philippi.  133  U. 
S.  246.  257.  33  L.  ed.  614,  617. 


11  In  re  Iowa  &  Minn.  Constr. 
Co..  10  Fed.  401.  Where,  however, 
all  the  property  of  a  foreign  cor- 
poration had  been  placed  in  the 
hands  of  a  receiver  appointed  by 
the  State  court,  the  Federal  court 
said,  that  a  case  instituted  by  at- 
tachment, which  had  been  removed 
thereto,  should  be  remanded,  (iold- 
berg,  Bowen  &  Co.  v.  German  Ins. 
Co..  152  Fed.  831,  834. 

12  Ke,n  v.  Huidekoper.  103  V.  S. 
485,  491,  492,  26  L.  ed.  354.  356. 
357. 

13  Frank  v.  Yollkommer.  205  U. 
S.   521.   51    L.  ed.   911. 

14 Wabash  Railroad  Co,  v.  Adel- 
bert  College.  208  U.  S.  609,  (ill.  52 
L.  ed.  642.  643,  S,  <■..  2(>S  V.  S.  3S, 
52  L.  ed  79:   Citv  of  New  Orleans  v. 


154 


ORIGINAL    JURISDICTION. 


[i 


held  that  the  doctrine  <  1  i « 1  not  prevent  a  suit  to  foreclose  a  mort- 
gage, or  to  establish  a  lien,  upon  property  in  a  State  court's  ens- 
tody;  15  provided  that  no  sale  was  ordered  until  the  proceedings 
in  the  State  court  were  terminated;16  and  that  neither  the  sher- 
iff, nor,  without  the  permission  of  the  court,  a  State  receiver 
was  a  necessary  party  to  the  suit;17  that  a  Federal  court  may 
foreclose  a  mortgage  upon  property,  held  by  a  receiver  appointed 
by  a  State  court,  in  a  suit  to  which  the  mortgagee  was  not  a 
party,  and  can  then  determine  the  claim  of  the  holders  of  re- 
ceiver's certificates  issued  under  the  order  of  the  State  court  to 
a  preference  over  the  mortgage;18  that  a  State  court  may  fore- 
close an  attorney's  lien  upon  a  cause  of  action  after  the  removal 
of  the  case  to  the  Federal  court,  subsequent  to  a  settlement  be- 
tween the  parties;19  that  a  State  court  may  institute  proceed- 
ings to  condemn  land,  pending  a  suit  in  equity  in  a  Federal 
court  for  an  injunction  against  a  trespass  upon  the  same  by  the 
respondent  in  the  condemnation  proceedings,  or.  in  the  alterna- 
tive, for  the  payment  of  its  value;20  that  a  State  court  proceed- 
ings to  condemn  land,  pending  a  suit  in  equity  in  a  Federal 
court  to  condemn  the  property  for  public  pprposes;21  that  a 
proceeding  in  a  State  court  for  a  writ  of  assistance,  under  a  fore- 


Howard.  C.  C.  A.,  160  Fed.  .103,  a 
partition  suit.  See  Security  Trust 
Co.  v.  I'll  ion  Trust  Co..  134  Fed.' 
301  :  Lang  v.  Clioctaw.  Oklahoma  & 
Gulf  R.  Co..  C.  ('.  A..  ltfO  Fed.  355. 
15 Wheelwright  v.  St.  Louis.  X. 
().  &  O.  C.  &  T.  Co..  50  Fed.  700, 
711:  Gates  v.  Bucki,  .53  Fed.  001. 
968;  Edwards  v.  Hill.  C.  ('.  A..  59 
Fed.  7-23:  Jeriks  v.  Brewster.  00 
Fed.  02")-.  holding  that  where  a 
person,  not  a  party  to  a  suit  in 
a  Federal  court,  had  subsequently 
to  the  institution  of  the  same  be- 
gun an  action  in  the  State  court, 
to  foreclose  his  lien,  to  which  the 
Federal  plaintiff  was  one  of  the 
defendants,  the  decree  of  the  State 
court  bound  the  parties  to  the 
same  and  the  purchaser  of  the 
property,  pending  1he  litigation 
under     the    decree     of    the     federal 


court.  Metropolitan  Trust  Co.  v. 
Lake  Cities  Fl.  Ry.  Co..  100  Fed. 
897.  Contra,  Cochran  v.  Pittsburg, 
S.  &  X.  R.  Co..  158  Fed.  540:  Cohen 
v.  Solomon.  Gfi  Fed.  411:  Hardin  v. 
Union  Tr.  Co.  of  Philadelphia.  Pa.. 
C.  C.  A..  191   Fed.  152. 

16  Wheelwright  v.  St.  Louis.  X". 
O.  &  O.  C.  &  T.  Co..  50  Fed.  700. 
711.  But  see  Frwin  v.  Lowry.  7 
How.  172.  12  L.  ed. 

17  Porter  v.  Sabin.  140  U.  S.  473, 
37  L.  ed.  815. 

18  Metropolitan  Trust  Co.  v.  Lake 
Cities  El.  Ry.  Co..  100  Fed.  897. 
Infra,  §  313. 

19  Oishei  v.  Pennsylvania  R.  R. 
Co..  101    App.  Div.    (X.  Y.i    473. 

20  Benjamon  v.  Brooklyn  Cnion 
El.  R.  Co..   120   Fed.  428. 

21  C  S.  v.  Eisenbeis.  C.  C.  A..  112 
Fed.  190. 


§   52] 


CUSTODY    (F    STATE    COURTS. 


l: 


.).) 


closure  decree  of  sale,  does  not  operate  as  a  bar  to  an  action  of 
ejectment  between  the  same  parties  for  the  same  property, 
brought  in  a  Federal  coiirt  by  the  applicant  for  the  writ;22  that 
the  pendency  in  the  State  court,  of  an  action  of  ejectment,  docs 
not  prevent  a  suit  in  the  Federal  court,  by  the  defendant  against 
the  plaintiff,  to  quiet  the  title  to  the  same  land;23  nor  an  action 
in  personam  between  the  same  parties  involving  the  same  issm  s; 
provided  that  the  property  is  not  seized  therein.24  It  has  been 
held  that  the  pendency  of  a  suit  in  a  Federal  court  to  fpreclose 
a  lien  upon  timber  on  certain  lands  does  not  prevent  an  attach- 
ment upon  the  same  timber  in  a  subsequent  action  at  law  in  the 
State  court  for  a  breach  of  another  contract  for  the  sale  of  part 
of  the  same;  25  that  property  seized  and  sold  by  an  internal  reve- 
nue collector,  under  the  statutes  of  the  United  States,  cannot  be 
replevied  from  the  purchasers  by  the  former  owner,  under  proc- 
ess from  the  State  court,  since  the  remedy  for  a  wrongful  seiz- 
ure, given  by  the  statute,  is  exclusive.26  Property  in  the  posses- 
sion of  a  statutory  receiver,  not  appointed  by  the  court,  such  as 
a  receiver  of  a  national  bank  appointed  by  a  Comptroller  of  the 
Currency,  is  not  considered  to  be  in  the  court's  custody.27  Prop- 
erty is  deemed  to  be  in  the  custody  of  the  court  from  the  time 
when  a  suit  or  action  seeking  to  have  it  placed  there  has  been 
begun ;  either  by  the  levy  of  a  writ  in  a  proceeding  in  rem;2*  or 
by  the  filing  .of  a  bill  praying  the  appointment  of  a  receiver;29 


22  Lamar  v.  Spalding,  C.  C.  A., 
]54  Fed.  27. 

23  North  Carolina  Mining  Co.  v. 
Weatfeldt,  151  Fed.  290.  Where  in 
an  action  of  ejectment  in  a  State 
court  defendants  filed  a  counter- 
claim alleging  that  they  were  in 
possession  and  praying  a  determina- 
tion of  conflicting  claims  in  accord- 
ance with  the  State  statutes  (Revis- 
al  N.  C.  1005,  §  1580),  it  was  held 
that  complainant  could*  not  subse- 
quently sue  in  equity  in  the  Federal 
courts  for  similar  relief.  W'est- 
feldt  v.  North  Carolina  Min.  Co.,  C. 
C.   A.,   166   Fed.  TOG. 

24RPjall  v.  Greenhood.  00  Fed. 
784;  Merritt  v.  American  S.  B.  Co., 
79   Fed.   228:    Copeland  v.   Binning, 


C.  C.  A..  127  Fed.  550.  Infra,  §  57. 
Cf.  Huntington  v.  Laidley.  176  U.  S. 
068.  44  L.  ed.  630.  But  see  infra, 
§    177. 

25vP1>on  v.  Camp.  C.  C.  A.,  191 
Fed.'  712. 

26  Allen  v.  Sheridan.  14.3  Fed.  963. 

27  In  re  Chetwood.  10.")  U.  S.  44:5. 
41    L.  ed.  782. 

28  Taylor  v.  Carryl,  20  How.  583, 
15  L.  ed.  1028;  Heidritter  v.  Eliza- 
beth Oil-cloth  Co..  112  U.  S.  204. 
2S  L.  ed.  720;  U.  S.  v.  Eisenbeis,  (  . 
C.  A..  112  Fed.  190. 

29  Farmers'  L.  &  T.  Co.  v.  Lake 
St.  El.  B.  Co..  177  T.  S.  51.  44  L.  ed. 
067.  Cf.  Humane  Bit  Co.  v.  Barner, 
1  17    Fed.  316. 


156 


ORIGINAL    JURISDICTION. 


[§    52 


or  by  the  filine;  of  a  bill  for  the  distribution  of  the  assets  of  a 
corporation ; 30  or,  it  has  been  held,  by  the  issue  of  a  restraining 
order  upon  the  tendering  of  a  bill  for  filing,  upon  notice  to  the 
defendants,  although,  because  of  the  absence  of  some  of  them, 
leave  to  file  was  not  granted  until  subsequent  to  the  institution 
of  a  suit  in  the  State  court ; 31  or  by  an  adjudication  in  bank- 
ruptcy.32 It  has  been  held  that  property  is  not  put  into  the 
custody  of  a  State  court  by  the  institution  of  a  suit  to  establish 
and  enforce  a  lien  thereupon,  when  no  actual  possession  has  been 
taken;33  nor  by  the  filing  of  a  bill,  which  does  not  pray  for  a 
receiver,  when  a  receiver  is  appointed  by  another  court  before 
the  first  court  is  asked  to  make  such  an  appointment.34  In  per- 
sonal actions,  the  priority  of  a  suit  is  ordinarily  determined  by 
the  time  when  the  parties  are  served  with  process  and  not  by 
the  date  of  the  filing  of  any  papers  in  the  same.35  Property 
continues  in  the  custody  of  a  court  until  the  cause  is  practically 
terminated,  or  the  custody  finally  abandoned;  although,  it  has 
been  held,  that  a  formal  order  of  termination  is  not  indispen- 
sable.36 When  a  receiver,  appointed  by  a  Federal  court,  has 
been  discharged  upon  the  filing  of  a  bond  by  a  defendant,  the 
Federal  court  abandons  its  custody  of  the  property  and  a  State 
court  may  appoint  a  receiver  thereof;37  and  it  is  improper  for 
the  District  Court  of  the  United  States  to  vacate  its  order  of 


30  Louisville  T.  Co.  v.  Knott, 
C.  C.  A..  130  Fed.  820. 

31  St.  Louis  &  S.  F.  R.  Co.  v. 
Hadley.  155  Fed.  220. 

32  White  v.  Schloerb.  178  U.  S. 
542,   44  L.  ed.  1183. 

33  Compton  v.  Jesup,  G8  Fed.  263, 
283;  Morrill  v.  Am.  Reserve  Bond 
Co..  151  Fed.  305.  See  Jacob  Tome 
Institute  v.  YYhitcomb,  C.  C.  A., 
1G0  Fed.  835.  See  Rodgers  v.  Pitt, 
90  Fed.  60S.  673.  Rut  where  the 
State  courts  had  held  that,  under 
its  statutes,  the  filing  of  a  petition 
was  the  institution  of  the  suit,  it 
was  held  that  the  filing  of  a  petition 
for  partition  precluded  a  subsequent 
suit  in  the  Federal  court  prior  to 
the  service  of  process.     Mound  City 


Co.  v.  Castleman,  C.  C.  A.,  187  Fed. 
921,  allirming  177  Fed.  510. 

34  Knott  v.  Evening  Post  Co.,  124 
Fed.  342. 

35  1Vnoist  v.  Smith.  191  Fed.  514. 

36  Buck  v.  Piedmont  &  A.  L.  Ins. 
Co.,  4  Fed.  849;  Andrews  v.  Smith, 
5  Fed.  S33;  Lake  Nat.  Bank  7. 
Wolfeborough  Saw  Bank.  C.  C. 
A.,  78  Fed.  517;  Foster  v.  Lebanon 
Springs  R.  Co..  100  Fed.  543.  But 
see  Shields  v.  Coleman,  157  U.  S. 
168.  181,  39  L.  ed.  660.  665;  Mis- 
souri Pac.  R.  Co.  v.  Fitzgerald,  160 
U.  S.  556,  40  L.  ed.  536. 

37  Shields  v.  Coleman.  157  U.  S. 
168,  39  L.  ed.  660.  But  see  Union 
Trust  Co.  v.  Rockford.  R.  I.  &  St.  L. 
R.  Co.,  6  Biss.  197;  §  55  infra. 


§  52] 


CUSTODY    OF    STATE    COURTS. 


157 


discharge  and  claim  possession  by  virtue  of  its  prior  receiver- 
ship ;  38  but  where,  before  a  receiver  appointed  by  a  State  court 
had  taken  possession,  an  appeal  accompanied  by  a  supersedeas 
staying  proceedings  was  taken  from  a  State  court  of  review, 
which  subsequently  affirmed  the  order,  a  receiver  appointed  by 
a  Federal  court  pending  the  appeal  was  directed  to  surrender 
his  possession  to  the  State  receiver.39  The  discharge  of  a  Fed- 
eral receivership,  before  the  appointment  of  a  State  receiver, 
was  held  to  validate  the  latter ;  although  made  in  a  suit  sustained 
during  the  pendency  of  the  Federal  receivership.40  It  has  been 
held  that  a  State  sheriff  may  seize  property  while  still  in  the 
possession  of  the  United  States  marshal,  after  an  order  by  the 
Federal  court  directing  its  return  to  its  owner.41  Where  the 
Federal  court,  in  its  decree  of  foreclosure  and  sale,  reserved,  for 
future  adjudication,  all  questions  arising  under  the  pleadings 
or  proceedings  not  therein  disposed  of  or  determined ;  it  was 
held,  that  a  State  court  had  no  power  to  establish,  or  to  fore- 
close, a  lien  upon  the  property  in  the  hands  of  a  purchaser  at 
the  foreclosure  sale.42  But  not  when  there  is  no  such  reserva- 
tion; even,  it  has  been  held,  when  the  decree  required  the  pur- 
chaser to  assume  the  obligation  that  the  lien  secured.43  It  has 
been  held  that  a  State  court  may  take  jurisdiction  of  a  suit 
against  the  purchaser  at  a  foreclosure  sale,  to  enforce  his  lia- 
bility to  pay  a  debt  of  the  mortgagor,  which  he  assumed  as  part 
of  the  consideration.44  It  has  been  held  that  comity  requires  a 
State  court  to  be  bound  by  the  Federal  court's  determination, 
as  to  when  the  latter's  possession  and  control  of  property,  of 


38  Shields  v.  Coleman,  157  U.  S. 
]G8,  39  L.  ed.  GOO.  But  see  Union 
Trust  Co.  v.  Rockford,  R.  I.  &  St.  L. 
R.  Co..  6  Biss.  197,  §  55,  infra. 

39  Texas  v.  Palmer,  C.  C.  A.,  22 
L.R.A.(N.S.)  316..  158  Fed.  705; 
Aff'd.  Palmer  v.  Texas.  212  U.  S. 
118. 

40  Liggett  v.  Glenn,  51  Fed.  381. 

41  Daniels  v.  Lazarus,  65  Fed. 
718;  Lazarus  v.  McCarthy,  32  N. 
Y.   Supp.  833.     But   see    infra,   §   5G. 

42  Wabash  Railroad  Co.  v.  Adel- 
bert  College,  20S  U.  S.  38,  52  L.  ed. 
379;   s.  c,  208  U.  S.  609.  52  L.  ed. 


G42:  Fidelity  Insurance  Trust  & 
Safe-Deposit  Co.  v.  Norfolk  &  W.  R. 
Co.,  88  Fed.  815;  Taylor  v.  Norfolk 
&  0.  V.  Ry.  Co.,  C.  C.  A.,  1G2  Fed. 
452;  Lang  v.  Choctaw,  Oklahoma  &. 
Gulf  R.  Co.,  C.  C.  A.,  160  Fed.  355. 

43  Tr.  Co.  of  America  v.  Norfolk  & 
S.  Ry.  Co.,  183  Fed.  803. 

44  Guardian  Trust  Cc*  v.  Kansas. 
City  Southern  Ry.  Co.,  C.  C.  A.,. 
146  Fed.  337.  But  see  Fidelity 
Insurance,  Trust  &  Safe-Deposit 
Co.  v.  Norfolk  &  W.  R.  Co.,  SS 
Fed.  S15. 


t58 


ORIGIN  AT    .iriUSDTCTIOlSr. 


[§   52 


which  it  first  acquired  jurisdiction,  ceases.45  This  doctrine  does 
not  prevent  the  filing  of  a  hill  to  set  aside,46  or  stay,47  proceed- 
ings under  a  judgment  or  decree  of  a  State  court;  nor,  it  has 
been  held,  a  hill  to  enforce  a  decree  of  a  State  court  pending  an 
appeal  therefrom  which  does  not  operate  as  a  supersedeas  ;48  nor 
does  the  doctrine  apply  to  a  case  where  the  Federal  courts  ex- 
•  ivise  superior  jurisdiction  for  the  purpose  of  enforcing  the  su- 
premacy of  the  Constitution  and  laws  of  the  United  States.49 
Where  a  Federal  court  has  appointed  a  receiver,  in  a  case  where 
a  receiver  was  previously  appointed  by  a  State  court,  the  proper 
remedy  is  an  application  by  the  State  receiver,  to  the  Federal 
court,  tor  the  delivery  of  the  possession  of  the  property  to  the 
applicant.50  It  has  been  said  that  where  a  State  court  has,  by 
proper  process,  secured  the  custody  or  dominion  of  specific  prop- 
erty, which  it  is  one  of  the  objects  of  a  subsequent  suit  in  the 
Federal  court  between  the  same  parties  to  subject  to  its  decree, 
the  latter  suit  should  not  be  stayed  or  dismissed,  but  should  pro- 
ceed as  far  as  may  be  without  creating  a  eojifiiet  concerning  the 
possession  or  disposition  of  the  property,  and  that  then,  if  need 
be,  it  should  be  stayed  until  the  proceedings  in  the  State  court 
have   been   completed  or   the   time   for   their   termination    has 

elapsed- 


45  Swinerton  v.  Oregon  Pac.  R. 
Co.,  123  Cal.  417,  56  Pac.  40.  So 
held  of  a  Federal  court.  Hall  v. 
Ames,  182  Fed.  1008. 

46Uaines  v.  Fuentes,  92  U.  S.  10, 
23  L.  ed.  524;  Barrow  v.  Hunton,  99 
U.  S.  80,  83,  25  L.  ed.  407.  408: 
Arro\vsniith  v.  Gleason,  129  U.  S. 
86,  32  L.  ed.  630:  Marshall  v. 
Holmes.  141  U.  S.  589,  35  L.  ed. 
870:  Rob!>  v.  Vos.  155  U.  8.  13,  39 
L.  ed.  52:  Sahlgard  v.  Kennedy,  2 
Fed.  295:  Simon  v.  Southern  Ky. 
Co.,  C.  C.  hi,  195  Fed.  50.  So  held 
of  a  decree  of  naturalization  and 
certificate  of  citizenship,  F.  S.  v. 
Plaistow,    189    Fed.    i 000: 

47  Kern  v.  Huidekbpor,  103  FT.  S. 
485,  491,  492.  26  L.  ed.  354.  356. 
357;   In   re  Iowa  &    IVinnesota   Con- 


struction Co:.  Ut  Fed.  401.  But  see 
Central  Xat.  Bank  v.  Stevens,  169 
U.  S.  432,  42  L.  ed.  807:  Cornue  v. 
Ingersoll,  C.  C.  A..  176   Yvd.   194. 

48  Baltimore  &  O.  R.  Co.  v.  Wa- 
bash R.  Co.,  C.  C.  A.,  119  Fed.  678. 

49Tefft  v.  Sterherg,  40  Fed.  2,  6, 
per  Speer,  J.,  citing  Covell  v.  Hey- 
mW,  111  U.  S.  176,  28  L.  ed.  390. 
But  see  infra,  §  59. 

50  Texas  v.  Palmer.  C.  C.  A.,  22 
L.R.A.(N.S.)  316,  158  Fed.  705; 
aff'd  Palmer  v.  Texas,  212  U.  S.  118. 
Waters-P.  S.  Oil  Co.  v.  Texas.  47 
Tex.  Civ.  App.  162,  103  S.  W.  836; 
State  v.  Port  Royal  &  Augusta  R.  R. 
Co.,  45  S.  C.  470,  23  S.  E.  363 ;  Peo- 
ple v.  New  York  City  Ry.  Co.,  57 
Misc.    (X.  Y.)    114. 

51  Mound  City  Co.  v.  Castleman, 
C.  C.  A.,  187  Fed.  921. 


53] 


INSOLVENT    ASSIGNMENTS. 


159 


§  53.  Property  covered  by  insolvent  assignments.  It 
has  been  held;  that  the  possession  of  an  assignee,  appointed  by 
an  insolvent  in  a  voluntary  assignment  is  not  the  possession  of 
a  State  court,  although  in  pursuance  of  a  State  statute  he  has 
tiled  a  bond  and  a  petition  for  the  settlement  of  his  accounts, 
praying  also  for  instructions  concerning  his  administration,  and 
that  the  Federal  court  consequently  could  appoint  a  receiver  of 
property  thus  assigned  ;x  that  where  a  State  court  has,  by  docket- 
ing the  proceeding,  taken  possession  of  property  covered  by  an 
insolvent's  assignment,  a  Federal  court  may  entertain  a  bill  to 
establish  a  claim  against  it,  but  it  may  not  attempt  by  process 
against  the  property  to  enforce  such  claim  after  it  has  been  es- 
tablished,2 nor  appoint  a  receiver,3  and  that  a  vessel  in  the  pos- 
session of  an  assignee,  appointed  by  a  voluntary  assignment  un- 
der the  insolvent  law  of  Minnesota,  cannot  be  taken  from  him 
by  a  marshal  of  the  United  States  upon  a  libel  in  rem  to  enforce 
a  claim  against  the  insolvent.4  Where  a  State  statute  provided, 
that,  on  the  making  "by  a  judgment  debtor  of  a  general  assign- 
ment for  the  benefit  of  creditors  within  ten  days  after  the  levy 
of  an  execution  on  his  property,  such  levy  should  be  dissolved 
and  the  property  turned  over  to  the  assignee;  it  was  held,  that 
the  same  applied  to  a  levy  under  a  judgment  of  the  Circuit 
Court  of  the  United  States,  and  that  the  assignee  might  apply 
to  the  Federal  court  for  the  release  of  the  levy  by  a  proceeding 
in  the  nature  of  a  supplemental  bill  in  equity.5  Where  the  trus- 
tee, under  an  insolvent  assignment,  had  failed  to  claim  property 
until  after  a  levy  thereupon  under  a  judgment  of  the  Federal 
court;  on  his  intervention  in  the  Circuit  Court  of  the  United 


§  53.  iPowers  et  al.  v.  Blue 
Grass  B.  &  L.  Ass'n  86  Fed.  705; 
under  Kentucky  statute;  Watson 
v.  Bettman.  88  Fed.  825;  under  New 
York  statute.  Cf.  Adler  v.  Fcker, 
2  Fed.  120:  The  James  Roy,  50  Fed. 
784;  George  T.  Smith,  etc..  Co.  v. 
McGroarty,  136  U.  S.  237:  Swofford 
Bros.  D.  G.  Co.  v.  Mills,  86  Fed. 
556;  under  Wyoming  statute,  sus- 
taining an  attachment  by  the  Fed- 
eral court:  Peale  v.  Phipps,  14  How. 
368,    14    L.    ed.    459.      Contra,    Val. 


Blatz  Brewing  Co.  v.  Walsh.  84  Fed. 
5;  under  Minnesota  statute. 

2  Edwards  v.  Hill,  C.  C.  A..  50 
Fed.  723.  726:  under  Kansas  stat- 
ute. 

3Ceilinger  v.  Philippi,  133  V .  S. 
246,  257.  33  L,  ed.  614.  617:  under 
Louisiana  statute;  Val.  Blatz  Brew- 
ing Co.  v.  Walsh,  84  Fed.  5:  under 
^Minnesota    statute. 

4  The  J.  G.  Chapman.  62  Fed. 
939. 

5  Rroehon  v.  Wilson.  C.  C.  A..  01 
Fed.   617;    under   Wisconsin   statute. 


1G0  oihgixal  jfrisdictiox.  [§   54: 

States,  a  decree  Was  entered  setting  aside  the  levy,  upon  his  pay- 
ment of  the  costs  thereof  and  filing  an  order  of  the  State  .court 
authorizing  him  to  take  possession.6 

§  54.  Property  in  the  custody  of  State  courts  of  probate. 
A  Federal  court  cannot  direct  the  distribution  of  all  the  assets 
held  by  an  executor  or  administrator,  at  least  so  far  as  to  affect 
the  rights  of  the  creditors,  legatees  or  next  of  kin,  who  are  citi- 
zens of  the  same  State  as  the  defendants,  and  who  have  no  right 
to  seek  the  Federal  jurisdiction.1  It  has  been  held  that  a  Fed- 
eral court  of  equity  cannot  entertain  a  hill  by  a  legatee,  to  com- 
pel an  accounting  by  the  surviving  partner,  and  a  payment  of  the 
balance  due  by  him  to  the  ex-eeutors  for  distribution,  when  the 
executors  and  the  survivor  are  citizens  of  the  same  state :  2  unless 
an  executor  is  the  surviving  partner.3  Xor  issue  an  execution 
against  the  estate  of  a  decedent ; 4  nor  compel  the  repayment,  by 
a  legatee,  of  a  surcharge  which  he  has  received  under  a  decision 
of  a  State  orphans'  court ; 5  nor  entertain  a  bill  to  set  aside  a 
sale  of  stocks,  made  by  executors,  and  to  take  the  proceeds  out 
of  their  possession;6  nor  a  bill  by  an  unsecured  creditor  of  a 
decedent  to  compel  an  accounting  by  the  executor,  when  a  pre- 
vious suit,  in  which  the  complainant  was  not  a  party,  had  been 
brought  for  an  accountinc;  by  such  executor;7  nor  to  compel 
an  executor  to  file  a  bond,8  nor  to  require  him  to  deliver  funds 
to  an  administrator  appointed  in  another  State ; 9  nor.  while 
the  administration  of  the  State  court  of  probate  is  pending, 
a  bill  by  the  surviving  husband  of  a  decedent  or  his  grantee 
against  her  administrator,  to  quiet  the  title  to  the  husband's 
share  of  her  separate  estate;10  nor  a  bill  to  prevent11  or  to  set 

SOeilinger  v.  Philippi.   133   U.  S.       ley  v.  Lavender, -21  Wall.  276,  22  L. 
240.  257,  33  L.  ed.  614.  617:   under       ed.   .136. 
Louisiana  statute.  5  Chandler    v.    Pomeroy.    87    Fed. 

S   r»4.     i  Byers  v.  McAuley.  140  V.       2G'2-  '2ti6- 
S.   60S.  47   L.  ed.  S67.     Cf'.   Hale  v.  6 dordan  v.  Taylor.  08  Fed.  643. 

Tvler.  115  Fed.  833.  830.  7T1,iel    Detective    Service    Co.    v. 

McClure,  130  Fed.  55. 

8  Field  v.  Camp.  103  Fed.  160. 

9\Vatkins  v.  Eaton.  C.  C.  A..  183 

3  Am.  Baptist  Homo  Mission  Soci-       y0(\     ^^ 

ety  v.  Stewart.  102  Fed.  076.  lOYliorpe  v.  Sampson.  84  Fed.  63. 

4  Williams    v.     Benedict;    8    How.  H  Miller  v.  Weston.  C.  C.  A.,  199 
107.  112.  12  L.  ed.  1007.  L008:  Yon-        Fed.  104. 


2  Moore  v.  Fidelity  Trust  Co..  134 
Fed.  480:  s.  c.  C.  C.  A..  138  Fed.  1. 


54] 


PROBATE. 


161 


aside  the  probate  of  a  will;12  unless  the  State  law  authorizes 
such  a  bill  to  be  filed  in  a  proceeding  inter  partes,  which  is  not 
a  mere  continuation  of  the  probate  proceedings.13  But,  after  a 
State  court  of  probate  has  begun  the  administration  of  the  as- 
sets of  a  decedent,  a  Federal  court  may  establish  a  debt  against 
the  estate,14  and  direct  the  payment,  by  the  personal  representa- 
tive or  his  sureties,  of  such  debt,15  or  of  a  legacy,  or  of  a  dis- 
tributive share ; 16  at  least  where  the  complainant  does  not  seek 


12  Ellis  v.  Davis,  109  U.  S.  485, 
27  L.  ed.  1000 :  Farrell  v.  O'Brien, 
TOO  U.  S.  89,  110,  50  L.  ed.  101,  111  : 
Oakley  v.  Taylor.  64  Fed.  245,  under 
Missouri  statute.  Stead  v.  Curtis, 
C.  C.  A.,  191  Fed.  529,  under  Cali- 
fornia statute.  The  orders  and  judg- 
ments of  probate  courts  in  the  due 
and  orderly  administration  of  es- 
tates are  conclusive  upon  the  Feder- 
al courts.  Johnson  v.  Waters.  Ill 
U.  S.  G40,  607.  4  Sup.  Ct.  619,  28 
L.  ed.  547;  Newberry  v.  Wilkinson, 
C.  C.  A.,  199  Fed.  673,  680.  Where 
the  probate  court  at  the  place  of 
domicile  of  the  testatrix  admitted 
to  probate  a  will,  but  rejected  a 
codicil  for  want  of  testamentary  ca- 
pacity, it  was  held  that  this  deci- 
sion must  be  followed  by  the  Federal 
court  in  the  northern  district  of 
New  York,  although  the  Circuit 
Court  of  New  York  had  admitted 
the  codicil  to  probate.  Higgins  v. 
Eaton,  C.  C.  A.,  183  Fed.  388,  re- 
versing 178  Fed.  153. 

13  Broderick's  Will,  21  Wall.  503. 
519.  22  L.  ed.  599,  605;  Farrell  v. 
O'Brien,  199  U.  S.  89,  110,  50  L.  ed. 
101,  111;  holding  that  this  cannot 
be  done  under  the  Washington  stat- 
ute: Richardson  v.  Oreen,  C.  C.  A., 
61  Fed.  423:  s.  c.  159  C.  S.  264, 
40  L.  ed.  142  (Oregon  statute)  ; 
Williams  v.  Crabb,  C.  C.  A.,  59 
L.R.A.  425,  117  Fed.  193,  204  (Illi- 
nois   statute):    Wart    v.    Wart.    117 

Fed.  Frac.  Vol.  I.— 11. 


Fed.  766  (Iowa  statute)  ;  Sawyer 
v.  White.  C.  C.  A.,.  122  Fed.  223 
I  Missouri  statute)  ;  Pulver  v.  Leon- 
ard, 176  Fed.  586,  under  Minnesota 
statute.     See  infra,  §§  76,  82. 

i*  Yonley  v.  Lavender,  21  Wall. 
276,  22  L.  ed.  536;  Hess  v.  Reynolds, 
113  U.  S.  73,  28  L.  ed.  927:  Schur- 
meier  v.  Connecticut  Mut.  Life  Ins. 
Co.,  C.  C.  A.,  171  Fed.  1. 

15  Yonley  v.  LaA^ender,  21  Wall. 
276,  22  L.  ed.  536;  Hess  v.  Reynolds, 
113  U.  S.  73,  28  L.  ed.  927.  See  also 
Erwin  v.  Lowry,  7  How.  172.  12  L. 
ed.   655. 

16  Payne  v.  Hook.  7  Wall.  425,  19 
L.  ed.  260;  Byers  v.  McAuley,  149 
U.  S.  608,  37  L.  ed.  867  ;  Brendel  v. 
Charch,  82  Fed.  262;  Waterman  v. 
Canal-Louisiana  Bank  &  Tr.  Co.. 
215  U.  S.  33.  54  L.  ed.  80:  Pulver  v. 
Leonard,  176  Fed.  586;  Order  of  St. 
Benedict  of  New  Jersey  v.  Stein- 
hauser,  179  Fed.  137;  Higgins  v. 
Eaton,  C.  C.  A.,  183  Fed.  388.  revers- 
ing 178  Fed.  153:  Am.  Baptist  Home 
Mission  Society  v.  Stewart,  192  Fed. 
976.  As  to  the  effect  upon  such  a 
proceeding  of  a  previous  interven- 
tion in  the  State  court  by  the  State 
claiming  an  escheat.  McClellan  \. 
Carland,  217  U.  S.  268,'  54  L.  ed. 
762;  S.  C.  C.  C.  A.,  187  Fed.  915. 
See,  also,  Barker  v.  Eastman.  192 
Fed.  659. 


162 


ORIGINAL    JURISDICTION. 


[§   54 


to  establish  a  claim  that  he  might  have  made  in  the  probate 
court,17  and  it  may  thus  or  otherwise  adjudicate  upon  the  con- 
struction of  a  will,18  and  compel  an  accounting  by  an  executor 
or  administrator;19  although,  in  one  such  case,  the  court,  after 
declaring  the  rights  of  the  parties  by  its  decree,  refused  to  take 
jurisdiction  of  an  accounting  and  left  that  matter  to  be  deter- 
mined by  the  appropriate  State  tribunal.20  It  may  entertain  a 
■bill  in  equity  against  testamentary  trustees  for  an  accounting, 
after  the  administration  of  the  personal  estate  by  the  executors 
has  been  terminated,  although  the  State  statute  gives  the  pro- 
bate court  jurisdiction  over  the  accounts  of  testamentary  trus- 
tees; provided  that  the  suit  in  the  Federal  court  was  begun  prior 
to  an  application  to  the  probate  court  for  an  account.21  In 
such  a  suit,  the  Federal  court  may  direct  a  final  distribution 
and  settlement  of  the  trust.22  It  has  been  held  that  the  Fed- 
eral court  may  fix  the  compensation  of  the  trustees;  and  that  it 
is  not  bound  by  orders  of  the  State  probate  court  fixing  such 
compensation,  which  were  made  after  the  bill  in  the  Federal 
court  was  filed.23  It  has  been  held:  that  a  Federal  court  may 
entertain  a  bill  in  equity  to  surcharge,  correct  and  set  aside,  a 
settlement  of  the  accounts  of  administrators,  which  has  been 
confirmed  by  a  decree  of  the  proper  State  court;24  to  set  aside 
;i  fraudulent  transfer  of  property,  made  by  an  administratrix 
with  the  sanction  of  the  State  probate  court;25  to  set  aside  a 
fraudulent  sale  of  land,  made  by  the  decedent  in  his  lifetime, 
although  the  State  probate  court  has  authority  to  grant  a  license 


17  MePherson  v.  Mississippi  Val- 
ley Tr.  Co.,  C.  C.  A.,   122  Fed.  367. 

18  Byers  v.  McAuley,  14!)  V.  S. 
608,  37  L.  ed.  867';  Toms  v.  Oven.  .32 
Fed:  417:  Wood  v.  Paine,  86  Bad. 
sii7:  Waterman  v.  (anal-Louisiana 
Bank  &  T.  Co..  21.",  V.  S.  33,  54  L. 
ed.   80;    Spcn.-cr    v.    Watkins.    C.    C. 

a..  169.  Fed.  ;;79. 

19  Payne  v.  Hook,  7  Wall.  425,  19 
L.  ed.  260*  Hale  v.  Tyler,  115  Fed. 
833.  839.  See  Comstock  v.  Herron, 
55  Fed.  803.  Newberry  v.  Wilkin- 
son. C.  C.  A.,  199  Fed.  673.  A  Fed- 
eral court  may  take  jurisdiction  of 
;■  -nit  by  the  foreign  guardian  of  an 


incompetent  to  compel  an  account- 
ing by  a  guardian  residing  within 
the  district.  Pulver  v.  Leonard, 
176  Fed.  586. 

20  Crocker  v.  Oakes.  117  Fed.  363. 

21  Herron   v.   Comstock,   C.   C.   A., 
139   Fed.   370. 

22  Herron   v.  Comstock,  C.  C.  A., 
139  Fed.  370. 

23  Herron   v.   Comstock,  C.   C.   A., 
139   Fed.  370. 

24  Bertha     Zinc     &     Mineral     Co. 
Vaughn,  88  Fed.  566. 

25  Central   Nat.   Bank   v.   Fitzger- 
ald. 94  Fed.  16. 


£     54]  PROBATE.  1G 


to  sell  the  same  and  thus  authorize  the  administrator  to  bring  a 
suit  for  the  same  purpose,  when  no  such  license  was  granted  pre- 
vious to  the  filing  of  the  hill ;  26  to  set  aside  a  release  obtained  by 
an  administrator  or  guardian  by  fraud  ; 27  to  set  aside  an  elec- 
tion obtained  from  a  widow  through  fraud;211  at  the  suit  of 
a  creditor  to  enjoin  an  administrator  from  paying  over  the 
money,  or  distributing  the  property  of  the  estate,  fcp  others 
joined  with  him  as  parties  defendant,  although  the  Federal 
court  cannot  ascertain  the  amount  of  unpaid  claims  nor  wheth- 
er the  estate  is  in  a  condition  for  final  distribution;29  to  enjoin 
an  ancillary  administrator  from  transmitting  the  assets  to  the 
court  of  original  administration  until  a  claim  of  a  creditor  has 
liecn  determined;30  after  the  determination  by  the  State  court 
is  complete,  to  subject  to  the  payment  of  a  debt  of  the  decedent, 
property  in  the  hands  of  a  distributee;81  a  bill  to  enforce  an  at- 
tachment on  the  estate  of  the  decedent,  levied  by  the  Federal 
court  before  his  death,  when  the  State  statute  authorizes  at- 
tachments and  executions  to  be  levied  upon  equitable  interests 
in  real  estate;32  to  sell  land  for  the  benefit  of  a  creditor  of 
the  estate,  when  the  administratrix  refuses  to  institute  a  pro- 
ceeding for  that  purpose  in  the  proper  State  court  under  statu- 
tory authority,  although  the  administration  is  still  pending 
in  the  State  court  undetermined;83  to  compel  specific  perform- 
ance, by  the  heirs  and  administrators,  of  a  contract  by  the  de- 
cedent in  relation  to  property  of  the  decedent,  which  is  in  the 
process  of  administration  in  the  State  court ; 34  to  compel  an  ex- 
ecutor to  pay  an  assessment  levied  after  the  decedent's  death 
upon  national  bank  stock,  which  he  holds;35  to  appoint  a 
receiver  of  the  decedent's  assets  within  the  district,  where  the 

26  Hate  v.  Tyler,  115  Fed.  833.  Fed.  627.     See  Lant  v.  Kinne,  C.  C. 

27.Pulver    v.    Leonard,    170    Fed.  A.,   75   Fed.   636. 

586.  33Brun    v.    Mann,    C.    C.    A..    12 

28  Eddy    v.    Eddy,    C.    C.   A.,    168  L.R.A.  (N.S.)    ]54,  151    Fed.   145. 
Fed.  590.  34  Davis  v.  Davis.  89  Fed.  532. 

29  Davis    v.    Davis,    89    Fed.    532.  35  In  re  Corma\vay,.17S  ['.  S.  421. 
30lngersoll    v.    Coram,    132    Fed.       44   L.   ed.   1134;    Wickham.  v.   Hull. 

168,   172;    aff'd  211  U.  S.  335.  60  Fed.  326;  Brown  v.  Ellis,  86  Fed. 

31  Hale    v.    Coffin,    114    Fed.    567.         357. 
.     32  Lant  v.   Manlev,    C.   C.   A.,    75 


164 


..i;h;ina"L  jurisdiction. 


[§   55 


executors  disagree  and  ran  not  act  together ; 36  and  when  no 
temporary  administrator  has  been  appointed,  pending  a  conflict 
in  the  court  of  probate  concerning  the  right  to  administration,87 
the  occupation  of  land  therein  included  by  the  widow  after 
her  quarantine  has  expired  under  a  claim  of  title  by  devise  does 
not  take  away  such  jurisdiction  ;  38  at  the  suit  of  a  minority  stock- 
holder, to  enjoin  one  of  two  executors  from  voting  upon  a  ma- 
jority of  the  stock  in  the  corporation  pending  litigation  in  the 
State  court,  which  has  enjoined  the  other  executor  from  voting 
thereupon.39  The  property  of  a  debtor  taken  into  the  custody 
of  a  Federal  court  by  seizure  under  process  issued  under  its 
judgment  remains  under  its  control  to  be  applied  in  satisfaction 
thereof,  notwithstanding  the  death  or  insolvency  of  the  judg- 
ment debtor  and  the  institution  of  proceedings  in  a  State  court 
to  administer  his  estate,  and  irrespective  of  subsequent  State 
legislation.40 

§  55.  Property  in  the  custody  of  receivers.  The  appoint- 
ment of  a  receiver  by  a  court,1  or  the  filing  there,  of  a  bill  pray- 
ing for  the  appointment  of  a  receiver,2  or  perhaps  the  present- 


36  Ball  v.  Topkins,  41  Fed.  486. 
See  infra,  §  302. 

37  Underground  El.  Rys*.  Co.  of 
London  v.  Owsley.  100  Fed.  671 ; 
s.  c,  C.  C.  A.,  176  Fed.  20. 

38  Underground  El.  Rys.  Co.  of 
London  v.  Owsley.  109  Fed.  671;  s. 
c.  C.  C.  A..  176  Fed.  20. 

39Villainil  v.  Hirsch,  13S  Fed. 
690.  As  a  condition  of  granting 
the  injunction,  the  court  enjoined 
the  holding  of  a  stockholders' 
meeting  until  the  dispute  between 
the  executors  had  been  decided  by 
the  state  court.  Villainil  v.  Hirsch, 
143  Fed.  654. 

40Hio  Grande  R.  Co.  v.  Gomila. 
332  U.  S.  478,  4S1 .  33  L.  ed.  400,  401 ; 
Leadville  Coal  Co.  v.  McCreery,  141 
U  B.  475,  35  L.  ed.  824:  Straine  v. 
Bradford  Sav.'B.  &  T.  Co..  88  Fed. 
571. 

§  55.  l, Shields  v.  Coleman,  157 
U.    S.    168,    39    L.    ed.    660;    Texas 


v.  Palmer,  C.  C.  A.,  22  L.R.A.(N.S.) 
316.  158  Fed.  705,  aff'd  Palmer  v. 
Texas,  212  U.  S.  118:  Garner  v. 
Southern  Mut.  Building  &  Loan 
Ass'n,  C.  C.  A..  84  Fed.  3.  28  C. 
C.  A.  381 :  Lancaster  v.  Asheville 
St.  Ry.  Co.,  90  Fed.  129:  Sulli- 
van v.  Algrern,  C.  C.  A.,  160  Fed. 
366;  Stirling  v.  Seattle,  R.  &  S.  Ry. 
Co.,  198  Fed.  913. 

2  Farmers'  Loan  &  Tr.  Co.  v. 
Lake  Street  El.  R.  Co.,  177  U.  S. 
51,  44  L.  ed.  667;  Appleton  Water 
Works  Co.  v.  Central  Trust  Co.,  C. 
C.  A.,  93  Fed.  286;  Holland  Trust 
Co.  v.  International  Bridge  &  Tram- 
way Co.,  C  C.  A.,  S5  Fed.  865. 
See  Palestine  Water  &  Power  Co.  v. 
Palestine,  91  Tex.  540,  44  S.  W.  814, 
40  L.R.A.  203;  affirming  41  S.  W. 
659.  Contra,  De  La  Vergne  Refrig- 
erating Mach.  Co.  v.  Palmetto  Brew- 
ing Co.,  72  Fed.  579;  where  the  Fed- 
eral court  appointed  a  receiver  in  a 


§    55]  CUSTODY  OF  KECEIVEKS.  105 

ment  to  the  court,  of  a  bill  praying  a  receiver  and  the  issue  of  a 
restraining  order  or  other  order  thereupon,3  prevents  the  ap- 
pointment of  a  receiver  of  the  same  property  by  a  court  of  co- 
ordinate jurisdiction;  except  perhaps  when  the  first  suit  is 
brought  by  creditors,  secured  or  unsecured,  or  stockholders,  and 
the  second  is  instituted  for  the  dissolution  of  the  corporation, 
which  is  not  prayed  in  the  first  suit.  In  such  a  case,  it  has  been 
held  that  the  prior  appointment  of  a  receiver  by  the  Federal 
court  will  not  prevent  the  appointment  of  one  for  the  same 
property  by  the  State  court,  in  an  action  to  dissolve  the  corpo- 
ration;  but  that  such  receiver  should  apply  to  the  State  court 
for  the  return  of  the  property  to  him.4  Upon  such  an  applica- 
tion by  temporary  receivers  appointed  in  a  dissolution  suit,  it 
was  held,  that  the  motion  should  be  denied,  without  prejudice  to 
its  renewal  in  case  their  appointment  should  be  made  perma- 
nent.5 The  fact  that  the  first  receivership  was  based  upon  the 
fraud  of  officers  and  directors  and  the  second  application  upon 
the  ground  of  insolvency,  does  not  affect  the  rule.6  It  has  been 
held  that  a  receiver  appointed  by  a  Federal  court  of  equity  will 
not  be  ordered  to  take  possession  of  property,  upon  which  a  State 
court  has  levied  an  attachment,7  or  other  process,8  before  his  ap- 
pointment was  prayed.  Where  a  State  court  had  attached  a 
debt,  before  the  court  of  another  State  had  appointed  the  re- 
ceiver of  the  creditor,  the  Federal  court  directed  that  judgment 
be  entered  against  the  receiver  in  an  action  by  him  to  collect 

foreclosure  suit,  after  a  rule  to  show  R.  Co..  53  Minn.  129.     See  City  Wa- 

cause  in  a  State  court  why  a  receiv-  ter  Co.  v.  Texas,  88  Tex.  600,  G04 ; 

er  should   not   be   appointed  upon   a  Alderson  Receivers.  §  20. 

stockholders'  bill,  and  refused  to  de-  5  Pennsylvania    Steel    Co.    v.    New 

liver    the    property    to    the    receiver  York  City  Ry.  Co.    (Lacombe,  J.,  S. 

subsequently  appointed  by  the  State  D.  X.  Y.),  N.  Y.  L.  J.,  February  4, 

court.  1008.     But  see  Robinson   v.  Mutual 

3  St.  Louis  &  S.  F.  R.  Co.  v.  Had-  Reserve  Life  Ins.  Co.,  162  Fed.  704. 
lev.   155  Fed.  220.  6  Stirling  v.  Seattle,  R.  &   S.   Ry. 

4  State  v.  Port  Royal  &  Augusta  Co.,  IDS  Fed.  913. 

R.   Co.,  45  S.  C.  470,"  23  S.  E.  363,  7  Southern  B.  &  T.  Co.  v.  Folsom, 

386;  Louisville,  New  Albany  &  Chi-  C.  C.  A.,  75  Fed.  929;  Hale  v.  Bugg, 

cago   R.   R.   Co.   v.   Cauble,   46   Ind.  82  Fed.  33;  Dodds  v.  Palmer  Moun- 

277,  280;    People  v.  New  York  City  tain  Tunnel  Co.,  1S8  Fed.  447. 

Ry.  Co.,  57  Misc.   (N.  Y.)    114;  Peo-  8  Lake    Bisteneau    Lumber    Co.    v. 

pie  v.  Hasbrouck,  57  Misc.    (N.  Y.)  Mimms.    22    So.    730,    49    La.    Ann. 

130;  St.  Louis  Car  Co.  v.  Stillwater  1283. 


166 


ORIGINAL    JURISDICTION. 


[§   55 


the  debt,  unless  he  should  consent  to  a  stay  of  proceedings  until 
the  State  court  had  acted  upon  the  matter.9  It  has  been  held 
that  the  entire  property  of  a  corporation  is  not  in  the  custody 
of  a  court  that  has  appointed  a  receiver  over  the  assets  of  an- 
other corporation,  which  owns  a  majority  of  its  stock  ami  oper- 
ates its  railroad  under  a  lease;  and  that  consequently,  a  State 
court  may  appoint  a  receiver  of  the  lessor,  after  the  appointment 
by  a  Federal  court  of  a  receiver  of  the  lessee  and  stockholder; 10 
but  this  rule  will  not  apply  if  the  Federal  court  has  extended 
the  receivership  to  the  interest  of  the  lessor  in  the  property.11 
A  stipulation  staying  proceedings  in  the  Federal  court,  after  a 
motion  for  a  receiver  has  been  made,  does  not  justify  the  subse- 
quent appointment  of  a  receiver  by  a  State  court.12  Where, 
after  the  appointment  of  a  receiver,  the  Federal  court  accepted 
a  bond  in  lieu  of  the  property  and  discharged  the  receiver,  it 
was  held  that  the  State  court  might  appoint  a  receiver;  and 
that  the  Federal  court  could  not  subsequently  appoint  another 
receiver  of  its  own  to  take  the  property  from  the  possession  of 
the  State  receiver;13  but  an  appeal  to  a  State  court  of  review 
from  the  order  appointing  a  receiver,  and  the  filing  of  a  super- 
sedeas bond,  which  stays  the  proceedings,  before  the  receiver  has 
taken  possession,  does  not  authorize  the  appointment  of  a  receiver 
by  the  Federal  court;  and  such  Federal  receiver  must  surren- 
der the  property  to  the  State  receiver  after  the  State  order  of 
appointment  has  been  affirmed  ;  although  such  appointment  was 
in  aid  of  a  decree,  an  appeal  from  which,  accompanied  by  a 
supersedeas,  is  still  pending  in  the  State  court  of  review.14  It 
has  been  held  that  the  appointment  by  the  Federal  court  of  a 
receiver  of  the  assets  of  a  lessor  does  not  oust  the  State  court 
of  jurisdiction  to  enjoin  the  directors  from  amending  the  lease  15 


9  Avery  v.  Boston  Safe  Deposit 
&   Trust  Co.,  72   Fed.   700. 

10  Central  R.  &  B.  Co.  v.  Farm- 
ers' L.  &  Tr.  Co.,  56  Fed.  357. 

11  Re  Metropolitan  Railway  Re- 
ceivership, 208  U.  S.  90,  52  L.  ed. 
403. 

12  McKcvlmey  v.  Weir,  C.  C.  A., 
118  Fed  S05. 

13  Shields  v.  Coleman,  157  U.  S. 
168.  39   L.  ed.  660.     But  see  Inter- 


state Ry.  Co.  v.  Philadelphia,  B.  & 
T.   St.   Ry.   Co.,   164   Fed.   770. 

H  Texas  v.  Palmer.  C.  C.  A..  22 
L.R.A.fX.S.)  316,  158  Fed.  705; 
aff'd.  Palmer  v.  Texas,  212  U.  S.  118, 
53  L.ed.  435:  Sullivan  v.  Algrem.  C. 
C.  A.,  160  Fed.  366;  Stirling  v.  Seat- 
tle. R.  &  S.  Ry.  Co.,  198  Fed.  913. 

15  Guaranty  Trust  Co.  v.  North- 
ern Chicago  St.  Ry.  Co.,  C.  C.  A., 
130  Fed.  801. 


§    55]  CUSTODY  OK   RECEIVERS;  107 

and  that  after  the  Federal  court  has  acquired  jurisdiction  of 
a  bill  praying  the  removal  of  the  trustee  of  a  corporate  mort- 
gage, the  appointment  of  another  and  the  appointment  of  a  re- 
ceiver of  the  mortgaged  property  pending  the  suit,  the  (State 
court  cannot  entertain  proceedings  for  the   appointment  of  a 
new  trustee  in  accordance  with  the  deed  of  trust.16     After  the 
appointment  of  a  receiver  and  until  the  termination  of  his  re- 
ceivership,   his    removal    or    discharge,     no    court,    but    that 
which     appointted     him,     except     in     cases     of     bankruptcy. 
can  interfere  with  the  property  placed  in  his  custody.17  *  The 
unauthorized   appearance   of  the   Federal   receiver   in    a    State 
court  does  not  divest  the  Federal  court  of  its  exclusive  jurisdic- 
tion in  this  respect.18     A  receiver  appointed  by  a  State  court 
cannot,  except  possibly  in  a  suit  for  the  infringement  of  a  [lat- 
ent, be  sued  without  the  permission  of  his  court.19     And  if  he 
refuses  to  sue  upon  a  claim  belonging  to  his  estate,  no  person 
.  interested  can  bring  a  suit  to  collect  the  same  without  his  join- 
der as  a  defendant  by  the  permission  of  such  court.20     Formerly 
a  Federal  receiver  could  not  be  sued  without  the  permission  of  his 
court.21.     The  Judiciary  Act  of  1887  abrogated  this  rule:22  but 
a  judgment  against  him  cannot  be  enforced  without  the  permis- 
sion of  the  Federal  court.23     It  has  been  held :  that  when  a  re- 
ceiver has  been  appointed  of  the  property  of  a  corporation,  its 
mortgagee  cannot  without  permission  of  the  court  which  made 
such  appointment  take  proceedings  to  foreclose  a  mortgage  there- 
upon because  of  a  subsequent  default;24  that  the  appointment 
by  a  State  court  of  a  receiver  of  a  corporation  pending  a  suit  in 
a  Federal  court  to  set  aside  a  chattel  mortgage  which  it  had 

16  State    Nat.    Bank    v.    Syndicate  20  Porter  v.  Sahin.  140  U.  S.  473. 

Co.,    178   Fed.   359.  37   L.  ed.  815:    infra.   §   314. 

"In   ,e  Tyler,   149  U.   S.   104.  37  21  Barton    v.    Barbour.    104    U.    S. 

L.  ed.  089;   Porter  v.  Sabin.  149  U.  12fi.   20   L.  ed.   672. 

S.  473,  37  L.  ed.  815:  Security  Trust  22  25   St.   at   L.   866,   §   3.   p.  430: 

Co.    v.    Union    Trust    Co..    134    Fed.  infra,   §   314. 

301.  28  Porter  v.  Sahin.   14!»  I".  S.  473. 

18  Memphis    Sav.    Bank     v.     Hon-  37   L.  ed.  815:    Mo.   Pac   Ry.  Co.  v. 
chens?  C.  C.  A..  115  Fed.  90,  111.  Texas    Pac    Ry.    Co..    41     Fed.    311. 

19  Porter  v.  Sabin,  140  V.  S.  473,  re-enacted    in    .Tud.    Code.    §    00.    30 
37  L.  ed.  815:    Re.jall  v.  Greenhood.  St.  at  L.  1087:   infra.  §  314. 

00   Fed.   784;    Ross   v.   Heckman.   84  24  Slade   v.   Massachusetts  Coal   & 

Fed.  6.     But  see  infra,  §  314.  Power  Co.,  188  Fed.  309. 


1<">S  OKIOIXAI.    JIKISDIC  IIOX.  [§     55 

fraudulently  obtained  was  no  bar  to  such  Federal  suit;  25  that  a 
Federal  court  may  foreclose  a  mortgage  upon  property  held  by 
a  receiver  appointed  by  a  State  court  in  a  suit  to  which  the 
mortgagee  was  not  a  party;  and  that  in  such  foreclosure  suit  the 
Federal  court  can  determine  the  claim  of  the  holders  of  receiv- 
ers' certificates  issued  under  the  order  of  the  State  court  to  a 
preference  over  the  mortgage,26  and  that  where  a  suit  was 
brought,  in  a  Federal  court,  to  foreclose  a  mortgage,  prior  to  the 
institution  of  a  suit  in  a  State  court  in  which  a  receiver  was  ap- 
pointed ;  the  Federal  court  might  decree  the  foreclosure  sale, 
notwithstanding  the  possession  of  such  receiver.27  It  has  been 
held :  that  upon  a  bill  to  set  aside  the  decree  of  a  Federal  court, 
as  fraudulent,  a  State  court  has  no  jurisdiction  to  review  the  acts 
of  receivers  appointed  by  the  Federal  court  before  such  decree.28 
Property  in  the  possession  of  a  statutory  receiver  not  appointed 
by  a  court  is  not  usually  considered  to  be  in  the  court's  custody.29 
Where  the  receiver  of  a  national  bank  appointed  by  the  Comp- 
troller of  the  Currency  refuses  to  sue  to  collect  a  cause  of  action 
due  the  bank,  one  of  the  stockholders  may  sue  in  a  State  court 
to  collect  such  assets  on  behalf  of  the  bank,  and  should  make 
the  bank  and  its  receiver  parties  defendant.30  After  the  ap- 
pointment by  the  Comptroller  of  the  receiver  of  a  bank,  the 
State  court  may  levy  a  w'.rit  of  attachment  against  the  bank  and 
the  receiver  as  garnishees.  The  State  court  then  has  jurisdic- 
tion to  enter  a  judgment  establishing  the  claim,  but  not  to  order 
the  receiver  to  make  a  payment  out  of  the  assets  of  the  bank. 
It  is  the  duty  of  the  receiver  upon  the  service  of  the  writ  to  re- 
port the  facts  to  the  Comptroller,  and  it  then  becomes  the  duty 
of  the  Comptroller  to  hold  any  funds  coming  to  his  hands 
through  the  Treasurer  as  the  proceeds  of  the  assets  subject  to 
any  rights  that  have  been  adjudicated  by  the  State  court.31  In 
a  proper  case,  an  injunction  may  be  granted  to  enjoin  such  a 

25  Sims    v.    United    Wireless    Tel.  28  Kurtz  v.   Philadelphia   &   R.   R. 
Co.,   179   Fed.  540.  Co.,  40  Atl.  988,  187  Pa.  St.  59. 

26  Metropolitan    Tr.    Co.    v.    Lake  29  l„  re  Chetwood,  165  U.  S.  443, 
(  ities    El,    Ry.    Co.,    100    Fed.    897.  41  L.  ed.  782. 

But  see   Wabash  R.  R.  Co.  v.  Adel-  30  ibid. 

bert    College.    208    U.    S.    38.    52    L.  31  Earle  v.  Conway.  178  U.  S.  456, 

ed.  379;  quoted,  supra.  §  52.  44    L.   ed.    1149:    Earle   v.    Pennsyl- 

27  Bridgeport     El.    &     Ice    Co.    v.  vania.  178  U.  S.  449,  44  L.  ed.  1146. 
Meader,  C.  C.  A..  72  Fed.  115. 


§  5ft] 


SHERIFFS   AND   MARSHALS. 


169 


receiver  from  transmitting  the  assets  to  the  Comptroller  of  the 
Currency. 

The  appointment  of  a  receiver  or  trustee  by  a  Court  of  Bank- 
ruptcy in  a  case  of  which  it  has  jurisdiction  supersedes  the  au- 
thority of  a  receiver  appointed  by  a  State  court  although  he  was 
previously  in  possession  of  the  property;  but  comity  requires 
that,  except  in  an  extraordinary  case,  the  receiver  in  bank- 
ruptcy should  apply  to  the  State  court  for  an  order  directing  the 
delivery  of  possession  to  him  before  he  institutes  other  proceed- 
ings for  the  same.33 

A  suit,  in  which  a  State  court  has  appointed  a  receiver,  may 
be  removed  to  the  Federal  court.34  Where  a  Federal  court  has 
appointed  a  receiver  in  a  case  where  a  receiver  was  previously 
appointd  by  a  State  court,  the  proper  remedy  is  an  application 
by  the  State  receiver,  to  the  Federal  court,  for  the  delivery  of 
the  possession  of  the  property  to  the  applicant.35 

§  56.  Controversies  between  State  sheriffs  and  United 
States  marshals;  and  those  arising  out  of  attachments, 
garnishee  process  and  executions.  A  court,  which,  through 
its  officers,  has  levied  upon  property  under  a  common- 
law  writ,  retains  the  exclusive  custody  of  the  same  until  it  aban- 
dons it.1     This  rule  applies  to-  a  judgment2  and   a  fund   in 


32  American  Can  Co.  v.  Williams, 
C.  C.  A.,  153  Fed.  882. 

33  In  re  Watts  and  Sachs,  1 90  U. 
S.  1,  27,  47  L.  ed.  933,  941;  infra, 
§  59. 

34  in  re  Iowa  &  Minnesota  Con- 
struction Co.,  10  Fed.  401.  Where, 
however,  all  the  property  of  a  for- 
eign corporation  had  been  placed  in 
the  hands  of  a  receiver  appointed 
by  the  State  court,  the  Federal 
court  said,  that  a  case  instituted  by 
attachment  which  had  been  removed 
thereto,  should  be  remanded.  Gold- 
berg, Bowen  &  Co.  v.  German  Ins. 
Co.,  152  Fed.  831,  834. 

35  Texas  v.  Palmer,  C.  C.  A..  22 
L.R.A.(X.S.)  31fl,  158  Fed.  705; 
Waters-P.  Oil  Co.  v.  Texas,  47  Tex. 
Civ.  App.  1G2,  103  S.  W.  836;  State 


v.  Port  Royal  &  Augusta  R.  R.  Co., 
45  S.  C.  470,  23  S.  E.  363;  People 
v.  New  York  City  Ry.  Co.,  57  Misc. 
(X.  Y.)    114. 

§  56.  1  Freeman  v.  Howe,  24 
How.  450,  16  L.  ed.  749;  Krippen- 
dorf  v.  Hyde,  110  U.  S.  270,  28  L. 
ed.  145;  Summers  v.  White,  C.  C. 
A.,  71  Fed.  106;  De  Galard  v.  Safe 
Deposit  &  Trust  Co.,  196  Fed.  981, 
a  Federal  suit  in  equity  to  obtain 
possession  of  bonds  previously  at- 
tached under  process  of  a  State 
court.  When  the  sheriff  held  prop- 
city  under  summary  proceedings  for 
a  foreclosure  under  the  Ceorgia 
statute,  it  was  held  to  be  in  the 
custody  of  a  state  court.  Tefft  v. 
Sternberg,  5  L.R.A.  221,  40  Fed.  2. 

2  Menees    v.    Matthews,    197    Fid. 


170 


ORIGINAL    JURISDICTION. 


[§   56 


court3  which  are  not  subject  to  attachment4  or  gar- 
nishee process,5  by  any  other  court  until  the  fund 
is  distributed.  The  entry  of  a  final  decree  or  order 
for  the  distribution,  is  not  a  relinquishment  of  the 
jurisdiction  of  the  court;6  and  checks  prepared  by  the  clerk 
of  the  court  for  mailing",  in  accordance  with  such  an  order,  can- 
not be  attached  or  made  subject  to  garnishee  process.7  It  lias 
been  held,  however,  that  the  State  sheriff  may  seize  property, 
while  still  in  the  possession  of  the  United  States  marshal,  after 
an  order  by  the  Federal  court  directing  its  return  to  its  own- 
er ; 8  that  where  the  marshal,  after  levy  under  a  writ  of  replevin, 
permitted  the  plaintiff's  agents  to  pack  the  goods,  to  load  them 
into  a  car,  and  to  procure  a  shipping  receipt  and  bill  of  lading 
for  the  same,  these  acts  constituted  a  delivery  to  the  plain- 
tiff and  a  State  sheriff  might  subsequently  levy  upon  them  under 
a  writ  of  attachment  issued  by  a  State  court;9  that,  where  a 
State  sheriff  had  made  no  valid  levy  upon  property  by  taking 
possession  of  the  same,  but  merely  had  it  pointed  out  to  him,  that 
did  not  prevent  a  subsequent  seizure  thereof  by  a  marshal  under 
process  from  a  United  States  court  of  admiralty.10  In  the  State 
of  Xew  York,  where  a  warrant  of  attachment,  issued  by  a  Cir- 
cuit Court  of  the  United  States,  has  been  duly  filed  in  the  of- 
fice of  the  clerk  of  the  court,  in  the  same  State,  but  in  a  differ- 
ent district  from  that  where  the  writ  was  issued;  the  State  court 
will  not  grant  an  injunction  against  the  sale  of  the  same,  al- 
though the  validity  of  the  levy  is  contested;  but  will  leave  that 
matter  lor  determination  by  the  Federal  courts.11     It  has  been 


033:  Mack  v.  Win-low.  C.  C.  A.,  59 
Fed.  316.  310.  8  C.  C.  A.  134:  and 
cases  cited. 

3  Corbitt  v.  Farmers'  Bank  of 
Delaware.   114  Fed.  002. 

4  Ibid. 

5  Mack  v.  Winslow,  C.  C.  A..  59 
Fed.  310.  319,  8  C.  C.  A..  134: 
Meneea  v.  Matthews,  107  Fed.  033: 
and  cases  cited:  Swinerton  v.  Ore- 
gon Pac.  R.  Co.  123  Cal.  417.  .50 
Pac.  40.  In  Menees  v.  Matthews. 
197  Fed.  033.  the  Federal  court  re- 
fused to  stay  an  execution  on  its 
judgment  because  the  circumstances 
tended    to    show    collusion    between 


the     garnisher     and     the     judgment 
debtors. 

6  Corbitt  v.  Farmers'  Bank  of  Del- 
aware.   114    Fed.    002. 

7  Swinerton  v.  Oregon  Pac.  R.  Co. 
123  Cal.  417,  56  Pac.  40. 

8  Daniels  v.  Lazarus,  65  Fed.  718; 
Lazarus  v.  McCarthy,  32  X.  Y. 
Supji.  S33. 

9  Animarium  Co.  v.  Bright,  82 
Fed.  107. 

10  Fountain  v.  624  Pieces  of  Tim- 
ber.  140   Fed.  381. 

HBeardslee  v.  Ingraliam,  183  N. 
Y.  411.  3  L.R.A.(N.S.)  1073.  Pre- 
vious  to   this   decision,   the    Federal 


§  56]  SHERIFFS  AND  MARSHALS.  171 

held:  that  after  the  levy  upon  land,  of  an  attachment  issued  by 
a  State  court  of  Tennessee,  the  Federal  court  cannot  appoint  a 
receiver  of  the  same  in  a  suit  subsequently  begun.12  In  the 
Southern  District  of  California,  it  was  held:  that  the  levy  of 
an  attachment  upon  real  estate  gives  to  the  court  neither  actual, 
nor  constructive,  possession  thereof,  but  merely  creates  a  lien 
upon  the  same;  that  it  cart  consequently  be  taken  into  the  pos- 
session of  a  receiver  of  a  Federal  court  subesquently  appointed  ; 
and  that  where  the  property  is  not  ample  to  meet  all  the  claims 
against  it,  the  Federal  court  will  not  permit  its  sale  under  exe- 
cution before  the  title  is  acquired  by  its  own  decree.13  Where 
a  State  statute  provides  for  successive  attachments  of  the  same 
property,  a  prior  attachment  in  a  State  court  affords  no  ground 
for  the  discharge  of  an  attachment  in  a  Federal  court.14  Other- 
wise, a  Federal  court  will  not  appoint  a  receiver  of  property 
held  by  a  sheriff  under  a  common-law  writ,  levied  before  the 
receiver's  appointment  was  prayed.15  A  writ  of  replevin,  issued 
by  a  State  court,  to  take  property  within  the  possession  of  a  mar- 
shal of  the  United  States,16  and  an  injunction  interfering  with 
the  marshal's  control  of  the  same,17  are  void,  and  a  case  of  the 
latter  character  may  be  removed  to  the  District  Court  of  the 
United  States.  The  Federal  court  may,  however,  entertain  a 
suit  against  a  State  sheriff  for  damages  caused  by  any  legal 
levy.18  The  custody  of  property  by  a  Federal  court,  under  a 
levy  by  attachment,  does  not  prevent  the  State  courts  from  sub- 
sequently deciding  the  title  to  the  same  in  an  interpleader  mi  it ; 
and  it  has  been  held,  that  the  decision  therein  will  be  binding 
upon  the  District  Court  of  the  United  States.19  The  levy,  by  a 
State  court,  upon  land  in  the  possession  of  a  person  not  a  party 

court     bad     denied     an     injunction  15  Southern    B.    &.    T.    Co.    v.    Fol- 

against    the    prosecution,    by    State  som,   C.   C.  A..   75   Fed.   020 :    Dodds 

receivers,  of  an  action  to  enjoin  the  v.  Palmer  Mountain  Tunnel  Co..  1 SS 

marshal's    sale.      Ingraham    v.    Xa-  Fed.  447. 


tional   Salt   Co.,    139   Fed.   6S4.     Of.  16  Freeman  v.  Howe.  24  How.  450, 

Hale  v.  Bugg,  82  Fed.  33.  10   L.  ed.    749;    Summer>   v.    White, 

12  Southern    Bank    &    Tr.    Co.    v.  C.  C.  A..  71    Fed.  IOC. 

Folsom,  C.  C.  A.,  lb  Fed.  929.  n  Frank  v.  Leopold  &   Felon  Co.. 

13  In    re    Hall    &    Stilson    Co..    73  169   Fed.   922. 

Fed.   ">27.  18  Porter  v.  Davidson,  62  Fed.  6215; 

14  D.   E.   Loevve   &    Co.   v.   Lawlor,  19  Montgomery    v.    McDermott,   87 
130   Fed.  633.  Fed.  374. 


172 


ORIGINAL     .ri'RISDICTIOX. 


[§   56 


to  the  suit,  will  not  prevent  him  from  suing  in  the  Federal  court, 
to  cancel  the  deed  subsequently  given  to  the  purchaser  at  the 
execution  sale;  nor  from  obtaining,  from  such  court,  an  injunc- 
tion against  the  sale.20  In  a  proper  case,  a  suit  may  be  removed 
to  a  Federal  court,  notwithstanding  the  fact  that  a  State  court 
has  previously  therein  taken  property  into  its  possession  under 
a  common-law  writ.21 

Where  there  is  a  dispute  between  the  State  sheriff  and  the 
United  States  marshal  as  to  the  right  to  posesssion,  the  proper 
remedy  is  ordinarily  a  petition  of  intervention  pro  interesse  suo 
by  the  sheriff  in  the  Federal  action.22  It  has  been  held  that  an 
original  bill  for  an  injunction  will  not  lie.23  But  an  ancillary 
bill  has  been  sustained  in  such  a  case,  and  it  was  said  that  in 
some  eases  a  summary  motion  might  be  granted  according  to  the 
circumstances.24  In  order  to  preserve  his  right  to  a  priority,  it 
seems  that  the  proper  course  is  for  the  sheriff  to  serve  upon  the 
marshal  as  garnishee  a  notice  of  his  writ.25  A  writ  of  replevin 
issued  by  a  State  court  in  such  a  case  is  void.26  Although,  it  has 
been  held,  that  proceedings  in  the  State  court,  under  an  execu- 
tion against  the  defendant's  property,  cannot  be  enjoined  by  the 
Federal  court ;  when  the  sheriff  has  levied  upon  property  not 
owned  by  the  defendant  judgment  debtor,  such  an  injunction 
was  issued.27  A  State  court  cannot  levy  an  attachment  or  gar- 
nishee process  against  a  debt  pending  an  action  in  a  Federal 
court  to  collect  the  same.28  Where  the  Federal  court  had  at- 
tached a  bank  deposit,  which  was  claimed  by  others  not  parties 


20  Provident  Life  &  Trust  Co.  v. 
Mills.   91    Fed.  435. 

21  Kern  v.  Huidekoper.  103  U.  S. 
485.  493,  492,  26  L.  ed.  354,  356, 
357. 

22  Pickett  v.  Tiler  &  S.  Co.,  40 
Fed.  313;  Gambel  v.  Pitkin,  124  U. 
S.  131,  31  L.  ed.  374.  See  Freeman 
v.  Howe,  24  How.  450.  16  L.  ed. 
749:  People's  Bank  v.  Calhoun.  102 
U.  S.  256.  26  L.  ed.  101:  Beckett 
v.  Sheriff  of  Hartford  Co..  21  Fed. 
32. 

23  Pickett  v.  Tiler  &  S.  Co..  40 
Fed.  313. 

24  Krippendorf    v.    Hyde.    110    U. 


S.  276,  287,  28  L.  ed.  145,  149,  per 
Matthews,  J.  See  Porter  v.  David- 
son, 62  Fed.  626. 

25  Gambel  v.  Pitkin,  124  U.  S. 
131,  31  L.  ed.  374. 

26  Freeman  v.  Howe,  24  How.  450, 
16  L.  ed.  749;  Summers  v.  White, 
C.  C.  A.,  71   Fed.  106. 

27  Provident  Life  &  Trust  Co.  v. 
Mills.  91   Fed.  435. 

28  Wallace  v.  McConnell.  13  Pet. 
136,  10  L.  ed.  95;  Rosenstein  v. 
Tarr.  51  Fed.  368;  Mack  v.  Wins- 
low,  59  Fed.  316;  Ohio  R.  Co.  v. 
Fisher,  C.  C.  A.,  115  Fed.  929 


§    57]  LITIGATION    IN    ANOTHER    COURT.  173 

to  the  suit,  and  an  action  against  the  bank  for  its  recovery  had 
been  instituted  by  one  of  them  in  a  State  court,  it  was  held,  that 
the  plaintiff  in  the  Federal  court  must  appear  in  the  State  court 
and  submit  his  rights  to  adjudication  there  for  the  protection 
of  the  bank;  and  that  otherwise,  his  attachment  should  be  de- 
nied.29   Banruptcy  cases  are  an  exception  to  this  rule.30 

§  57.  Effect  of  jurisdiction  of  another  court  over  same 
cause  of  action.  The  doctrine  does  not  prevent  an  action  in 
personam  between  the  same  parties  involving  the  same  issues; 
provided  that  the  property  is  not  seized  therein.1  Where  suits 
are  pending  in  a  State  and  a  Federal  court,  to  enforce  the  same 
cause  of  action,  the  usual  practice  is  to  stay  proceedings  in  the 
court  where  the  second  case  was  begun  until  the  first  is  deter- 
mined ;  not  to  dismiss  the  second  suit.2  A  plea  in  abatement 
not  in  such  a  case  was  sustained  ;  3  but  a  bill  against  an  adminis- 
trator, which  sought  to  interfere  with  assets  in  the  custody  of  a 
State  court  of  probate,  was  held  to  be  demurrable.4  Where  bills 
to  enjoin  the  enforcement  of  a  State  statute  had  been  previously 
presented  to  the  Federal  court,  upon  notice  of  an  application  to 
file  the  same,  and  restraining  orders  issued,  but  leave  to  file 
postponed  because  of  the  absence  of  one  of  the  defendant's  coun- 
sel;  it  was  held:  that  these  proceedings  took  precedence  of  sub- 
sequent suits  in  the  State  courts  to  enforce  the  statute;  and 
that  such  subsequent  suits  by  the  defendants  to  the  former  bills 
might  be  enjoined ; 5  but  where  the  Federal  court  had  enjoined 
the  enforcement  of  a  State  statute  reducing  the  price  of  gas 
pending  an  adjudication  concerning  its  validity  in  the  suit  there 
instituted,  a  State  court  held  that  it  had  power  to  enjoin  the 
gas  company  from  cutting  off  the  supply  of  gas  to  a  consumer 
for  his  refusal  to  pay  the  original  price.6    It  has  been  held  that 

29  U.  S.  v.  Neeley,   146  Fed.   763.  417;   Hughes  v.  Green,  C.  C.  A.,  84 

80  Infra,  §  59.  Fed.   833;    infra,   §   177.     See   U.   S. 

§   57.     l  Porter    v.    Davidson,     62  v.  Belknap,  73  Fed.  10. 
Fed.   626;    Rejall    v.   Greenhood.   60  3  See  infra,  §  177. 
Fed.  784:  Merritt  v.  American  S.  B.  4  Lant  v.  Mahley,   71    Fed.   7;    re- 
Co.,   79  Fed.  228;    Copeland  v.  Bru-  versed  on  another  point,  S.  c,  C.  C. 
ning,   C.   C.   A..   127    Fed.   550.     Cf.  A.,  75   Fed.  627. 
Huntington    v.    Laidley,    176    U.    S.  5  St.  Louis  &  S.  F.  R.  Co.  v.  Had- 
668.  44   L.  ed.  630.     But  see   infra,  ley,   155  Fed.  220. 
§  177.  ORiehman  v.  Consol.  Gas.  Co.,  186 

2  Zimmerman   v.  SoRelle,  80  Fed.  N.   Y.   209.     The   Court  of   Appeals 


174  OKIWKNAL    JURISDICTION,  [§    57 

the  pendency  in  a  Federal  court  of  a  suit  by  a  gas  company 
against  a  city  to  set  aside,  as  an  impairment  of  the  contract 
made  by  its  franchise,  an  ordinance  regulating  the  pressure  in 
complainant's  mains,  does  not  justify  an  injunction  against  a 
subsequent  suit  by  the  city  against  the  company  in  a  State  court 
for  mi  accounting  under  the  original  ordinance  granting  the 
franchise,  upon  the  ground  that  the  contract  rates  charged  were 
excessive  because  of  insufficient  pressure,  although  such  second 
suit  prays  an  injunction  against  the  further  collection  of  such 
rates.7  Where  a  suit  by  one  riparian  owner  against  another  to 
enjoin  interference  with  the  complainant's  use  of  water,  had 
been  first  brought  in  a  Federal  court,  a  subsequent  suit  in  a  State 
court  in  a  different  State,  when  brought  by  a  privy  of  the  de- 
fendant against  the  complainant  to  the  first  suit,  was  held  to  be 
rightfully  enjoined.8  Similar  rules-  should  usually  be  followed 
l>y  the  Federal  courts  when  the  State  courts  have  first  acquired 
jurisdiction  of  such  suits  for  injunctions;9  but  it  seems  that 
they  are  not  bound  to  do  so.10  It  was  held  that  a  decree  of  a 
State  court  in  personam,  restraining  a  water  company  from  re- 
fusing to  furnish  water  to  the  city  on  certain  conditions,  did 
not  prevent  a  subsequent  suit  in  the  Federal  court  by  a  person 
in  privity  with  the  former  defendant  to  enjoin  the  city  from 
preventing  his  removing  the  plant.11  Where  a  bill  was  filed  by 
a  Federal  court  to  remove  a  trustee,  have  another  appointed  in 
his  place,  or,  in  the  alternative,  for  the  appointment  of  a  receiv- 
er and  a  cancellation  of  certain  fraudulent  bonds  secured  by  the 
trust  deed ;  it  was  held  that  the  State  court  was  not  bound  to 
recognize  any  subsequent  order  in  proceedings  afterwards 
brought  in  the  State  court  for  the  appointment  of  a  newT  trustee, 
in  accordance  with  the  deed  of  trust.12  .V  State  court  cannot 
levy  an  attachment  or  garnishee  process,  against  a  debt,  pending 

intimated    that    the    State    court    of  9  People's  Gaslight  &   Coke  Co.  v. 

original  jurisdiction  should  stay  the  City  of  Chicago,  192  Fed.  398:  Moss 

trial   until  the  determination   in  the  &  Co.  v.  McCarthy..  191  Fed.  202. 

Federal    court    of    the    issues    there  10  People's  Gaslight  &  Coke  Co.  v. 

raised.  City  of  Chicago..  192  Fed.  398. 

7  Kansas  City   Gas  Co.  v.   Kansas  H  Laighton    v.    City    of   Carthage, 
(  ity.   19S  Fed.  .",00.  Mo..  175  Ted.  145. 

8  Rickey  Land  &  Cattle  Co.  v.  Mil-  12  State    Nat.    Bank    v.    Syndicate 
lex  &  Lux,  218  U.  S.  258,  54  L.  ed.  Co.,  ITS  Fed.  359. 

1032. 


§   58] 


CONFLICTING   CRIMINAL   PROCEEDINGS. 


175 


an  action  in  a  Federal  court  to  collect  tlie  same.13  It  has  been 
held:  that  the  pendency  of  a  suit  in  a  State  court  in  another  dis- 
trict, in  which  a  trustee  has  been  enjoined  from  beginning  a 
foreclosure  suit,  does  not  affect  the  jurisdiction  of  a  Federal 
court  to  foreclose  the  mortgage  on  the  property  in  both  States, 
at  the  suit  of  a  majority  of  the  bondholders.14  It  has  been  held  : 
that  the  pendency  of  a  suit  in  the  Federal  court  to  foreclose  a 
lien,  in  which  no  receiver  is  appointed,  does  not  affect  the  juris- 
diction of  a  State  court  to  entertain  a  suit  for  the  foreclosure 
of  a  mortgage  on  the  same  property,  when  the  mortgagee  was 
not  a  party  to  the  suit  in  the  Federal  court;  and  that  the  decree 
in  the  Federal  court  does  not  bind  the  mortgagee,  nor  affect 
the  rights  of  a  purchaser  at  the  foreclosure  sale.15 

§  58.  .Effect  of  the  custody,  by  another  court,  of  the 
person  of  an  accused  in  criminal  proceedings,  or  otherwise. 
This  doctrine  applies,  to  a  limited  extent,  to  the  custody  of  a 
person  in  a  criminal  case.1  Thus,  the  Federal  courts  ordinarily 
refuse  to  discharge  by  habeas  corpus  before  his  trial,  and  even 
in  some  cases,  before  he  has  exhausted  his  remedy  by  writ  or 
appeal,  after  conviction,  a  prisoner  held  under  indictment  by 
a  State  court.2  So,  where  the  marshal  had  seized  under  a  charge 
of  a  crime  against  the  United  States  a  prisoner  held  by  the  sher- 
iff under  a  charge  of  a  violation  of  the  State  criminal  law,  the 
Federal  court  upon  a  plea  in  abatement  sustained  the  indict- 
ment found  by  its  own  grand  jury,  but  ordered  that  the  accused 
be  returned  to  the  State  authorities.3  CYmverselv,  a  State  court 
has  no  power  to  release  by  habeak  corpus  a  prisoner  held  under 
the  process  of  a  court  of  the  United  States.4     The  acts  of  Con 


13  Wallace  v.  McConnell,  13  Pet. 
136,  10  L.  ed.  95:  Rosenstein  v. 
Tarr,  51  Fed.  36g;  Mack  v.  Wins- 
low.  59  Fed.  31 G. 

14  Woodbury  v.  Alleghany  &  K. 
R.  Co..  72  Fed.   371. 

15  National  Foundry  &  Pipe 
Works  v.  Oconto  City  Water  Supply 
Co.,  C.  C.  A..  113  Fed.  793.  See 
National  Foundry  &  Pipe  Works  v. 
Oconto  Water  Supply  Co..  183  U.  S. 
216,  46  L.  ed.  157. 

§  58.  lHarkfader  v.  Wadley, 
372  U.   S.   148.   164.  43   L.  ed.   399, 


4(14.  per  Sliiras,  J.,  citing  Ex  parti' 
Crouch.  112  U.  S.  178,  28  L.  ed.  090. 
2Fx  parte  Royall.  117  U.  S.  241. 
254.  2!)  L.  ed.  86S.  872:  £§  461.  166, 
infra. 

3  (  .  S.  v.  Wells,  11  Am.  Law  Reg. 
(N.  S.)  424;  s.  C,  Fed.  Cases  No. 
16,665. 

4  Ahleman  v.  Booth.  21  How.  506, 
16  L.  ed.  169.  See  Tarhle's  Case, 
13  Wail.  397.  20  L.  ed.  597:  Robb 
v.  Connolly,  111  U.  S.  624.  28  L. 
ed.  542.  In  the  Matter  of  Spangler, 
11  Mich.  298. 


176 


ORIGJXA  I,    JURISDICTION. 


[§   58 


eress,  however,  authorize  in  certain  eases  the  removal  of  crim- 
inal  proceedings  from  a  State  to  a  Federal  court.5  And  where 
an  officer  of  the  United  States  is  arrested  by  State  process,  be- 
cause of  an  act  done  in  pursuance  of  his  official  duty,  the  Fed- 
eral courts  will  usually  interfere,  by  habeas  corpus,  to  protect 
him.6  It  has  been  held  that  an  application  for  the  removal  of 
a  criminal  from  one  Federal  district  to  another  will  be  denied 
if  the  accused  was  in  the  custody  of  the  State  court  before  the 

V 

Federal  court  obtained  jurisdiction.7  The  same  rule  applies 
when  lie  is.  at  that  time,  in  the  custody  of  a  court  of  the  United 
States,  in  the  district  from  which  it  is  sought  to  remove  him;8 
unless  such  court  relinquishes  its  jurisdictiqn,  which  it  may  do 
with  the  consent  of  the  government ;  and  if  it  does  so,  the  ac- 
cused will  be  removed.9  Where  the  first  court  declines  to  relin- 
quish its  jurisdiction,  it  has  been  held  that  the  practice  is  for  the 
marshal  to  hold,  but  not  to  execute,  the  second  warrant,  until 
it  is  determined  whether  the  accused  shall  be  held  under  that 
first  issued.10  It  has  been  said:  "that  the  sovereignty,  where  ju- 
risdiction first  attaches,  may  yield  it;  and  that  the  implied  cus- 
tody of  a  defendant  by  his  sureties  cannot  prevent.  They  may, 
however,  claim  exemption  from  further  liability  to  produce 
him."  n  Where  a  proceeding'  to  determine  the  sanity  of  an  al- 
leged lunatic  had  been  brought  in  a  State  court,  between  citizens 
of  different  States,  the  Federal  court  refused,  pending  the  de- 
termination thereof,  to  review  the  right  of  his  custody  upon  a 
writ  of  habeas  corpus.12  "Where  one  commences  a  criminal 
proceeding,  who  is  already  a  party  to  a  suit  then  pending  in 
equity,  if  the  criminal  proceedings  are  brought  to  enforce  the 


5U.  S.  R.  S..  §§  643,  643;  IS  St. 
at  L..  p.  401 :  Tennessee  v.  Davis. 
100  U.  S.  257.  25  L.  ed.  64S.  See 
§§  537.  550.  551.   infra. 

6  in  re  Neagle,  135  U.  S.  1,  34  L. 
ed.  ~^~);  Oliio  v.  Thomas,  173  U.  S. 
276,  285.  43  L.  ed.  699.  702:  Boske 
v.  Comingore,  177  X*.  S.  459,  44  L. 
ed.  84ii:  Anderson  v.  Elliott.  C.  C. 
A.,  KM  Fed.  609;  In  re  Turner.  119 
Fed.  231:  West  Virginia  v.  Laing, 
C.  C.  A..  133  Fed.  887.  See  §  461, 
infra. 

T  Re  James.  18  Fed.  853:  U.  S.  v. 


Corrie.  23  L.  Rep.  145:  U.  S.  v. 
Burr.  2  Burr's  Trial.  455.  See  Re 
Johnson.  107  U.  S.  120.  42  L.  ed, 
103. 

8  Re  Johnson.  167  U.  S.  120,  124. 
42  L.  ed.  103.  104, 

9  Beavers  v.  Haubert,  198  U.  S. 
77.  49  L.  ed.  950:  Re  Beavers.  ]25 
Fed.  988:  Peckham  v.'Henkel,  160 
Fed.  627. 

W  Re  Beavers.   125  Fed.  9S8. 
n  Beavers   v.    Haubert.    198   U.   S. 
77.  85.  49  L.  ed.  950,  953. 

12  Hoadlev  v.  Chase.  126  Fed.  818. 


§  59]  FEDEKAT.  RTOHT  TO  CUSTODY  WHEN  PARAMOUNT.    177 

same  rights  that  are  in  issue  before  that  court,  the  latter  may 
enjoin  such  criminal  proceedings."  13  When  an  indictment  or 
proceeding  is  brought  to  enforce  an  alleged  unconstitutional 
statute,  which  is  the  subject  matter  of  inquiry  in  a  suit  already 
pending  in  a  Federal  court,  the  latter,  having  first  obtained  ju- 
risdiction over  the  subject  matter,  has  the  right  to  hold  and 
maintain  such  jurisdiction  to  the  exclusion  of  all  other  courts, 
until  its  duty  is  fully  performed  ;  but  it  cauuot  interfere  where 
the  proceedings  were  pending  in  the  State  court  before  the  ju- 
risdiction of  the  Federal  court  was  sought  ex  parte.1* 

§  59.  Effect  of  the  custody  of  property  by  the  State 
court,  where  the  Federal  courts  exercise  jurisdiction  under 
the  Constitution  and  laws  of  the  United  States.  The  rule 
does  not  apply  where  the  Federal  courts  exercise  superior  juris- 
diction, for  the  purpose  of  enforcing  the  supremacy  of  the 
Constitution  and  laws  of  the  United  States.1  The  institution 
of  a  proceeding  in  bankrutpcy  gives  jurisdiction  to  the  District 
Court  of  the  United  States  in  certain  cases  to  seize  property 
taken  into  the  custody  of  a  State  court,  within  four  months 
before  the  filing  of  the  petition.2  The  possession  of  the  prop- 
erty of  a  corporation  by  receivers  appointed  by  a  State  court 
does  not  affect  the  jurisdiction  of  a  District  Court  of  the  United 
States  to  adjudicate  that  corporation  a  bankrupt;  nor  it  has 
been  held  deprive  the  directors  of  any  power  which  they  may 
possess  to  make  a  written  admission  of  its  inability 
to  pay  its  debts  and  its  willingness  to  be  adjudicated 
a  bankrupt,  so  as  to  support  involuntary  proceedings  in  bank- 
ruptcy.3    After  an  adjudication  of  bankruptcy,  the  appoint- 

13  Ex  parte  Young,  209  U.  S.  123,       Tune.  115  Fed.  900;  Re  English.  C. 
162,  52  L.  ed.  714,  730.  C.  A.,   127  Fed.  940;   In  re  Moench 

14  Ibid.  &  Sons'  Co.,  C.  C.  A..  130  Fed.  685. 
§  59.     lTefTt      v.      Sternberg.      5       See   §§   609,   635.   infra. 

L.R.A.  221,  40  Fed.  2,  G,  per  Speer,  3  In  re  Moench  &  Sons'  Co.,  C.  C. 

J.;   citing  Covell  v.  Hyman,  111  U.  A-   130  Fed.  085;    Re  Electric  Sup- 

S.  176.  28  L.  ed.  390.  P'y   ^o.,    175    Fed.    612;      Otherwise 

2  30  St.  at  L.,  p.  564;   In  re  Ma-  whon    enjoined,      lie    Hudson    River 

con   S.   D.   &   L.   Co.,    112    Fed.   323,  E1-  R-  t'o..  173  Fed.  934.     See  infra 

333;    Carling    v.    Seymour    Lumber  §§  625>  U2U' 
Co.,  C.   C.    A..   113    Fed.  483;    In   re 
Fed.  1'rac.  Vol.  I.— 12. 


178 


ORIGINAL    JURISDICTION'. 


[§  59 


ment  of  a  receiver4  or  trustee5  by  the  bankruptcy  court  super- 
sedes the  authority  of  a  receiver  previously  appointed  by  a 
State  court  because  of  insolvency,  although  the  latter  is  in 
possession  of  the  property,  but  comity  requires  that,  except 
in  an  extraordinary  case,  the  officer  of  the  bankruptcy  court 
should  apply  to  the  State  court  for  an  order  for  the  delivery  or 
possession  to  him  before  he  institutes  another  proceeding  for 
the  same.6  It  has  been  held  that,  before  adjudication  at  least, 
the  Federal  court  should  not  appoint  a  receiver  when  a  receiver 
appointed  by  a  State  court  is  already  in  possession ; 7  and  in 
the  county  of  New  York  it  is  the  practice  of  the  Supreme  Court, 
in  such  a  case,  to  instruct  its  receiver  to  apply  to  the  Federal 
court  to  set  aside  the  appointment  there  made  and  to  appeal 
if  such  application  be  denied.8  The  filing  of  a  suit  in  equity 
in  the  District  Court  of  the  United  States  by  a  trustee  in  bank- 
ruptcy, to  set  aside  as  fraudulent  a  conveyance  of  mortgaged 
premises  by  the  bankrupt  and  an  interlocutory  judgment  in  his 
favor  therein,  was  held  to  be  no  ground  for  vacating  an  order 
appointing  a  receiver  of  the  mortgaged  premises  in  a  suit  of 
foreclosure  subsequently  brought  in  the  State  court.9  A  Dis- 
trict Court  of  the  United  States  will  enjoin  a  suit  in  a  State 
court,  begun  subsequent  to  an  adjudication  of  bankruptcy,  to 
take  possession  of  property  held  by  the  bankrupt  or  his  trustee.10 
The  rule  as  to  proceedings  in  admiralty  is  not  so  clear.  It  has 
been  held:  that  the  appointment  of  a  State  receiver,  who  had 
not  filed  the  statutory  bond,  nor  taken  possession,  was  no  bar 
to  the  seizure  of  a  boat  by  the  marshal  under  process  in  ad- 


4  7?e  J.  W.  Zeigler  Co.,  189  Fed. 
259.  In  that  case,  the  court  refused 
to  punish  the  State  receiver  for  re- 
fusal to  deliver  possession  of  the 
property  to  the  receiver  in  bank- 
ruptcy when  he  acted  under  the  ad- 
vice of  counsel.  See  In  re  Watts 
and  Sachs,  190  U.  S.  1,  27,  47  L.  ed. 
933,  941. 

5  Re  Hecox,  C.  C.  A.,  1G4  Fed.  823. 

6  Re  Watts  and  Sachs,  190  U.  S. 
1,  27;  Re  Ilecox,  C.  C.  A.,  104  Fed. 
823. 

7  Re   Spalding,   C.    C.   A.,    Second 


Ct.,  May  1905,  reported  in  Re  Oak- 
land Lumber  Co.,  C.  C.  A.,  174  Fed. 
G34,  G37;  Re  Desrochers,  183  Fed. 
991  ;  Re  Standard  Cordage  Co.,  184 
Fed.  150.  So  held  when  an  assignee 
in  insolvency  was  in  possession,  Re 
Rosenthal,  144  Fed.  548,  549. 

8  People  v.  P.  V.  Rovnianek  &  Co., 
N.  Y.  L.  J.  Jan'y.  12,  1911. 

9  Mutual  Life  Ins.  Co.  v.  Fleisch- 
man,  149  App.  Div.   (N.  Y.)   23. 

10  White    v.    Schloerb,    178    U.    S. 
542,  44  L.  ed.  1183. 


§    60]  DIFFERENT  FEDERAL  COURTS.  179 

miralty.11  That  a  vessel  can  be  seized  by  the  marshal  under 
a  libel  in  admiralty,  to  enforce  a  lien  that  arose  for  repairs  be- 
fore the  appointment  of  the  receiver,  when  the  seizure  is  made 
after  such  appointment;  but  before  the  receiver  has  taken  actual 
possession  or  notified  the  master,  or  any  person  on  board  the 
vessel,  that  he  has  been  appointed ; 12  but  that  a  tug,  attached 
under  process  of  a  State  court  and  delivered  by  the  sheriff  to 
a  receiver  appointed  by  said  court,  cannot  be  taken  from  him 
by  a  marshal  of  the  United  States  in  proceedings  in  admiralty 
upon  claims  that  arose  against  the  tug  before  his  appointment.13 
That,  upon  a  similar  claim,  a  marshal  cannot  take  property 
from  the  hands  of  an  assignee  under  the  insolvency  law  of 
Minnesota.14  That  a  vessel  in  the  possession  of  receivers,  ap- 
pointed by  a  Circuit  Court  of  the  United  States,  is  not,  with- 
out the  permission  of  that  court,  subject  to  seizure  on  process 
in  admiralty  from  the  District  Court  for  the  same  district,  in 
a  suit  in  rem  to  enforce  a  judgment  which  arose  prior  to  the 
receivership.15  And  that  a  vessel  operated  by  a  State  receiver 
can  be  seized  in  another  State  by  the  District  Court  of  the 
United  States,  upon  a  libel  in  admiralty  to  enforce  a  claim 
that  arose  during  his  management  of  the  vessel.16 

§  60.  Property  in  the  custody  of  another  Federal  court. 
The  different  District  Courts  of  the  United  States,  acting  upon 
the  principle  of  judicial  comity,  usually,  when  property  has 
been  taken  into  the  custody  of  another  District  Court,  or  when 
proceedings  have  been  instituted  therein  for  such  a  purpose,  re- 
fuse to  interfere  with  the  same.  Thus,  where  proceedings  to 
cancel  a  mortgage  had  been  instituted  in  one  district,  the  Fed- 
eral Court  of  another  district  stayed  proceedings  upon  a  bill 
therein  filed  for  the  foreclosure  of  such  mortgage  until  the  de- 
termination of  the  first  suit.1  So,  where  a  receiver  has  been 
appointed  to  take  possession  of  certain  property,  such  as  a  rail- 
road, which  is  situated  in  several  districts,  it  is  the  usual  prac- 

llMoran    v.    Sturges,    154    U.    S.  16  Tlie    Willamette    Valley,    C.    C. 

256,  38  L.  o«l.  981.  A.,  06  Fed.  565;   s.  c,  Chandler  v. 

12  The  Lotta.  65  Fed.  310.  The  Willamette  Valley,  63  Fed.  130. 

13  The  E.  L.  Cain.  45  Fed.  367.  §  60.     1  Hurd  v.  Moiles,   28   Fed. 

14  The    J.    G.    Chapman,    62    Fed.  897. 
939. 

•  15  The  Jonas  H.  French,  119  Fed, 
462. 


180 


ORIGINAL    JURISDICTION. 


[§    60 


tice  for  the  District  Courts  in  the  other  districts  to  appoint  the 
same  person  as  ancillary  receiver  of  the  property  within  their 
territorial  jurisdiction;8  to  treat  the  court  in  which  the  pro- 
ceedings were  first  instituted  as  that  of  primary  jurisdiction 
and  of  principal  decree,  and  to  make  the  administration  of 
the  property  in  the  latter  court  ancillary  thereto.3  Accord- 
ingly, the  court  of  ancillary  jurisdiction  refused  to  direct  the 
payment  of  a  judgment  against  the  corporation  recovered  in  a 
State  court  within  its  district  where  an  account  of  the  funds 
in  its  receiver's  hands  was  necessary,  and  referred  the  petitioner 
to  the  court  of  primary  jurisdiction  for  relief.4  This  rule 
however,  is  largely  within  the  discretion  of  each  District  Court, 
and  cases  have  arisen  in  which  each  court  has  administered  the 
assets  within  its  jurisdiction  independently  of  the  administra- 
tion of  the  court  of  primary  jurisdiction.5 

Where  the  trustees  of  a  second  mortgage  on  a  railroad  had 
begun  a  foreclosure  suit,  making  the  trustee  of  the  first  mort- 
gage a  party,  and  receivers  had  heen  appointed  and  taken  pos- 
session, it  was  held  that  the  first  mortgagee  should  not  be  al- 
lowed to  bring  an  independent  foreclosure  suit,  but  must  seek 
the  relief  he  wished  in  the  suit  instituted  by  the  second  mort- 
gagee.6 Where  the  evidence,  affecting  the  decision  of  an  appli- 
cation made  to  one  of  the  courts  of  ancillary  jurisdiction,  was 
within  the  custody  of  another  court  of  ancillary  jurisdiction  ;  the 
former  denied  the  motion,  without  prejudice  to  an  application 
to  the  latter.7  Where  a  controversy  arose  out  of  transactions 
in  the  ancillary  jurisdiction,  it  was  held:  that  that  court  should 
determine  the  same.8  'That  where  a  Federal  Court  in  another 


2  Williams  r.  Hintermeister,  26 
Fed.  880;  Parsons  v.  Charter  Oak 
L.  I.  Co.,  31  Fed.  305;   infra,  §  304. 

3  Farmers'  L.  &  T.  Co.  v.  North- 
ern Pac.  Ry.  Co.,  72  Fed.  20,  30,  31; 
Clyde  v.  Richmond  &  D.  R.  Co.,  65 
Fed.  33(5. 

4  Central  T.  Co.  v.  East  Tenn., 
Va.  &  G.  R.  Co..  30  Fed.  805. 

5  The  Wabash  Cases:  Atkins  v. 
Wabash,  St.  L.  &  P.  Ry.  Co..  20 
Fed.  101  :  Central  T.  Co.  v.  Wabash, 
St.  L.  &  P.  Ry.  Co.,  20  Fed.  618; 
U.   S.  T.   Co.   v.   Wabash,   St.   L.   & 


P.  Ry.  Co..  42  Fed.  343.  See  also 
■Mercantile  T.  Co.  v.  Kanawha  &  O. 
Ry.  Co..  30  Fed.  337;  Central  T.  Co. 
v.  Fast  Tenn..  Va.  &  G.  Ry.  Co..  GO 
Fed.  658;  X.  V.  Security  &  T.  Co. 
v.  Equitable  Mtg.  Co..  71  Fed.  556; 
Reynolds  v.  Stockton.  140  U.  S.  254, 
272,  35  L.  ed.  464:   infra,  §  304. 

6  Mercantile  Tr.  Co.  v.  Atlantic  & 
P.  R.  Co..  70  Fed.  518. 

7  Bowker  v.  Haight  &  Freese  Co., 
140  Fed.   797. 

8  Jones   v.    Central    Trust    Co.,    C. 
C.  A.,  73  Fed.  568. 


§    61]  RESIDENCE.  181 

district,  in  a  suit  between  other  parties,  had  refused  an  in- 
junction against  a  railroad  merger  and  consolidation,  the  motion, 
for  substantially  the  same  relief,  should  be  denied.9  It  was 
held:  that  a  Circuit  Court  of  the  United  States  could,  upon  a 
creditor's  bill,  appoint  a  receiver  of  the  assets  of  a  foreign  cor- 
poration, when  a  petition  in  bankruptcy  was  previously  pending 
in  the  district  of  the  defendant's  domicile,  which  was  subse- 
quently followed  by  an  adjudication;10  that  a  District  Court  of 
the  United  States  could  not,  by  process  in  admiralty,  without 
the  consent  nf  the  Circuit  Court  of  the  United  States  in  the 
same  district,  take  property  fro  mthe  possession  of  a  receiver  ap- 
pointed by  the  latter  to  apply  to  a  claim  that  arose  before  the 
appointment  of  such  receiver ; n  that  a  Federal  Court  which 
had,  through  its  receiver,  sold  vessels  subject  to  maritime  liens 
and  liens  under  the  State  laws  for  supplies,  had  no  jurisdiction 
to  determine  and  enforce  the  same,  but  that  those  matters  be- 
longed exclusively  to  the  District  Court  in  admiralty;12  and 
that  a  District  Court  in  admiralty  might,  in  distributing  the 
proceeds  of  a  sale,  grant  a  priority  to  the  claims  of  a  receiver 
in  bankruptcy  who  is  not  a  party  to  the  admiralty  proceed- 
ings. 

§  61.  Limitations  upon  jurisdiction  by  residence.  The 
Judicial  Code  provides:  "§  51.  Except  as  provided  in  the 
five  succeeding  sections,  no  person  shall  be  arrested  in  one  dis- 
trict for  trial  in  another,  in  any  civil  action  before  a  district 
court;  and,  except  as  provided  in  the  six  succeeding  sections, 
no  civil  suit  shall  be  brought  in  any  district  court  against  any 
person  by  any  original  process  or  proceeding  in  any  other  dis- 
trict than  that  whereof  he  is  an  inhabitant-  but  where  the 
jurisdiction  is  founded  only  on  the  fact  that  the  action  is  be- 
tween citizens  of  different  States/suit  shall  be  brought  only 
in  the  district  of  the  residence  of  either  the  plaintiff  or  the 
defendant. 

"§   52.   When  a  State  contains  more  than  one  district,  every 

9Dady  v.   Georgia  &  A.  Ry„   112  12  Hudson     v.    New    York    &     A. 

Fed.  838.  840.  Transp.  Co.,  175  Fed.  519. 

10  Cruchet  v.  Red  Rover  Min.  Co.,  13  Hudson    Oil    &    Supply    Co.    v. 

15.-)   Fed.  486.  Booraem.  216  tT.  S.  604;   S.  C;  The 

HT'ne  Jonejs  H.  French,  119  Fed.  Falcon,  C.  C.  A.,  177  Fed.  916. 
462. 


1  Si?  ORIGINAL    JURISDICTION.  [§    61 

suit  imt  of  a  local  nature,  in  the  district  court  thereof,  against 
a  single  defendant,  inhabitant  of  such  State,  must  be  brought 
in  the  district  where  he  resides;  but  if  there  are  two  or  more 
defendants,  residing  in  different  districts  of  the  State,  it  may 
be  brought  in  either  district,  and  a  duplicate  writ  may  be 
issued  against  the  defendants,  directed  to  the  marhsal  of  any 
other  district,  in  which  any  defendant  resides.  The  clerk  issu- 
ing the  duplicate  Writ  shall  indorse  thereon  that  it  is  a  true 
copy  of  a  writ  sued  out  of  the  court  of  the  proper  district;  and 
such  original  and  duplicate  writs,  when  executed  and  returned 
into  the  office  from  which  they  issue,  shall  constitute  and  be 
proceeded  on  as  one  suit;  and  upon  any  judgment  or  decree 
rendered  therein,  execution  may  be  issued,  directed  to  the  mar- 
shal of  any  district  in  the  same  State."  * 

"§  53.  When  a  district  contains  more  than  one  division, 
every  suit  not  of  a  local  nature  against  a  single  defendant  must 
be  brought  in  the  division  where  he  resides;  but  if  there  are 
two  or  more  defendants  residing  in  different  divisions  of  the 
district  it  may  be  brought  in  either  division.  All  mesne  and 
final  process  subject  to  the  provisions  of  this  section  may  be 
served  and  executed  in  any  or  all  of  the  divisions  of  the  district, 
or  if  the  State  contains  more  than  one  district,  then  in  any  of 
such  districts,  as  provided  in  the  preceding  section.2  All  prose- 
cutions for  crimes  or  offenses  shall  he  had  within  the  division 
of  such  districts  where  the  same  were  committed,  unless  the 
court,  or  the  judge  thereof,  upon  the  application  of  the  de- 
fendant, shall  order  the  cause  to  be  transferred  for  prosecution 
to  another  division  of  the  district.  When  a  transfer  is  ordered 
by  the  court  or  judge,  all  the  papers  in  the  case,  or  certified 
copies  thereof,  shall  be  transmitted  by  the  clerk,  under  the 
^'i\\  of  the  court,  to  the  division  to  which  the  cause  is  so  ordered 
transferred  :  and  thereupon  the  cause  shall  be  proceeded  with 
in  said  division  in  the  same  manner  as  if  the  offense  had  been 
committee!  therein.  In  all  cases  of  the  removal  of  suits  from 
the  courts  of  a  State  to  the  District  court  of  the  United  States 
such  removal  shall  be  to  the  United  States  District  court  in  the 

§  61.     136  St.  at  L.  1087.  may  be  served  there  in  another  dis- 

2  Ft  has  been   hrhJ  that  where  de-  trict  from   that   in  which   the  court 

fendanta  reside  in  different  districts  sits.     Babbitt   v.   Burgess,  2  Dillon, 

of    the    same    State,    an    injunction  169,  Fed.  Cas.  No.  693. 


§    61]  RESIDENCE.  183 

division  in  which  the  county  is  situated  from  which  the  removal 
is  made;  and  the  time  within  which  the  removal  shall  be  per- 
fected, in  so  far  as  it  refers  to  or  is  regulated  by  the  terms  of 
United  States  courts,  shall  be  deemed  to  refer  to  the  terms  of 
the  United  States  District  Court  in  such  division. 

"§  54.  In  suits  of  a  local  nature,  where  the  defendant  re- 
sides in  a  different  district,  in  the  same  State,  from  that  in 
which  the  suit  is  brought,  the  plaintiff  may  have  original  and 
final  process  against  him,  directed  to  the  marshal  of  the  dis- 
trict in  which  he  resides. 

"§  55.  Any  suit  of  a  local  nature,  at  law  or  in  equity,  where 
the  land  or  other  subject-matter  of  a  fixed  character  lies  partly 
in  one  district  and  partly  in  another,  within  the  same  State, 
may  be  brought  in  the  district  court  of  either  district ;  and  the 
court  in  which  it  is  brought  shall  have  jurisdiction  to  hear  and 
decide  it,  and  to  cause  mesne  or -final  process  to  be  issued  and 
executed,  as  fully  as  if  the  said  subject-matter  were  wholly 
within  the  district  for  which  such  court  is  constituted.3  "  A  suit 
by  a  creditor  of  a  railroad  company  to  have  its  property,  sit- 
uated in  different  Federal  districts  of  the  same  State,  adminis- 
tered for  the  benefit  of  all  creditors,  is  one  of  a  local  nature, 
which  may  be  brought  in  either  of  such  districts.4  It  has  been 
said  that  the  appointment  of  a  receiver  therein  is  an  equitable 
attachment  of  all  property  of  the  defendant  within  the  State.5 
Section  fifty-six  provides  that  where  a  receiver  is  appointed 
over  land  or  other  property  of  a  fixed  character,  which  lies 
within  the  district  for  which  such  court  is  constituted."  3  A  suit 
issue  and  be  executed  in  any  district  of  the  circuit,  in  the  same 
manner  and  to  the  same  extent  as  if  the  property  were  wholly 
within  the  same  district.6  The  whole  section  is  quoted  and 
discussed  in  the  chapter  on  "Receivers."7  The  Judicial  Code 
further  provides-:  "§  48.  In  suits  brought  for  the  infringe- 
ment of  letters  patent  the  District  courts  of  the  United  States 
shall  have  jurisdiction,  in  law  or  in  equity,  in  the  district  of 
which  the  defendant  is  an  inhabitant,  or  in  any  district  in  which 
the  defendant,  whether  a  person,  partnership,  or  corporation, 
shall  have  committed  acts  of  infringement  and  have  a  regular 

3.30  St.  at  L.  1087.  5  Ibid. 

4  Horn  v.  Pere  Marquette  R.  Co.,  6  30  St.  at  L.  1087. 

151  Fed.  Cas.  626,  627.  1 1nfra,  §   306. 


184  ORIGINAL    JURISDICTION.  [§    61 

and  established  place  of  business.  If  such  suit  is  brought  in 
a  district  of  which  the  defendant  is  not  an  inhabitant,  but  in 
which  such  defendant  has  a  regular  and  established  place  of 
business,  service  of  process,  summons,  or  subpoena  upon  the 
defendant  may  be  made  by  service  upon  the  agent  or  agents 
engaged  in  conducting  such  business  in  the  district  in  which 
suit  is  brought."  8  This  section  is  discussed  in  the  succeeding 
section.  The  Copyright  Act  of  .March  4.  1000,  provides: 
''That  civil  actions,  suits,  or  proceedings  arising  under  this  Act 
may  be  instituted  in  the  district  of  which  the  defendant  or  his 
agent  is  an  inhabitant,  or  in  which  he  may  be  found.9 
"Every  applicant  for  registration  of  a  trademark  or 
for  renewal  of  registration  of  a  trademark,  who  is  not  domi- 
ciled within  the  United  States,  shall,  before  the  issuance  of  the 
certificate  of  registration,  as  hereinafter  provided  for,  designate, 
by  a  notice  in  writing,  filed  in  the  Patent  Office,  some  person 
residing  within  the  United  States  on  whom  process  or  notice 
of  proceedings  affecting  the  right  of  ownership  of  the  trade-mark 
of  which  such  applicant  may  claim  to  be  the  owner,  brought  un- 
der the  provisions  of  this  Act  or  under  other  laws  of  the  United 
States,  may  be  served,  with  the  same  force  and  effect  as  if  served 
upon  the  applicant  or  registrant  in  person.  For  the  purposes 
of  this  Act  it  shall  be  deemed  sufficient  to  serve  such  notice  upon 
such  applicant,  registrant  or  representative  by  leaving  a  copy 
of  such  process  or  notice  addressed  to  him  at  the  last  address  of 
which  the  Commissioner  of  Patents  has  been  notified."  10  In 
proceedings  in  equity  to  restrain  violations  of  the  provisions  of 
laws  of  the  United  States  to  prevent  the  unlawful  inclosure  of 
public  lands,  "it  shall  be  sufficient  to  give  the  court  jurisdiction 
if  service  of  original  process  be  had  in  any  civil  proceeding  on 
any  agent  or  employee  having  charge  or  control  of  the  in- 
closure." u 

"§  57.  When  in  any  suit  commenced  in  any  District  Court 
of  the  United  States  to  enforce  any  legal  or  equitable  lien  upon 
or  claim  to,  or  to  remove  any  incumbrance  or  lien  or  cloud  upon 
the  title  to  real  or  personal  property  within  the  district  where 

8  30  St.  at  L.  1087.  408,    Comp.    St.    Supp.    667,    Pierce 

9  35   St.   at  L.   1075,   §    35,   Pierce       Fed.  Code,  §  8809. 

Fed.  Code    (Supp.)    §   1589.  ".Tun.   Code,   §   24,   subd.   21,   36 

10  Act   of    February   20.    100").   33       St.  at  L.  1087. 
St.  at  L.  724.  §  3,  10  Fed.  St.  Ann. 


§    61]  RESIDENCE.  185 

such  suit  is  brought,  one  or  more  of  the  defendants  therein  shall 
not  be  an  inhabitant  of  or  found  within  the  said  district,  or 
shall  not  voluntarily  appear  thereto,  it  shall  be  lawful  for  the 
court  to  make  an  order  directing  such  absent  defendant  or  de- 
fendants to  appear,  plead,  answer,  or  demur  by  a  day  certain 
to  be  designated,  which  order  shall  be  served  on  such  absent 
defendant  or  defendants,  if  practicable,  wherever  found,  and 
also  upon  the  person  or  persons  in  possession  or  charge  of  said- 
property,  if  any  there  be,  or  where  such  personal  service  upon 
such  absent  defendant  or  defendants  is  not  practicable,  such 
order  shall  be  published  in  such  manner  as  the  court  may  direct, 
not  less  than  once  a  week  for  six  consecutive  weeks.  In  case 
such  absent'  defendant  shall  not  appear,  plead,  answer,  or  de- 
mur within  the  time  so  limited,  or  within  some  further  time, 
to  be  allowed  by  the  court, -in  its  discretion,  and  upon  proof  of 
the  service  or  publication  of  said  order  and  of  the  performance 
of  the  directions  contained  in  the  same,  it  shall  be  lawful  for 
the  court  to  entertain  jurisdiction,  and  proceed  to  the  hearing 
and  adjudication  of  such  suit  in  the  same  manner  as  if  such 
absent  defendant  had  been  served  with  process  within  the  said 
district;  but  said  adjudication  shall,  as  regards  said  absent  de- 
fendant or  defendants  without  appearance,  affect  only  the  prop- 
erty which  shall  have  been  the  subject  of  the  suit  and  under  the 
jurisdiction  of  the  court  therein,  within  such  district;  and  when 
a  part  of  the  said  real  or  personal  property  against  which  such 
proceedings  shall  be  taken  shall  be  within  another  district,  but 
within  the  same  State,  such  suit  may  be  brought  in  either  dis- 
trict in  said  State:  Provided,  however,  That  any  defendant  or 
defendants  not  actually  personally  notified  as  above  provided 
may  at  any  time  within  one  year  after  final  judgment  in  any 
suit  mentioned  in  this  section,  enter  his  appearance  in  said 
suit  in  said  district  court,  and  thereupon  the  said  court  shall 
make  an  order  setting  aside  the  judgment  therein  and  per- 
mitting said  defendant  or  defendants  to  plead  therein  on  pay- 
ment by  him  or  them  of  such  costs  as  the  court  shall  deem  just; 
and  thereupon  said  suit  shall  be  proceeded  with  to  final  judg- 
ment according  to  law."  12 

"§  40.  The  trial  of  offenses  punishable  with  death  shall  be 
had  in  the  county  where  the  offense  was  committed,  where  that 
can  be  done  without  great  inconvenience. 

13  36  St.  at  L.   1087.     See  §   166,       infra. 


186  ORIGINAL    JURISDICTION.  [§    61 

"§  41.  The  trial  of  all  offenses  committed  upon  the  high  seas, 
or  elsewhere  out  of  the  jurisdiction  of  any  particular  State  or 
district,  shall  be  in  the  district  court  where  the  offender  is  found, 
or  into  which  he  is  first  brought. 

§  42.  When  any  offense  against  the  United  States  is  begun 
in  one  judicial  district  and  completed  in  another,  it  shall  be 
.deemed  to  have  been  committed  in  either,  and  may  be  dealt 
with,  inquired  of,  tried,  determined,  and  punished  in  either 
district,  in  the  same  manner  as  if  it  had  been  actually  and 
wholly  committed  therein. 

§  43.  All  pecuniary  penalties  and  forfeitures  may  be  sued 
for  and  recovered  either  in  the  district  where  the.y  accrue  or 
in  the  district  where  the  offender  is  found. 

§  44.  Taxes  accruing  under  any  law  providing  internal 
revenue  may  be  sued  for  and  recovered  either  in  the  district 
where  the  liability  for  such  tax  occurs  or  in  the  district  where 
the  delinquent  resides. 

§  45.  Proceedings  on  seizures  made  on  the  high  seas,  for 
forfeiture  under  any  law  of  the  United  States,  may  be  prose- 
cuted in  any  district  into  which  the  property  so  seized  was 
brought  and  proceedings  instituted.  Proceedings  on  such  seiz- 
ures made  within  any  district  shall  be  prosecuted  in  the  dis- 
trict where  the  seizure  is  made,  except  in  cases  where  it  is 
otherwise  provided.  s 

§  46.  Proceedings  for  the  condemnation  of  any  property 
captured,  whether  on  the  high  seas  or  elsewhere  out  of  the  limits 
of  any  judicial  district,  or  within  any  district,  on  account  of 
its  being  purchased  or  acquired,  sold  or  given,  with  intent  to 
use  or  employ  the  same,  or  to  suffer  it  to  be  used  or  employed, 
in  aiding,  abetting,  or  promoting  any  insurrection  against  the 
Government  of  the  United  States,  or  knowingly  so  used  or  em- 
ployed by  the  owner  thereof,  or  with  his  consent,  may  be  prose- 
cuted in  any  district  where  the  same  may  be  seized,  or  into 
which  it  may  be  taken  and  proceedings  first  instituted. 

§  47.  Proceedings  on  seizures  for  forfeiture  of  any  vessel 
or  cargo  entering  any  port  of  entry  which  has  been  closed  by 
the  President  in  pursuance  of  law,  or  of  goods  and  chattels 
coming  from  a  State  or  section  declared  by  proclamation  of  the 
President  to  be  in  insurrection  into  other  parts  of  the  United 
States,  or  of  any  vessel  or  vehicle  coin-eying  such  property,  or 


§    01]  RESIDENCE.  187 

( nnveying  persons  to  or  from  such  State  or  section,  or  of  any 
vessel  belonging,  in  whole  or  in  part,  to  any  inhabitant  of  such 
State  or  section,  may  be  prosecuted  in  any  district  into  which 
the  property  so  seized  may  be  taken  and  proceedings  instituted; 
and  the  district  court  thereof  shall  have  as  full  jurisdiction 
over  such  proceedings  as  if  the  seizure  was  made  in  that  dis- 
trict." 13 

The  Judicial  Code  further  provides:  "§  49.  All  proceedings 
by  any  national  banking  association  to  enjoin  the  Comptroller 
of  the  Currency,  under  the  provisions  of  any  law  relating  to 
national  banking  associations,  shall  be  had  in  the  district  where 
such  association  is  located."  14 

In  suits  by  the  United  States  for  injunctions,  under  the  "Act 
to  protect  trade  and  commerce  against  unlawful  restraints  and 
monopolies,"  whenever  it  appears  to  the  court  before  which  the 
proceeding  is  pending  that  the  ends  of  justice  require  that 
other  parties  shall  be  brought  in,  they  may  be  summoned  whether 
they  reside  in  the  district  or  not.15 

Prosecutions  for  the  offense  of  unlawful  discrimination  in 
the  transportation  of  property  in  interstate  or  foreign  com- 
merce or  for  acts  therewith  connected  are  prosecuted  in  the  dis- 
trict in  which  the  violation  of  the  law  was  committed  or  in 
any  district  through  which  the  transportation  was  conducted.16 
The  statute  regulating  the  liability  of  employers  to  their  em- 
ployees for  injuries  in  their  service,  as  amended  April  5,  1910, 
provided :  "Under  this  act  an  action  may  be  brought  in  the 
Circuit  Court  of  the  United  States  in  the  district  of  the  resi- 
dence of  the  defendant,  or  in  which  the  cause  of  action  arose, 
or  in  which  the  defendant  shall  be  doing  business  at  the  time 
of  commencing  such  action."  "     The  Judicial  Code  provides : 

13  Jurisdiction  of  a  proceeding  for  U.    S.    v.   Whitcomb   M.    R.    Co.,   45 

the    forfeiture    of    smuggled    goods  Fed.  89. 
exists  only  in  the  district  of  seizure,  1*36  St.  at  L.  1087. 

which   is   the   district   in    which   the  15  Act  of  July  2,   1890,  26  St.  at 

goods,  if  on  land,  are  found;   a  col-  L.  209,   §  5;   U.  S.  v.  Standard   Oil 

lector  cannot,  by  carrying  them  in-  Co.  of  New  Jersey,  152  Fed.  290. 
to  another  district  and  there  mak-  16  Act  of  June  29,  1906,  34  St.  at 

ing  the  formal  seizure  confer  juris-  L.  584,  588. 
diction    of    the    proceeding    on    the  17  30  St.  at  L.  291, 

court  in  such  district.    U.  S.  v.  Lar- 
kin,   C.   C.   A.,   153    Fed.    113.      See 


188 


ORIGINAL    JURISDICTION. 


[§   61 


"That  no  ease  arising  under  an  act  entitled  'An  Act  relating 
to  the  liability  of  common  carriers  by  raidroad  to  their  em- 
ployees in  certain  cases,'  approved  April  twenty  second,  nine- 
teen hundred  and  eight,  or  any  amendment  thereto,  and  brought 
in  any  State  court  of  competent  jurisdiction  shall  be  removed 
to  any  court  of  the  United  States."  18  Whether  the  District 
Courts  can  take  original  jurisdiction  of  suits  under  that  stat- 
ute in  any  other  district  from  that  in  which  the  defendant  is 
an  inhabitant,  is  a  question  that  is  undecided.19 

Prior  to  the  Judicial  Code,  it  was  held  that  the  sections  of 
the  Revised  Statutes  limiting  the  jurisdiction,  because  of  the 
residence  of  the  parties,  did  not  aifect  the  jurisdiction  in  ad- 
miralty.20 Courts  of  admiralty  have  jurisdiction  in  proceed- 
ings in  rem  wherever  the  property  is  seized  and  in  proceedings 
in  personam  wherever  the  person  is  served  with  process.21  The 
sections  of  the  Judicial  Code  previously  quoted  preserve  this 
general  jurisdiction  of  courts  of  admiralty  over  certain  pro- 
ceedings in  rem.22  Whether  such  jurisdiction  remains  other- 
wise  the  same  as  before  the  enactment  of  this  Code,  has  not 
been  decided. 

Courts  of  bankruptcy  are  not  affected  by  these  sections.  Such 
may  "adjudge  persons  bankrupt  who  have  had  their  principal 
place  of  business,  resided,  or  had  their  domicile  within  their 
respective  territorial  jurisdictions  for  the  preceding  six  months, 
or  the  greater  portion  thereof,  or  who  do  not  have  their  principal 
place  of  business,  reside,  or  have  their  domicile  within  the 
United  States,  but  have  property  within  their  jurisdictions,  or 
who  have  been  adjudged  bankrupts  by  courts  of  competent  juris- 


18  §  28,  36  St.  at  L.  1087. 

19  Under  the  former  practice,  they 
could  not.  Cound  v.  Atchison,  T.  & 
S.  F.  Ry.  Co.,  173  Fed.  527;  Smith 
v.  Detroit  &  T.  S.  L.  R.  Co..  175 
Fed.  506;  Whittaker  v.  Illinois 
Cent.  R.  Co.,  176  Fed.  130;  Newell 
v.  Baltimore  &  0.  R.  Co..  181  Fed. 
G98. 

20  R e  Louisville  Underwriters,  134 
U.  S.  488,  33  L.  ed.  991. 

21  Ibid.  It  has  been  held:  that 
the    exception    of    suits    "of    a    local 


character"  directs,  by  implication, 
that  such  a  suit  must  be  brought  in 
the  division  where  the  thing  or 
property  proceeded  against  happens 
to  be  situated;  that  a  libel  in  ad- 
miralty is  a  suit  of  a  local  nature, 
and  consequently  must  be  prosecut- 
ed in  the  division  where  the  ves- 
sel is  seized,  although  her  home  port 
is  in  another  division.  The  Wil- 
liamette,  53  Fed.  602. 

22  Jud.  Code,  §§  45,  46,  47,  36  St. 
at  L.  1087. 


§  61] 


RESIDENCE. 


189 


diction  without  the  United  States  and  have  property  within 
their  jurisdictions,"  23  and  "exercise  ancillary  jurisdiction  over 
persons  or  property  within  their  respective  territorial  limits 
in  aid  of  a  receiver  or  trustee  appointed  in  any  bankruptcy 
proceeding's  pending  in  any  other  court  of  bankruptcy,''  24  The 
extent  to  which  jurisdiction  in  suits  by  aliens  is  affected  by 
the  residence  of  the  parties,  is  discussed  in  a  previous  section.25 
It  has  been  held:  that  a  suit  by  the  United  States,  unless  the 
statute  authorizing  the  same  otherwise  provides,  can  be  brought 
only  in  the  district  of  which  the  defendant  is  an  inhabitant ; 2' 
and  that  even  when  an  individual  is  surety  upon  a  bail  bond 
filed  in  a  Federal  court  in  another  State,  his  liability  cannot 
be  established,  except  by  proceedings  in  his  own  State  and 
district.28  The  Act  of  August  13,  1894,  which  directs  the  filing 
of  bonds  by  contractors  upon  public  works  of  the  United  States, 
for  the  security  of  laborers  and  material  men,  provides  that  the 
suit  upon  such  bond  be  brought  ''in  the  Circuit  Court  of  the 
United  States  in  the  district  in  which  said  contract  was  to  be 
performed  and  executed,  irrespective  of  the  amount  in  contro- 
versy in  such  suit  and  not  elsewhere."29  Before  the  Judicial 
Code,  it  was  held  that  this  authorized  the  Federal  court  in  such 
district  to  obtain  jurisdiction  of  the  persons  of  non-resident 
defendants  through  the  service  upon  them  of  its  process  in  what- 
ever district  they  might  be?  found.30  The  effect  of  the  enact- 
ment of  the  Judicial  Code  upon  the  jurisdiction  thereby  granted 


23  30  St.  at  L.  544,  §  2.  See  infra, 
Chapter  on  "Bankruptcy.'? 

24  Ibid.,  as  amended  36  St.  at  L. 
838.     See  infra,  §   612. 

Mtiupra,  §  45. 

26Lederer  v.  Rankin,  90  Fed.  449; 
Lederer  v.  Ferris,  149  Fed  250. 
Contra.  Fraser  v.  Barrie,  105  Fed. 
787. 

27  U.  S.  v.  No.  Pac.  R.  Co.,  C.  C. 
A.,  134  Fed.  715;  Kirk  v.  U.  S.,  C. 
C.  A.,  137  Fed.  753;  affirmed  199  U. 
S.  G07. 

28  Kirk  v.  U.  S.,  C.  C.  A.,  137  Fed. 


753;   affirmed   199  U.  S.  607,  50  L. 
ed.  331. 

29  28  St.  at  L.  278.  amended  33 
St.  at  L.  811.  It  was  held  that  this 
applied  only  to  suits  by  claimants 
for  labor  or  material  supplied  to 
the  contractor  and  not  to  one 
brought  by  the  Government  for  its 
own  benefit.  U.  S.  v.  McGee,  171 
Fed.  209. 

30  U.  S.  v.  Congress  Construction 
Co..  222  U.  S.  199.  See.  also,  U.  S. 
v.  Schofield  Co.,  182  Fed.  240. 


100 


OTIIOINAL    JURISDICTION. 


[§  61 


lias  not  yet  been  decided.  A  former  statute  further  provided: 
"That  any  surety  company  doing  business  under  the  provisions 
of  this  Act  may  be  sued  in  respect  thereof  in  any  court  of  the 
United  States  which  lias  now  or  hereafter  may  have  jurisdiction 
of  actions  or  suits  upon  such  recognizance,  stipulation,  bond,  or 
undertaking,  in  the  district  in  which 'such  recognizance,  stipu- 
lation, bond,  or  undertaing  was  made  or  guaranteed,  or  in  the 
district  in  which  the  principal  office  of  such  company  is  located. 
And  for  the  purposes  of  this  Act  such  recognizance,  stiuplation, 
bond,  or  undertaking  shall  be  treated  as  made  or  guaranteed  in 
the  district  in  which  the  office  is  located,  to  which  it  is  returna- 
ble, or  in  which  it  is  filed,  or  in  the  district  in  which  the  prin- 
cipal in  such  recognizance,  stipulation,  bond,  or  undertaking 
resided  when  it  was  made  or  guaranteed."  31  How  far  this  now 
applies  is  also  an  open  question. 

In  a  suit  within  the  exclusive  jurisdiction  of  the  courts  of 
the  United  States,  the  action  must  be  brought  in  the  district  of 
the  defendants'  residence.32  Where  the  jurisdiction  depends 
upon  the  existence  of  a  Federal  question  and  is  concurrent  with 
that  of  the  State  courts,  the  defendant  must,  unless  a  statute 
otherwise  prescribes,  be  sued  in  the  district  which  he  inhabits ; 3' 
but  where  it  depends  upon  citizenship  in  different  States,  the 
suit  may  be  brought  in  the  district  in  which  either  the  plaintiff 
or  the  defendant  resides,  provided  the  defendant  can  be  duly 
served.34     Since  the  permission  to  sue  in  the  district  of  either 


31  28  St,  at  L.  279. 

32  Macon  Grocery  Co.  v.  Atlantic 
Coast  Line  R.  R.  Co.,  215  U.  S.  501, 
54  L.  ed.  300;  affirming  Atlantic 
Coast  Line  R.  Co.  v.  Macon  Grocery 
Co.,  C.  C.  A.,  166  Fed.  206;  Sunder- 
land Bros.  v.  Chicago,  R.  I.  &  P. 
Ry.  Co.,  158  Fed.  877;  Memphis  Oil 
Co.  v.  Illinois  Cent.  R.«Co.,  164  Fed. 
290;  Imperial  Colliery  Co.  v.  Chesa- 
peake &  Ohio  Ry.  Co.,  171  Fed.  589. 
Contra,  Northern  Pac.  Ry.  Co.  v. 
Pacific  Coast  Lumber  Mfrs.'  Ass'n., 
C.  C.  A.,  9th  Ct.,  165  Fed.  1,  9,  and 
cases  cited. 

S3MeCormick  II.  M.  Co.  v.  Wal- 
thers,    134    U.    S.   41,   43,    33    L.   ed. 


834;  St.  Louis,  V.  &  T.  H.  R.  Co.  v. 
Terre  Haute  &  I.  R.  Co.,  33  Fed. 
385,  386;  In  re  Keasbey  &  Mattison 
Co.,  160  U.  S.  221;  Macon  Grocery 
Co.  v.  Atlantic  Coast  Line  R.  Co., 
215  U.  S.  501,  54  L.  ed.  300. 

34McCormick  H.  M.  Co.  v.  Wal- 
thers.  134  U.  S.  41,  33  L.  ed.  833; 
Pitkin  Min.  Co.  v.  Markell,  33  Fed. 
386;  St.  Louis,  V.  &  T.  H.  R.  Co.  v. 
Terre  Haute  &  I.  R.  Co.,  33  Fed.  385, 
386;  Fales  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  32  Fed.  673;  Short  v.  Chi- 
cago, M.  &  St.  P.  Ry.  Co.,  33  Fed. 
114;  Gavin  v.  Vance.  33  Fed.  84; 
W.  U.  Tel.  Co.  v.  Brown,  32  Fed. 
337:   Macon  Grocery  Co.  v.  Atlantic 


§  61] 


RESIDENCE. 


191 


the  plaintiff  or  the  defendant  is  limited  to  cases  "where  the 
jurisdiction  is  founded  only  on  the  fact  that  the  action  is  be- 
tween citizens  of  different  States,"  where  the  plaintiff's  plead- 
ing shows  both  such  a  difference  of  citizenship  and   that  the 
controversy  arises  under  the  Constitution  or  laws  of  the  United 
States;  the  suit  must  be  brought  in  the  district  of  the  defend- 
ant's habitation,35  unless  the  case  falls  within  one  of  the  express 
statutory  exceptions.    It  has  been  held  that  where  a  count  under 
a  Federal  statute,  which  authories  a  suit  in  a  district  different 
from  that  of  the  residence  of  either  party,  is  joined  with  one 
'arising  under  the  common  law  alone ;  the  suit  cannot  be  main- 
tained in  a  district  in  which  neither  party  resides.36 

Where  the  jurisdiction  depends  upon  citizenship  in  different 
States,  the  suit  may  be  brought  in  the  district  in  which  either 
the  plaintiff  or  the  defendant  resides,  provided  the  defendant 
can  be  duly  served.37     When  one  of  the  plaintiffs  is  a  resident 


Coast  Line  R.  Co.,  215  U.  S.  501,  54 
L.    ed.    300;     affirming    C.    C.     A., 
166    Fed.    206.      It    was    held    that 
a   suit  in   the   Circuit   Court  to  en- 
join,  pending  the   determination   of 
its  reasonableness  by  the  Interstate 
Commerce  Commission,  the  enforce- 
ment of  a  railroad  rate  charged  to 
be  unlawful   as   in  violation  of  the 
interstate   commerce   law   and   anti- 
trust law,  arose  under  the  laws  of 
the  United  States  and  could  only  be 
maintained  against  a  defendant  in  a 
State  of  which  it  was  an  inhabitant, 
Southern     Pac.     Co.     v.     Arlington 
Heights    Fruit    Co.,    C.    C.    A.,    101 
Fed.  101:  and  before  the  enactment 
of  the  Judicial  Code,  that  a  suit  by 
a  shipper  against  a  carrier  to  com- 
pel  the   receipt   and   transportation 
of  merchandise  between  two  States 
did   not   arise    under   a   law    of   the 
United  States,  and  where  the  requi- 
site difference  of  citizenship  existed 
might  be  brought   in  the  district  of 
the   residence   of  either   plaintiff   or 
defendant,  Danciger  v.  Wells,  Fargo 
&  Co.,  154  Fed.  379. 


35  Imperial  Colliery  Co.  v.  Chesa- 
peake &  Ohio  Ry.  Co.,  Powhatan  C. 
&  Coke  Co.  v.  Norfolk  &  Western 
Ry.  Co.,  171  Fed.  589;  Cound  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.,  173 
Fed.  527;  Smith  v.  Detroit  &  T.  S. 
L.  R.  Co.,  175  Fed.  506;  Whittaker 
v.  Illinois  Cent.  R.  Co.,  176  Fed. 
130;  Newell  v.  Baltimore  &  O.  R. 
Co.,   181   Fed.   698. 

36  Ware-Kramer  Tobacco  Co.  v. 
Am.  Tobacco  Co.,  178  Fed.  117.  See 
Sunderland  Bros.  v.  Chicago,  R.  I. 
&  P.  Ry.  Co.,  158  Fed.  877;  Atlantic- 
Coast  Line  R.  Co.  v.  Macon  Grocery 
Co.,  C.  C.  A.,  166  Fed.  206:  Imperial 
Colliery  Co.  v.  Chesapeake  &  Ohio 
Ry.  Co.,  171  Fed.  589. 

37McCormick  H.  M.  Co.  v.  Walth- 
ers,  134  U.  S.  41,  33  L.  ed.  833; 
Pitkin  Min.  Co.  v.  Markell,  33  Fed. 
386:  St.  Louis,  V.  &  T.  H.  R.  Co. 
v.  Terre  Haute  &  I.  R.  Co.,  33  Fed. 
385.  386;  Fales  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  32  Fed.  673;  Short  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  33 
Fed.   114;   Gavin  v.  Vance,  33   Fed. 


192 


ORIGINAL    JURISDICTION. 


[§  61 


of  the  district,  and  the  other  plaintiff  and  the  defendant  are 
citizens  of  different  States  from  those  of  each  other  and  of  the 
plaintiff,  and  arc  both  non-residents,  the  Federal  court  has  no 
jurisdiction.38  Where  plaintiffs  are  citizens  and  residents  of 
different  States,  and  the  defendant  is  a  citizen  and  resident  of 
a  third  State,  the  suit  may  be  brought  in  the  district  of  the  de- 
fendant's residence.39  Where  the  defendants  are  residents  of 
different  States,  it  has  been  hold  that  the  suit  cannot  be  brought 
in  any  district  except  that  of  the  plaintiff's  residence.40  The 
defendant  cannot  remove  a  case  to  a  district  where  neither  party 
resides,41  and  if  he  so  attempts,  the  plaintiff  may  have  the  case 
remanded.42  It  has  been  held  that  the  assignee  of  a  cause  of 
action,  when  the  jurisdiction  is  founded  upon  diversity  of  citi- 
zenship, can  sue  in  the  district  of  which  he  is  a  resident  or  in 
that  of  the  defendant,  irrespective  of  the  district  in  which  the 
assignor  resided.43  It  has  been  said  that  "the  words  'inhabi- 
tant,'  'residence,'  and  'resident,'  as  used  in  the  statute,  are 
synonymous.  To  hold  otherwise  is  to  add  confusion."  44  "The 
word  inhabitant  in  that  act  was  apparently  used  not  in  any 


84;    W.   U.   Tel.    Co.    v.   Brown,    32 
Fed.  337. 

38  Smith  v.  Lyon,  133  U.  S.  315, 
33  L.  ed.  635,  Moffat  v.  Soley,  Fed. 
Cas.  No.  9,688,  2  Paine,  103;  Elk- 
hart Nat.  Bank  v.  N.  W.  G.  L.  Co., 
84  Fed.  76;  Hubbard  v.  Northern 
Railroad  Co.,  Fed.  Cas.  No.  6.81 8,  3 
Blatchf.  84,  25  Vt.  715. 

39  Sweeney  v.  Carter  Oil  Co.,  109 
V.  S.  252.  50  L.  ed.  178. 

40  Excelsior  Pebble  Phosphate  Co. 
v.  Brown.  74  Fed.  321.  20  C.  C.  A. 
428,  42  U.  S.  Ap'p.  55.  See  also 
Smith  v.  Lyon.  133  U.  S.  315,  33 
L.  ed.  65;  McAulay  v.  Moody,  185 
Fed.  144.  Contra,  Graig  v.  Cum- 
mings,  Fed.  Cas.  No.  3,331.  Peters 
C.  C.  431,  2  Washington  C.  C, 
505;  Wiggins  v  European  &  X. 
ay.  Co.,  Fed.  ('as.  No.  17,626, 
1  Hask.  122:  Mowrey  v.  Indian- 
apolis &  C.  R.  Co.,  Fed.  ('as.  \'o. 
9,891,    4    Bissell,    78;     RawLtzer    v. 


Wyatt,  40  Fed.  609.  In  Bensinger 
Self-Adding  Cash  Register  Co.  v. 
National  Cash  Register  Co.,  42  Fed. 
81,  the  action  was  dismissed  as  to 
the  non-resident,  but  retained  as  to 
the  resident,  defendant. 

41  Ex  parte  Wisner,  203  U.  S.  449, 
51  L.  ed.  264;  Yellow  Aster  Min.  & 
Mill.  Co.  v.  Crane  Co.,  C.  C.  A..  150 
Fed.  580;  Goldberg,  Bowen  &  Co.  v. 
German  Ins.  Co..  152  Fed.  831;  H. 
J.  Decker,  Jr.,  &  Co.  v.  Southern 
Ry.  Co..   189  Fed.  224. 

**Ex  parte  Wisner,  203  U.  S.  449, 
51  L.  ed.  264;  H.  J.  Decker.  Jr.,  & 
Co.  v.  Southern  Ry.  Co.,  189  Fed. 
224.  51    L.  ed.  264. 

43  Stimson  v.  United  Wrapping 
Mach.  Co.,  156  Fed.  298.  Contra, 
Waterman  v.  Chesapeake  &  O.  Ry. 
Co.,    199  Fed.  667. 

44  Bogue  v.  Chicago,  B.  k  Q.  R. 
Co.,  193  Fed.  728,  733,  Smith  Mc- 
Pherson,  J. 


61] 


RESIDENCE. 


193 


larger  meaning  than  'citizen,'  but  to  avoid  the  ineongnity  of 
speaking  of  a  citizen  of  less  than  a  State,  when  the  intention 
was  to  cover  iiot  only  a  district  which  included  a  whole  State, 
but  also  two  districts  in  one  State."  45  The  word  "inhabitant" 
seems  however,  to  be  more  limited  than  resident.46  Inhabitancy 
within  the  State,  which  is  divided  into  two  districts,  is  not 
inhabitancy  in  both  of  them.47 

A  corporation  chartered  by  one  of  the  United  States  cannot 
have  a  residence  in  another  State,48  even  where  it  has,  as  a 
condition  of  doing  business  therein,  filed  a  stipulation  au- 
thorizing service  of  process  upon  its  agents  within  the  State 
and  agreeing  not  to  remove  a  suit  to  the  Federal  court  on  the 
ground  of  diiference  of  citizenship  or  non-residence.49  In  the 
absence  of  any  provision  in  the  charter,  the  principal  office  and 
the  domicile  of  a  railroad  company  incorporated  by  Congress 
is  where  the  meetings  of  its  stockholders  and  directors  are  held, 
and  the  records  thereof  with  the  registry  of  its  stock  are  kept, 
and  not  where  the  general  administrative  offices  of  the  heads 
of  its  departments  are  located.50  Where  a  State  contains  more 
than  one  Federal  judicial  district,  a  corporation  of  the  State 
is  presumed  to  be  a  resident"  and  inhabitant  of  the  district  in 
which  it  has  its  principal  office,  as  designated  in  its  certificate 
or  articles  of  incorporation  in  accordance  with  the  statutory 


Rv 


145 


45 Gray,  J„  in  Shaw  v.  Quiney 
Min.  Co.,  145  U.  S.  444,  447,  30  L. 
ed.  768,  770. 

46  For  cases  of  residence,  see  King 
v.  U.  S.,  59  Fed.  9;  Rivers  v.  Brad- 
ley, 53  Fed.  305;  Reckling  v.  M>- 
Kinstry,  185  Fed.  842. 

47  Wange    v.    Public    Service 
Co.,  159  Fed.  189. 

48  Shaw  v.  Quiney  Min.  Co., 
U.  S.  444,  453,  36  L.  ed.  768.  772: 
Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Gonzales,  151  U.  S.  496,  38  L.  ed. 
248;  Southern  Pac.  Co.  v.  Arlington 
Heights  Fruit  Co.,  C.  C.  A.,  191 
Fed.  101;  Stone  v.  Chicago,  B.  &  Q. 
R.  Co.,  195  Fed.  832.  Contra,  Bogue 
v.  Chicago,  B.  &  Q.  R.  Co.,  193  Fed. 
728. 

Fed.  Prac.  Vol.  I.— 13. 


49  Southern  Pac.  Co.  v.  Denton, 
146  U.  S.  202.  207,  36  L.  ed.  943, 
945. 

50  Interstate  Com.  Com.  v.  Texas 
&  Pac.  Ry.  Co.,  57  Fed.  948,  955; 
Texas  &  Pac.  Ry.  Co.  v.  Interstate 
Com.  Com.,  162  U.  S.  197,  204,  40 
L.  ed.  940,  942.  It  has  been  held 
that  the  Texas  &  Pacific  Ry.  Co. 
was  an  inhabitant  of  Dallas  County, 
Texas,  where  it  maintained  an  office, 
which  it  designated  as  its  general 
office,  and  where  all  the  acts  of  the 
board  of  directors  in  New  York  were 
subsequently  affirmed  at  a  board 
meeting,  the  senior  vice-president 
living  in  the  same  county.  Matter 
of  Dunn,  212  U.  S.  374,  388,  53  L. 
ed.  558,  564. 


194 


ORIGINAL    JURISDICTION. 


[§  61 


requirements.51  Where  a  State  is  divided  into  several  Federal 
districts,  it  seems  that  the  district  of  the  residence  of  a  domestic 
corporation  is  fixed  by  the  State  statute.52  It  is  usually  either 
the  location  of  its  principal  place  of  business  or  the  personal 
residence  of  the  party  whom  it  has  appointed  as  its  attorney -of - 
fact,  upon  whom  service  of  process  may  be  made.53  Where  a 
domestic  corporation  failed  to  comply  with  the  statute  of 
West  Virginia,54  by  filing  a  power  of  attorney  appointing  a 
private  individual  with  authority  to  accept  service  of  process 
and  with  other  statutory  powers,  but  had  complied  with  an- 
other statute  appointing  the  State  auditor  its  attorney  to  accept 
such  service;. it  was  held  to  be  liable  to  suit  in  either  of  the 
Federal  districts  of  the  State,  by  attachment  and  publication, 
or  by  serving  process  upon  the  State  official  in  that  or  the  other 
district.55 

The  limitation  as  to  residence  does  not  apply  to  defendants 
who  are  served,  in  pursuance  of  the  statute,  by  publication  or 
without  the  State  or  district,56  even  when  they  are  the  only 
defendants.57  It  has  been  held  that  the  limitation  of  the  juris- 
diction to  the  place  of  the  residence  of  the  parties  does  not 
apply  to  local  actions,  such  as  ejectment,58  or  for  trespass  upon 
land ; 69  that  such  actions  can  only  be  brought  in  the  district 


51  Firestone  Tire  &  Rubber  Co.  v. 
Vehicle  Equipment  Co.,  155  Fed. 
676. 

52  Lemon  v.  Imperial  Window 
Glass  Co.,  199  Fed.  927. 

53  Ibid. 

54  Code  W.  Va.,  §  2313. 

55  Lemon  v.  Imperial  Window 
Class  Co.,  199  Fed.  927. 

56  Greeley  v.  Lowe,  155  U.  S.  58, 
39  L.  ed.  69;  Dick  v.  Foraker,  155 
I  .  S.  404,  39  L.  ed.  201;  Carpenter 
V.  Talbot,  33  Fed.  537;  Pollitz 
v.  Farmers'  L.  &  Tr.  Co.,  39 
Fed.  707;  Ames  v.  Holderbaum,  42 
Fed.  341  ;  U.  S.  v.  Southern  Pac. 
R.  Co..  63  Fed.  481  ;  Wheelright  v. 
St.  Louis,  N.  O.  &  0.  Canal  Co.,  50 
Fed.  709:  Texas  Co.  v.  Central  Fuel 
Oil  Co..  C.  C.  A..  194  Fed.  1;  Inger- 
soll  v.  Coram,  211   U.  S.  335,  53  L. 


ed.  208;  Howard  v.  National  Tele- 
phone Co.,  182  Fed.  215,  infra,  §  166. 
See  Kuhn  v.  Morrison,  75  Fed.  81  ; 
but  see  Detweiler  v.  Holderbaum 
(C.  C),  42  Fed.  337. 

57  Dick  v.  Foraker,  155  U.  S.  404, 
39  L.  ed.  201;  Wheelright  v.  St. 
Louis,  N.  O.  &  O.  Canal  Co.,  50  Fed. 
709;  U.  S.  v.  Southern  Pac.  R.  Co., 
63  Fed.  481:  Single  v.  Scott  Paper 
Mfg.  Co.,  55  Fed.  553. 

58  Spencer  v.  Kansas  City  Stock 
Yards  Co.,  56  Fed.  741  ;  Elk  Garden 
Co.  v.  T.  W.  Thayer  Co.,  179  Fed. 
556. 

59  Kentucky  Coal  Lands  Co.  v. 
Mineral  Development  Co.,  191  Fed. 
899.  See  Livingston  v.  Jefferson. 
1  Brock  203,  4  Hughes  606.  4  Hall. 
L.  J.   78,    11    Myers'   Fed.   Dec.   721, 


61] 


RESIDENCE. 


195 


where  the  land  is  situated;  and  that  they  may  there  be  brought, 
irrespective  of  the  residence  of  the  parties  and  without  the  pro- 
curement of  an  order  for  the  service  of  process  outside  the  dis- 
trict; provided  that  the  necessary  difference  of  citizen- 
ship exists  and  that  the  defendant  can  be  found  there.60  The 
fact  that  a  suit  relates  to  land  lying  within  the  jurisdiction  does 
not  give  jurisdiction  to  the  Federal  court  when  there  is  no 
difference  of  citizenship,  nor  Federal  question  involved.61 
Where  a  suit  was  brought  in  a  Federal  court  to  recover  land 
in  another  district,  together  with  the  rent  of  the  same;  it  was 
held  that  there  was  jurisdiction  to  award  judgment  for  the 
value  of  the  rents.62  When  there  is  no  Federal  question  in- 
volved, an  action  begun  in  the  State  court  between  two  non- 
residents by  an  attachment  cannot  be  removed,  although  the 
necessary  difference  of  citizenship  exists.63 

It  has  been  held  at  circuit  that  the  non-resident  defendant 
alone  can  object,  because  the  suit  is  not  brought  in  the  proper 
district.64  The  objection  is  waived  by  the  joinder  of  issue,65 
or,  it  seems,   by  a  general  appearance,66  without  raising  the 


Fed.  Case  No.  8411;  Northern  In- 
diana Ry.  Co.  v.  Michigan  Central 
Ry.  Co..  15  How.  233.  14  L.  ed.  074; 
Ellenwood  v.  Marietta  Chair  Co., 
158  U.  S.  105,  15  Sup.  Ct.  771,  39 
L.  ed.  913. 

60  Spencer  v.  Kansas-  City  Stock 
Yards  Co.,  56  Fed.  741;  Kentucky 
Coal  Lands  Co.  v.  Mineral  Develop- 
ment Co.,  191  Fed.  899. 

61  Pooley  v.  Luco,  72  Fed.  5G1. 

62  Eealey  v.  Humphrey,  C.  C.  A., 
81  Fed.  990. 

63  George  v.  Tennessee  Coal,  Iron 
&  R.  Co.,  184  Fed.  951. 

64  Jewett  v.  Bradford  Sav.  Bank 
&  Tr.  Co.,  45  Fed.  801;  Smith  v. 
Atchison,  T.  &  S.  F.  R.  Co.,  64  Fed. 
1  ;  Freeman  v.  Am.  Surety  Co.,  116 
Fed.  548;  Schiffer  v.  Anderson,  C. 
C.  A.,  146  Fed.  457;  H.  J.  Decker, 
Jr.  &  Co.  v.  Southern  Ry.  Co.,  189 
Fed.  224. 

65  VVestern  Loan  &  Savings  Co.  v. 


Butte  &  Boston  Consol.  Min.  Co., 
210  U.  S.  368,  52  L.  ed.  1101;  At- 
chison, T.  &  S.  F.  Ry.  Co.  v.  Gilli- 
land,  C.  C.  A.,  193  Fed.  608;  Texas 
Co.  v.  Central  Fuel  Oil  Co.,  C.  C.  A.. 
194  Fed.  1.  Where  the  plaintiff's 
pleading  in  an  action  brought  in  the 
Federal  court  did  not  refer  to  the 
Employers'  Liability  Act,  but  the 
court  submitted  the  case  to  the  jury 
upon  the  theory  that  it  was  based 
upon  the  same;  it  was  held  that  the 
failure  of  the  defendant  to  specify 
the  objection  that  it  could  not  be 
sued  under  such  statute  in  that  dis- 
trict was  a  submission  to  the  juris- 
diction. Erie  R.  Co.  v.  Kennedy, 
C.  C.  A.,  191  Fed.  332. 

66  St.  Louis  &  S.  F.  Ry.  Co.  v. 
McBride,  141  U.  S.  127,  35  L.  ed. 
659;  Texas  &  P.  Ry.  Co.  v.  Cox.  145 
I".  S.  593,  603.  36  L.  ed.  S29.  832; 
Interior  Const.  &  I.  Co.  v.  Gibney, 
160  F.  S.  217,  40  L.  ed.  401:   Ceil- 


196 


ORIGINAL    JURISDICTION. 


[§  62 


same;  even  when  neither  of  the  parties  resides  within  the  dis- 
trict and  the  ease  was  removed  from  a  State  court.67  It  has 
been  said  that  the  service  of  a  notice  for  the  taking  of  deposi- 
tions, which   is  entitled  in  the   Federal  court,   is  not  such  a 

*  I'r, 

waiver. 

§  62.  Limitation    upon    jurisdiction    in    patent    cases. 

The  Judicial  Code  povides:  a§  48.  In  suits  brought  for  the 
infringement  of  letters  patent  the  District  courts  of  the  United 
States  shall  have  jurisdiction,  in  law  or  in  equity,  in  the  dis- 
trict of  which  the  defendant  is  an  inhabitant,  or  in  any  district 
in  which  the  defendant,  whether  a  person,  partnership,  or  cor- 
poration, shall  have  committed  acts  of  infringement  and  have 
a  regular  and  established  place  of  business.  If  such  suit  is 
brought  in  a  district  of  which  the  defendant  is  not  an  inhabi- 
tant, but  in  which  such  defendant  has  a  regular  and  established 
place  of  business,  service  of  process,  summons,  or  subpoena  upon 
the  defendant  may  be  made  by  service  upon  the  agent  or  agents 
engaged  in  conducting  such  business  in  the  district  in  which 
suit  is  brought."  * 

In  a  suit  to  enjoin  the  infringement  of  a  patent,  the  defend- 
ant, when  not  an  alien,2  may  be  sued  in  any  district  where  his 


tral  Trust  Co.  v.  McGeorge,  151  U. 
S.  129,  38  L.  ed.  98;  Fosha  v.  W. 
U.  Tel.  Co.,  114  Fed.  701:  Occi- 
dental Consol.  Min.  Co.  v.  Comstock 
Tunnel  Co.,  120  Fed.  518;  U.  S. 
Consol.  Seeded  Raisin  Co.  v.  Phoenix 
Raisin,  S.  &  P.  Co.,  124  Fed.  234; 
Philadelphia  &  Boston  Face  Brick- 
Co.  v.  Warford,  123  Fed.  843:  Cor- 
win  Mfg.  Co.  v.  Henrici  Washer  Co., 
151  Fed.  938;  Thomson-Houston  El. 
Co.  v.  Electrose  Mfg.  Co.,  155  Fed. 
543;  Dulles  v.  H.  D.  Crippen  Mfg. 
Co.  et  ah,  156  Fed.  706;  Bogue  v. 
Chicago,  B.  &  Q.  R.  Co.,  193  Fed. 
728.  But  see  Chesapeake  &  0.  Coal 
Agency  Co.  v.  Fire  Creek  Coal  & 
Coke  Co.,  119  Fed.  942. 

67  Matter  of  Moore,  209  U.  S.  490, 
52  L.  ed.  904 ;  where  it  was  held 
that  the  filing  by  the  plaintiff  of 
an  amended  answer  and  his  stipula- 


tion for  a  continuance  after  the  re- 
moval was  an  acceptance  of  the  ju- 
risdiction of  the  Circuit  Court.  In 
Kreigh  v.  Westinghouse,  Church, 
Kerr  &  Co.,  214  U.  S.  249,  53  L. 
ed.  984;  it  was  held  that  such  a 
waiver  was  made  by  a  joinder  of 
issue  on  the  merits  without  such  an 
objection.  To  a  similar  effect  are 
the  rulings  in  Western  Loan  &  Sav. 
Co.  v.  Butte  &  Boston  Consol.  Min. 
Co.,  210  U.  S.  368,  52  L.  ed.  1101; 
Corwin  Mfg.  Co.  v.  Henrici  Washer 
Co.,  151  Fed.  938;  Louisville  &  N. 
R.  Co.  v.  Fisher,  C.  C.  A.,  11  L.R.A. 
(N.S.)  920,  155  Fed.  68;  Proctor 
Coal  Co.  v.  United  States  Fidelity 
&  C4uaranty  Co.,  158  Fed.  211. 

68  Hubbard  v.  Chicago,  M.  &  St. 
P.  Ry.  Co..  170  Fed.  994. 

§  62.     136  St.  at  L.  1087. 

2  United    Shoe    Machinery    Co.   v. 


02] 


RESIDENCE    IN    PATENT    CASES. 


197 


infringement  occurred,  if  he  has  a  regularly  established  place 
of  business  there,  or  else  in  the  district  of  which  he  is  an  inhabi- 
tant,3 but  not  elsewhere.4  When  the  suit  is  brought  in  the 
district  of  which  the  defendant  is  not  an  inhabitant,  he  must 
have  a  regular  and  established  place  of  business  there,  at  the 
time  when  the  suit  is  brought.5  Whether  that  was  the  case 
at  the  time  of  the  commission  of  the  acts  of  infringement  there, 
is  immaterial.6  It  has  been  held:  that  a  corporation  cannot 
be  sued  in  a  district  where  it  has  no  regular  and  established 
place  of  business,  although  it  has  one  in  another  district  in 
the  same  State,  where  it  is  incorporated  in  the  same  State  and 
it  is  charged  with  an  infringement  made  jointly  with  other  de- 
fendants residing  in  the  district  where  the  suit  is  brought  and 
a  claim  of  damages  for  conspiracy  is  joined  with  the  prayer 
for  an  injunction  and  accounting;7  that  where  the  non-residence 
of  defendant  appears  in  the  bill,  there  must  be  averments  of 
infringement  in  the  district ; 8  but  that  the  phrase,  "maintains 
a  regular  and  established  place  of  business,"  need  not  be  used 
where  that  fact  appears  from  the  allegations,  and  a  bill  against 
a  corporation  and  its  president  and  general  manager,  who  is  so 
described,  is  not  insufficient  when  it  avers  joint  acts  of  infringe- 
ment within  the  district  and  the  maintenance  of  a  regular  and 
established  place  of  business  by  the  corporation  there,  although 
it  is  silent  as  to  the  individual  defendant's  habitation  and  place 
of  business.9  The  complainant  has  the  burden  of  proof  to 
establish  an  infringement  within  the  district  and  the  main- 
tenance by  the  defendant  of  a  regular  established  place  of  busi- 


Duplessis  Independent  Shoe  Machin- 
ery Co.,   133  Fed.  930. 

3  Bowers  v.  Atlantic  G.  &  P.  Co., 
104  Fed.  887;  Chicago  Pneumatic 
Tool  Co.  v.  Phila.  Pneumatic  Tool 
Co.,  118  Fed.  852;  U.  S.  Consol. 
Seeded  Raisin  Co.  v.  Phoenix  Raisin, 
S.  &  P.  Co.,  124  Fed.  234.  But  see 
Noonan  v.  Chester  Park  Athletic 
Club  Co.,   75   Fed.   334. 

4  Feder  v.  A.  B.  Fiedler  &  Sons, 
110  Fed.  378;  Underwood  Type- 
writer Co.  v.  Fox  Typewriter  Co., 
158  Fed.  476. 

5  Feder  v.  A.  B.  Fiedler  &   Sons, 


116  Fed.  378;  Underwood  Type- 
writer Co.  v.  Fox  Typewriter  Co., 
158  Fed.  47G. 

6  Underwood  Typewriter  Co.  v. 
Fox  Typewriter  Co.,  158  Fed.  476. 

7  Cheatham  El.  Switching  Device 
Co.  v.  Transit  Development  Co.,  191 
Fed.  727. 

8  International  Wireless  Tele- 
graph Co.  v.  Fessenden,  131  Fed. 
491;  National  El.  Signaling  Co.  v. 
Telefunken  Wireless  Telegraph  Co., 
194  Fed.  893. 

9  Thomson-Houston  El.  Co.  v. 
Electrose  Mfg.  Co.,  155  Fed.  543. 


198 


ORIGIXAL    JURISDICTION. 


[§   62 


ness  there.10  It  has  been  held:  That  it  is  necessary  to  prove 
and  allege  a  complete  act  of  infringement  within  the  district 
and  not  merely  a  threat  or  an  evident  purpose  of  an  infringe- 
ment there.11  That  where  the  defendant  sells  the  infringing 
articles  at  a  fixed  place  within  the  district  and  also  there  assem- 
bles different  parts  of  the  same,  the  court  there  held  has  juris- 
diction.12 That  the  contributory  act  within  the  jurisdiction 
must  be  proved  to  have  resulted  in  a  complete  infringement.13 
That  proof  that  salesmen  of  the  defendant  exhibited  infring- 
ing articles  within  the  district  and  that  one  of  them  said  that 
his  employer  had  sold  many  there,  is  insufficient  to  establish 
the  jurisdiction.14  Proof  that  the  defendant,  who  has  constructed 
an  infringing  machine  in  another  State,  has  assisted  in  the 
installation  of  the  same  for  use  by  another  defendant  within 
the  district ;  is  sufficient  to  support  the  jurisdiction  when  it  has 
an  established  place  of  business  there.15  Where  the  defendant 
denies  an  allegation  of  infringement  within  the  district,  the 
issue  thereupon  is  limited  to  infringement  within  such  district.16 
The  provision  that  service  of  process  may  be  made  upon  the 
agent  engaged  in  conducting  the  business  within  the  district, 
is  permissive  only,  and  service  may  be  made  upon  an  officer  of 
a  corporation  who  is  there  found.17     Under  the  former  statute, 


10  Underwood  Typewriter  Co.  v. 
Fox  Typewriter  Co.,  181  Fed.  541. 
For  another  case  of  defective  proof, 
see  Consolidated  Rubber  Tire  Co.  v. 
B.  F.  Goodrich  Co..  195  Fed.  764. 
Tt  has  been  held  that  proof  that 
the  label,  "New  York,"  were  upon 
infringing  articles  sold  in  another 
State  by  a  corporation  with  a  reg- 
ular and  established  place  of  busi- 
ness in  New  York,  is  insufficient  to 
prove  that  they  were  manufactured 
in  New  York,  Rum  ford  Chemical 
Works  v.  Egg  Baking  Powder  Co., 
145  Fed.  953;  and  that  proof  that 
salesmen  of  the  defendant  exhib- 
ited infringing  articles  within  the 
district,  together  with  statements 
by  the  salesman  that  his  employer 
had  sold  many  there,  is  insufficient 
to   establish    the    jurisdiction.    Gray 


v.  Grinberg,  147  Fed.  732.  See  also 
the  note  to  Bailey  v.  Mosher,  11  C. 
C.  A„   304.  313. 

11  Westinghouse  El.  Co.  v.  Stan- 
ley El.  Co.,  116  Fed.  041:  Gray  v. 
Grinberg,  147  Fed.  732. 

12  Am.  Stoker  Co.  v.  Underfeed 
Stoker  Co.,  182  Fed.  642. 

13  Consolidated  Rubber  Tire  Co. 
v.  Republic  Rubber  Co.,  195  Fed. 
768. 

H  Gray  v.  Grinberg,  147  Fed.  732. 
See  also  the  note  to  Bailey  v, 
Mosher,  11  C.  C.  A.  304,  313. 

15  Edison  v.  Allis-Chalmers  Co., 
191    Fed.  S37. 

16  Gray  v.  Grinberg,  C.  C.  A.,  159 
Fed.  138. 

17  National  El.  Signaling  Co.  v. 
Telefunken  Wireless  Telegraph  Co., 
194  Fed.  893. 


§  63] 


ASSIGNEES. 


190 


it  was  held  that  a  suit  to  compel  the  issue  of  a  patent  might  be 
brought  in  any  district  whore  valid  service  could  be  made  upon 
the  defendant.18  The  pendency  of  a  suit  in  the  district  where 
the  defendant  is  incorporated  is  no  defense  to  another  suit 
against  the  same  in  another  district;  but,  in  such  a  case,  the 
accounting  in  the  latter  suit  will  be  limited  to  infringements 
within  the  district, 

§  63.  Suits  by  assignees.  "Xo  district  court  shall  have 
cognizance  of  any  suit  (except  upon  foreign  bills  of  exchange) 
to  recover  upon  any  promissory  note  or  other  chose  in  action 
in  favor  of  any  assignee,  or  of  any  subsequent  holder  if  such 
instrument  be  payable  to  hearer  and  be  not  made  by  any  cor- 
poration', unless  such  suit  might  have  been  prosecuted  in  such 
court  to  recover  upon  said  note  or  other  chose  in  action  if  no 
assignment  had  been  made."  x 


"Lewis  Blind  Stitch  Co.  v.  Ar- 
better  Felling  Mach.  Co.,  181  Fed. 
974. 

§  G3.  1  Judicial  Code,  §  24,  subd. 
1,  36  St.  at  L.  1087.  The  former 
statute  extended  this  limitation 
upon  the  jurisdiction  to  suits  "to 
recover  the  contents  of  any  promis- 
sory note  or  other  chose  in  action 
in  favor  of  an  assignee,"  &c.  It 
may  be  that  the  omission  of  the 
phrase  will  induce  the  courts  to  dis- 
regard some  of  the  earlier  decisions. 
It  seems,  however,  that  it  will  be 
useful  for  the  practitioner  here  to 
collect  them.  "The  terms  used,  'the 
contents  of  any  promissory  note  or 
other  chose  in  action,'  were  designed 
to  embrace  the  rights  the  instrument 
conferred  which  were  capable  of  en- 
forcement by  suit.  They  were  not 
happily  chosen  to  convey  this  mean- 
ing, but  they  have  received  a  con- 
struction substantially  to  that  pur- 
port in  repeated  decisions."  Shoe- 
craft  v.  Bloxham.  124  U.  S.  7:50. 
735,  31  L.  ed.  574,  576;  affirmed  in 
Plant  Inv.  Co.  v.  Jacksonville,  T. 
&  K.  W.  Ry.  Co.,  132  U.  S.  71,  76, 


38  L.  ed.  358,  360.  The  phrase  "suit 
to  recover  the  contents  of  a  chose 
in  action"  includes  suits  to  recover 
debts,  Utah-Nevada  Co.  v.  De 
Lamar,  113  Fed.  113,  66  C.  C.  A. 
179;  or  any  claims  for  damages  for 
breach  of  contract,  an  oral  contract 
as  well  as  one  in  writing,  or  for 
torts  connected  with  contract,  Bush- 
nell  v.  Kennedy,  9  Wall.  387,  390, 
19  L.  ed.  736:  Sere  v.  Pitot,  6 
Cranch,  332,  335,  336,  3  L.  ed.  240, 
241;  Sheldon  v.  Gill,  8  How.  441, 
449,  450,  12  L.  ed.  1147,  1151; 
Tredway  v.  Sanger,  107  U.  S.  323, 
325,  27  L.  ed.  582,  583;  Mersman 
v.  Werges,  112  U.  S.  139,  143,  28 
L.  ed.  641,  643:  Corbin  v.  County 
of  Black  Hawk,  10.5  U.  S.  659,  665, 
666,  26  L.  ed.  1136,  1138,  1139. 
But  not  the  right  of  a  corporation 
to  set  aside  a  contract  made  by  its 
promoters  which  it  had  assumed, 
Commonwealth  S.  S.  Co.  v.  Am. 
Shipbuilding  Co.,  ]97  Fed.  780;  nor 
a  suit  by  the  assignee  of  a  note  to 
ret-over  damages  against  a  public 
officer  for  the  illegal  execution  of 
the  same,  Indiana  v.  Glover,  155  I  . 


200 


ORIGINAL    .TriMSDICTIOX. 


[i 


0:3 


The  words  "if  such  instrument  be  payable  to  bearer  and  be 
not  made  by  any  corporation"  do  not  limit  the  comprehensive- 


S.  513,  30  L.  ed.  243.  The  phrase 
also  includes  suits  to  foreclose  mort- 
gages, Kolze  v.  Hoadley,  200  U.  S. 
7(5,  50  L.  ed.  377;  Hoadley  v.  Day. 
128  Fed.  302:  Ban  v.  Columbia 
Southern  Ry.  Co.,  109  Fed.  409  (a 
lien)  ;  although  the  bill  also  prays 
a  cancellation  of  a  fraudulent  satis- 
faction thereof,  Kolze  v.  Hoadley, 
200  U.  S.  76,  50  L.  ed.  377.  It  in- 
cludes suits  to  enforce  the  specific 
performance  of  contracts  for  the  de- 
livery of  real  or  personal  property, 
Corbin  v.  County  of  Black  Hawk, 
105  U.  S.  659,  665,  26  L.  ed.  1136, 
1138;  Shoecraft  v.  Bloxham,  124 
U.  S.  730,  31  L.  ed.  574;  Plant 
Inv.  Co.  v.  Jacksonville,  T.  &  K. 
W.  Ry.  Co.,  152  U.  S.  71,  76,  38 
L.  ed.  358,  360;  Jackson  &  S.  Co. 
v.  Pearson,  60  Fed.  113.  A  suit 
to  quiet  title  and  to  cancel  tax 
deeds,  where  complainant  sues  as 
assignee  of  a  mortgage  and  of  a  cer- 
ley,  173  U.  S.  243,  43  L.  ed.  684; 
liticate  of  purchase,  in  foreclosure 
proceedings,  without  having  ac- 
quired the  legal  title,  Farr  v.  Hobe- 
Peters  Land  Co..  C.  C.  A..  188  Fed. 
10.  reversing  170  Fed.  644;  and  to 
recover  upon  a  contract  of  insurance 
with  a  reformation  of  the  policy, 
Laird  v.  Indemnity  Mut.  M.  Co..  44 
Fed.  712.  To  enforce  a  partner's 
or  agent's  right  to  an  accounting. 
Brown  v.  Beacom,  C.  C.  A.,  174  Fed. 
812.  The  phrase  does  not  include 
Dodge.  16  How.  622.  631.  14  L.  ed. 
1085,  1088:  Buckingham  v.  Dake, 
112  Fed.  258,  50  C.  C.  A.  492.  Or 
ejectment.  Smith  v.  Kernochen.  7 
How.  198.  12  L.  ed.  666;  Williti  v. 
Baker.  133  Fed.  937.  Or  otherwise 
brought  to  recover  property  taken 
bv  the  defendant  before  the  assign- 


ment of  the  title  to  the  plaintiff', 
(Jest  v.  Packwoodj  39  Fed.  525. 
Evefl  it  has  been  held  where  the 
assignor  was  a  partnership  which 
conveyed  its  property  to  a  corpo- 
ration, all  the  stock  of  which  was 
divided  between  the  members  of  the 
firm.  Slaughter  v.  Mallet  Land  & 
Cattle  Co..  C.  C.  A.,  141  Fed.  282. 
But  see  §  46,  supra.  Nor  a  suit  to 
recover  damages  for  the  conversion 
of  personal  property.  Ambler  v.  Ep- 
pinger,  137  U.  S.  4S0,  34  L.  ed.  765. 
Nor  a  claim  against  a  railroad  com- 
pany to  recover  excessive  over- 
charges for  freight,  Conn  v.  Chicago, 
B.  &  Q.  R.  Co.,  48  Fed.  177.  Nor  a 
suit  in  equity  to  compel  the  transfer 
of  stock  on  the  books  of  a  corpora- 
tion, Jewett  v.  Bradford  S.  B.  Tr. 
Co..  45  Fed.  801.  .Nor,  it  has  been 
held,  a  suit  by  the  assignee  of  a  cor- 
porate debt  to  enforce  the  individual 
liability  of  a  stockholder,  Ballard  v. 
Bell,  1  Mason.  243.  But  the  court 
refused  to  entertain  a  bill  for  the 
appointment  of  the  receiver  of  a 
corporation  filed  by  a  pledgee  of  its 
stock  whose  pledgor  was  a  citizen 
of  the  corporation's  State,  Gorman- 
Wright  Co.  v.  Wright,  134  Fed.  363, 
67  C.  C.  A.  345.  But  see  Cole  v. 
Phila.  &  E.  Ry.  Co.,  140  Fed.  944. 
It  lias  been  suggested  that  the  re- 
striction applies  only  to  contracts 
"which  may  be  properly  said  to  have 
contents,"  not  to  "mere  nailed  rights 
of  action  founded  on  some  wrongful 
act," — some  neglect  of  duty  to  which 
the  law  attaches  damages,  such  as 
failure  to  protest  a  note:  but  to 
"rights  of  action  founded  on  con- 
tracts which  contain  within  them- 
selves some  promise  or  duty  to  be 
performed,"  Barney  v.  Globe  Bank, 


§   03] 


ASSIGNEES. 


201 


ness  of  the  phrase  "chose  in  action."  2  The  effect  of  this  clause 
is  to  deprive  the  Circuit  Courts  of  all  jurisdiction  for  the  re- 
covery of  promissory  notes  or  other  ehoses  in  action,  except  (1) 
suits  upon  foreign  bills  of  exchange;  (2)  suits  which  might 
have  been  brought  there  had  no  assignment  or  transfer  been 
made;  and  (3)  suits  upon  ehoses  in  action  made  by  corpora- 
tions and  payable  to  bearer.3  A  draft  drawn  in  one  State  and 
payable  in  another  of  the  United  Stales  is  a  foreign  bill  of 
exchange.4 

A  check  is  a  bill  of  exchange.5  A  promissory  note  payable 
"to  the  order  of "  is  equivalent  to  a  promissory  note  paya- 
ble to  bearer.6  A  bill  of  exchange  of  promissory  note  drawn 
to  the  order  of  the  bearer  and  by  him  indorsed  in  blank  is  paya- 
ble to  bearer.7  A  bill  of  exchange  or  promissory  note  drawn 
payable  to  the  order  of  a  specified  person  and  indorsed  by 
him  in  blank  is  not  a  promissory  note  payable  to  bearer  within 
the  statutory  exception.8  A  county  warrant  payable  to  a  speci- 
fied person  or  bearer  is  equivalent  to  one  payable  to  bearer.9 
A  city,10  county,11  incorporated  town,12  or  township,13  is  held 


5  Blatch.  107.  See,  however,  Bush- 
nell  v.  Kennedy,  9  Wall.  387,  391,  1!) 
L.  ed.  736,  738;  Ambler  v.  Eppiiiger, 
3  37  U.  S.  480,  483,  34  L.  ed.  765, 
766. 

2  Mexican  Nat.  R.  Co.  v.  Davison, 
157  U.  S.  201,  206,  207,  39  L.  ed. 
672,  674,  675. 

3  Xewgass  v.  New  Orleans,  33 
Fed.  196;  New  Orleans  v.  Quinlan, 
173  U.  S.  191,  43  L.  ed.  664. 

4  Buckner  v.  Finley,  2  Pet.  586,  7 
L.  ed.  528. 

5  Bull  v.  Bank  of  Kasson,  123  U. 
S.  105,  31  L.  ed.  97. 

6  Steel  v.  Rathburn,  42  Fed.  390; 
Lyon  County  v.  Keene  Five  Cent 
Sav.  Bank,  100  Fed.  337.  40  C.  C. 
A.  391;  affirming  97  Fed.  159; 
Reynolds  v.  Lyon  County,  Iowa,  97 
Fed.  155. 

7  Bank  of  British  N.  A.  v.  Bar- 
ling, 46  Fed.  357;  s.  c.  in  C.  C.  A., 
56   Fed.   260;    Jones   v.   Shapero,   57 


Fed.  457;  Thomson  v.  Town  of  El- 
ton, 100  Fed.  145. 

8  Thomson  v.  Town  of  Elton,  100 
Fed.  145. 

8  Gratiot  County  v.  Aylesworth, 
159  U.  S.  250,  40  L.  ed.  146;  Thomp- 
son v.  Searcy  County,  C.  C.  A.,  57 
Fed.  1030;  Jerome  v.  Rio  Grande 
County  Comm'rs.  18  Fed.  873. 

10  New  Orleans  v.  Quinlan,  173  U. 
S.  191.  43  L.  ed.  664;  affirming  92 
Fed.  695. 

11  Leake  County  Comm'rs  v.  Dud- 
ley. 173  U.  S.  243,  43  L.  ed.  684; 
Gratiot  County  v.  Aylesworth,  159 
U.  S.  250,  40  L.  ed.  146;  Jerome  v. 
Rio  Grante  County  Comm'rs,  18 
Fed.  873;  Rollins  v.  Chaffee  Coun- 
ty, 34  Fed.  91;  Wilson  v.  Knox 
County,  43  Fed.  481 ;  Thompson  v. 
Searcy  County,  C.  C.  A.,  57  Fed. 
1030;  Board  of  Comm'rs  of  Kearny 
County  v.  Irvine,  C.  C.  A.,  126  Fed. 
689. 


202 


ORIGINAL    JURISDICTION. 


[§    03 


to  be  a  corporation,  and  the  holder  of  its  bonds,  warrants,  drain 
orders  or  other  written  obligations  payable  to  bearer  can  sue 
in  a  Federal  court  in  a  proper  case  irrespective  of  the  citizen- 
ship of  any  previous  holder.  The  assignee  of  a  city  warrant 
payable  to  the  order  of  a  specified  person  and  indorsed  by 
have  had  no  jurisdiction  of  a  suit  by  his  assignor,14  but  if  his  as- 
signor might  have  sued  there  the  assignee  may  do  so,  provided 
that  the  requisite  diversity  of  citizenship  exists.15  Jurisdiction 
over  a  suit  upon  coupons,  executed  by  a  municipal  corporation 
payable  to  bearer,  depends  upon  the  status  of  the  owner  of  the 
same,16  although  they  are  cut  from  bonds  payable  to  persons 
who  are  citizens  of  defendant's  State.17  The  acceptance  by  a 
city  of  an  order  by  a  contractor  directing  the  payment  to  a  third 
person  of  part  of  the  contract  price  was  held  to  constitute  a 
new  contract  between  the  city  and  the  payee,  and  not  to  be  the 
assignment  of  the  original  contract.18  When  his  citizenship 
differs  from  that  of  defendant,  the  original  beneficial  owner  can 
sue  in  the  Federal  courts  upon  a  note,  although  an  original  but 
nominal  payee,  by  reason  of  citizenship,  could  not.19  The 
holder  of  a  promissory  note  payable  to  bearer,  which  is  secured 
by  a  mortgage,  may  foreclose  in  a  Federal  court  in  a  case  where 
the  original  holder  could  not.20  Not,  however,  where  the  note 
is  void  and  the  mortgage  valid.21  The  fact  that  a  note  payable 
to  bearer  and  secured  by  a  mortgage  is  overdue  when  it  is  as- 


12  A  New  York  town,  Andes  v. 
Ely,  158  U.  S.  312,  39  L.  ed.  996. 

13  An  Ohio  township,  Loeb  v. 
Trustees  of  Columbia  Tp.,  91  Fed. 
37. 

H  Cloud  v.  City  of  Sumas,  52  Fed. 
177;  New  Orleans  v.  Benjamin,  153 
U.  S.  411,  38  L.  ed.  704,  Seymour 
v.  Farmers'  L.  &  Tr.  Co.,  C.  C.  A., 
128   Fed.  907. 

15  Emsheimer  v.  Xew  Orleans,  180 
U.  S.  33,  40  L.  ed.  1042. 

16  Reynolds  v.  Lyon  County,  97 
Fed.  155;  independent  School  Dist. 
of  Sioux  City  v.  Rew.  Ill  Fed.  1, 
49  C.  C.  A.  198,  55  L.R.A.  304. 


17  Reynolds  v.  Lyon  County, 
Iowa.  97   Fed.  155. 

18  City  of  Superior  v.  Ripley,  138 
U.  S.  93,  34  L.  ed.  914. 

19  Holmes  v.  Goldsmith,  147  U.  S. 
150,  13  Sup.  Ct.  288,  37  L,  ed.  118; 
Superior  City  v.  Ripley,  138  U.  S. 
93,  34  L.  ed.  914;  Hoadley  v.  Day, 
128  Fed.  302;  Kirven  v.  Virginia- 
Carolina  Chemical  Co.,  C.  C.  A., 
145  Fed.  288. 

20  Tied  way  v.  Sanger,  107  U.  S. 
323,  27  L.  ed.  582;  Cross  v.  Allen, 
141  U.  S.  528,  35  L.  ed.  843;  Hoad- 
ley v.  Day,  128  Fed.  302. 

8lMersman  v.  Werges,  112  U.  S. 
139,  28  L.  ed.  641. 


» 


§    63]  ASSIGNEES.  203 

signed  does  not  deprive  the  assignee  of  his  right  to  seek  the 
Federal  jurisdiction, 

A  mortgage  given  by  a  water  company  covering  rentals  ac- 
cruing to  it  under  a  contract  with  a  city  is  no  more  than  an 
assignment  of  a  chose  in  action  as  to  such  rentals,  and,  in  such 
a  case,  one  claiming  the  right  to  enforce  the  contract  by  sub- 
rogation to  the  rights  of  the  mortgagee  is  considered  to  be  an 
assignee.23  But  where  a  municipal  ordinance  directed  that 
the  rents  be  paid  directly  to  the  mortgagee,  it  was  held  that 
the  previous  grant  of  the  franchise  to  citizens  of  defendant's 
State  did  not  affect  the  jurisdiction.24  It  has  been  held :  that 
a  sale  under  a  decree  of  foreclosure  of  waterworks,  together 
with  the  rights  of  all  the  parties  in  the  franchise  and  contract 
under  which  they  were  constructed,  does  not  operate  merely  as 
an  assignment  of  the  contract;  that  such  a  provision  does  not 
affect  the  right  of  the  purchaser  to  maintain  a  suit  in  a  Federal 
court  to  enforce  rights  under  such  contract;  and  that  in  such  a 
case  the  conveyance  vests  the  purchaser  with  rights  in  real 
property,  to  the  full  enjoyment  of  which  the  enforcement  of 
the  contract  is  a  necessary  incident.25  A  purchaser  of  war- 
rants at  a  judicial  sale  under  authority  of  an  order  of  the  pro- 
bate court  is  an  assignee,  within  the  meaning  of  the  statute.26 
The  Illinois  statute  giving  a  plaintiff  in  attachment  the  right 
to  bring  an  action  on  a  forth-coming  bond  taken  by  the  sheriff, 
"the  same  as  if  such  bond  had  been  assigned  to  him,"  does  not 
render  him,  in  fact  or  constructively,  an  assignee,  within  the 
meaning  of  the  act.27  The  prohibition  does  not  extend  to  a 
suit  by  a  stockholder  to  procure  the  appointment  of  a  receiver 
of  his  corporation,  because  of  insolvency.28  A  suit  to  collect 
a  judgment  by  a  creditors'  bill  or  otherwise,  cannot  be  brought 

22  Cross  v.  Allen,  141  U.  S.  528,  25  Portage  City  Water  Co.  v.  Por- 
35  L.  ed.  843.  tage,  102  Fed.  769. 

23  American  Waterworks  &  Guar-  26  Class  v.  Police  Jury  of  Con- 
antee  Co.  v.  Home  Water  Co.,  115  cordia  Parish,  176  U.  S.  207,  44 
Fed.    171;    City    of    Eau    Claire    v.  L.  ed.  436. 

Payson,  107  F.  552,  46  C.  C.  A.  466,  27  Smith  v.  Packard,  98  Fed.  793, 

rehearing  denied    109    Fed.    676,   48  39  C.  C.  A.  294. 

C.  C.  A.  608.  28  Re  Cleland,   218   U.  S.   120,   54 

24  City  of  Seymour  v.  Farmers'  L.  ed.  962.  As  to  other  stockhold- 
Loan  &  Trust  Co.,  128  Fed.  907,  63  ers'  hills,  see  infra,  §  145. 

C.  C.  A.  633. 


204 


ORIGINAL    JURISDICTION. 


[§  63 


in  a  Federal  court  by  an  assignee,  unless  the  assignor  might 
have  sued  there.29     But,  it  seems  that,  where  the  assignee  of  a 
chose  in  action  has  recovered  in  his  own  name,  in  a  State  court, 
a  judgment  upon  the  same;  he  can  bring  a  suit  founded  upon 
such  judgment  in  a  Federal  court,  when  there  exists  the  requis- 
ite difference  of  citizenship  between  himself  and  the  defendant, 
irrespective  of  that  of  his  original  assignor.30     And  it  has  been 
held  that  the  citizenship  of  the  assignor  is  immaterial  in  a  suit 
by  his  assignee,  to  vacate  the  satisfaction  of  a  judgment,31  or 
to  set  aside  a  decree  for  fraud,  although  payment  of  the  claim 
is  incidentally  requisite.32     It  seems  that  the  holder  of  a  mu- 
nicipal warrant,  who  seeks  to  recover  municipal  assets  without 
a  previous  judgment  at  law,  brings  a  suit  to  recover  upon  a 
chose  in  action  within  the  meaning  of  the  statute.33     An  en- 
dorsee, who  is  a  citizen  of  the  same  State  as  the  maker  of  the 
note,  may  sue  his  immediate  endorser  in  a  District  Court  of  the 
United  States,  if  the  latter  be  a  citizen  of  a  different  State 
from  that  of  the  plaintiff;34  but  when,  in  a  suit  by  an  endorser 
against  the  maker35  or  a  prior  endorser,36  the  plaintiff  derives 
his  title  through  a  citizen  of  the  same  State  as  the  defendant, 
such  as  in  the  former  case,  the  original  payee,  there  is  no  juris- 
diction on  account  of  a  difference  of  sitizenship  between  the  de- 
fendant and  the  plaintiff.     There  is  an  exception  in  the  case  of 
accommodation  paper,  where  a  person  who  has  advanced  money 
upon  the  same  can  sue  the  maker  if  there  is  a  diversity  of  citi- 


29  Walker  v.  Powers.  104  U.  S. 
245.  2G  L.  ed.  729;  Metcalf  v.  Wa- 
tertown,  128  U.  S.  586,  32  L.  ed. 
543,  9  Sup.  Ct.  173;  Mississippi 
Mills  v.  Cohn,'  150  U.  S.  202,  37  L. 
ed.  1052.  14  Sup.  Ct.  75:  First  Nat. 
Bank  v.  Dull  County.  74  Fed.  373; 
Sullivan  v.  Aver.   174  Fed.   199. 

SOOber  v.  Gallagher.  93  U.  S.  199, 
206,  23  L.  ed.  829,  831:  Bean  v. 
Smith,  2  Mason,  252,  269 :  Hultberg 
v.  Anderson,  170  Fed.  657. 

31  Hay  v.  Alexandria  &  W.  R.  Co., 
20  Fed.  15.  But  see  Blacklock"  v. 
Small.  127  U.  S.  96,  32  L.  ed.  70. 

32  Bertha  Z.  &  M.  Co.  v.  Vaughn, 
S8  Fed.  566. 


33  New  Orleans  v.  Benjamin,  153 
U.  S.  411,  38  L.  ed.  764. 

34  Young  v.  Bryan,  6  Wheat.  146, 
5  L.  ed.  228;  Manufacturing  Co.  v. 
Bradley,  105  U.  S.  175,  26  L.  ed. 
1034;  Parker  v.  Ormsby.  141  U.  S. 
SI.  35  L.  ed.  654:  Kolze  v.  Hoadley, 
2(Ki  C.  S.  76.  50  L.  ed.  377. 

35  State  Nat.  Bank  of  Denison  v. 
Eureka  Springs  Water  Co.,  174  Fed. 
827. 

36  Turner  v.  Bank  of  N.  A.,  4 
Dall.  8,  1  L.  ed.  718:  Mollan  v.  Tor- 
rance. 9  Wheat.  537.  538,  6  L.  ed. 
154.  But  see  Portage  C.  R.  Co.  v. 
Portage,  102  Fed.  769. 


§,63] 


ASSIGNEES. 


205 


zenship  between  them,  irrespective  of  the  citizenship  of  the 
endorser;37  and  under  similar  circumstances  the  payee  of  a 
bill  of  exchange  can  sne  the  acceptor  although  he  could  not 
have  sued  the  drawer  in  the  Federal  court.38  Assignees  in  in- 
solvency39 and  buyers  at  a  judicial  sale40  are  included  within 
this  restriction;  but  receivers41  and  executors  and  administra- 
tors42 are  not.  A  party  who  claims  the  benefit  of  a  contract  as 
an  incident  to  another  contract  is  to  be  considered  as  the  as- 
signee of  the  former  when  he  sues  to  enforce  it,  although  it 
has  never  been  formally  assigned  to  him.43  A  party  who  claims 
by  subrogation44  or  by  novation45  is  not  within  this  restriction. 
It  was  held  under  the  old  Judiciary  Act  that  the  jurisdiction 
over  a  suit  by  the  heirs  of  a  grantor  of  land  who  had  been 
obliged  to  pay  debts  of  their  ancestor  secured  by  a  lien  upon 
such  land,  to  compel  the  grantee  to  reimburse  them  under  his 
covenant  with  the  grantor,  was  not  affected  by  the  citizenship 
of  the  grantor.46  Where  plaintiff  alleged  a  cause  of  action  for 
damages  for  a  conspiracy  charged  to  have  been  made  by  defend- 
ants against  him  after  he  became  the  assignee  of  a  contract  for 
the  sale  of  real  estate,  it  was  held :  that  the  citizenship  of  plain- 


37  Blair  v.  Chicago,  201  U.  S.  400, 
50  L.  ed.  801;  Goldsmith  v.  Holmes, 
36  Fed.  484;  s.  c,  Holmes  v.  Gold- 
smith, 147  U.  S.  150,  37  L.  ed.  118; 
Wachusett  Nat.  Bank  v.  Siovix  C. 
S.  Works,  56  Fed.  321;  Hoadley  v. 
Day,  128  Fed.  302.  When  the  notes 
had  been  pledged  as  collateral. 

38  Superior  v.  Ripley,  138  U.  S. 
93,  34  L.  ed.  914. 

39  Sere  v.  Bitot,  6  Cranch,  332, 
336,  3  L.  ed.  240,  241. 

40  Glass  v.  Concordia  Farish  Fo- 
lice  Jury,  176  U.  S.  207,  44  L.  ed. 
436. 

4iUavies  v.  Lathrop,  12  Fed.  353. 
Nor  the  successor  of  a  receiver. 
Baige  v.  Rochester,  137  Fed.  663. 
But  see  U.  S.  Nat,  Bank  v.  McNair, 
56  Fed.  323;  Thompson  v.  Fool,  70 
Fed.  725. 


42  Sere  v.  Bitot,  6  Cranch,  332, 
336,  3  L.  ed.  240,  241;  Chappede- 
laine  v.  Dechenaux,  4  Cranch,  306, 
2  L.  ed.  629;  Childress  v.  Emory, 
8  Wheat.  642.  5  L.  ed.  705. 

43  Blant  Inv.  Co.  v.  Jacksonville, 
T.  &  K.  W.  Ry.  Co.,  152  U.  S.  71, 
76,  38  L.  ed.  358,  360.  But  see  Bor- 
tage  C.  W.  Co.  v.  Bortage,  102  Fed. 
769. 

44  New  Orleans  v.  Caines'  Adm'r. 
138  U.  S.  595,  606,  34  L.  ed.  1102. 
1106.  Contra,  Am.  Waterworks  & 
Guarantee  Co.  v.  Home  Water  Co., 
115  Fed.   171. 

45  American  Colortype  Co.  v.  Con- 
tinental Colortype  Co.,  188  U.  S. 
104,  47  L.  ed.  404. 

46  Weems  v.  George,  13  How.  190, 
14  L.  ed.  108. 


20  6 


OBIGINAL    JURISDICTION'. 


[§   63 


tiff's   assignor   of   the   contract    was    immaterial   to   the   juris- 
diction.4' 

A  Federal  court  is  without  jurisdiction  of  a  suit  on  a  cause 
of  action  existing'  in  favor  of  a  partnership,  brought  by  one 
partner  in  his  own  right  and  as  assignee  of  the  interest  of  his 
copartner,  unless  the  bill  shows  that  the  citizenship  of  the  as- 
signor  is  such  that  the  suit  might  have  been  maintained  in  that 
court  by  the  firm.48  It  has  been  held  that  the  restriction  does 
not  apply  when  the  only  reason  why  the  assignor  could  not 
have  sued  was  that  his  claim  was  less  in  value  than  the  juris- 
dictional amount.49  If  both  the  original  promissor  and  the 
plaintiff  have  a  citizenship  different  from  that  of  the  defend- 
ant, the  citizenship  of  a  mesne  assignee  is  immaterial.50  If 
the  requisite  diversity  of  citizenship  existed  between  the  or- 
iginal parties  to  a  note  or  contract,  and  a  suit  between  them 
might  have  been  maintained  thereon  in  a  Federal  court,  any 
subsequent  assignee  may  maintain  such  action,  provided  he  is 
also  a  resident  of  a  State  other  than  that  in  which  the  defend- 
ant resides ;  and  it  is  immaterial  that  an  intermediate  assignee 
was  a  resident  of  the  same  State.51  It  has  been  held:  that 
where  the  requisite  diversity  of  citizenship  existed  between  the 
assignor  and  defendant,  the  residence  of  the  assignor  was  im- 
material;52 that  where  at  the  time  of  the  commencement  of 
the  suit  the  assignor  might  have  sued  in  the  Federal  court,  but 
at  the  time  of  the  assignment  he  could  not,  if  the  citizenship 
of  the  assignee  and  the  defendant  are  diverse,  the  court  may 


47X«,ves  v.  Crawford,  133  Fed. 
796. 

48  Han  v.  Columbia  Southern  Ry. 
Co.,  117  Fed.  21.  54  C.  C.  A.  407, 
reversing  109  Fed.  499. 

49  Bernlieim  v.  Birnbaum.  .'JO  Fed. 
885,  887;  Botvden  v.  Burnham,  C. 
C.  A.,  59  Fed.  752;  Bergman  v.  In- 
man,  91  Fed.  293;  Chase  v.  Sheldon 
R.  M.  Co..  56  Fed.  625;  Hartford 
Fire  Ins.  Co.  v.  Frie  R.  Co.,  172  Fed. 
899.  See  also  Hammond  v.  Cleave- 
land,  2:5  Fed.  1.  But  see  Woodside 
v.   Vasey,  142   Fed.  617. 

50  Emsheimer  v.  New  Orleans,  116 
Fed.  893. 


51  Portage  City  Water  Co.  v.  Por- 
tage, 192  Fed.  769;  Bolles  v.  Lehigh 
Valley  R.  Co.,  127  Fed.  884 ;  Fair 
v.  Hobe-Peters  Land  Co.,  C.  C.  A.. 
188  Fed.  10. 

52  Stimson  v.  United  Wrapping 
Maeh.  Co.  et  al.,  156  Fed.  298.  See 
Dulles  v.  H.  D.  Crippen  Mfg.  (.0.. 
156  Fed.  706;  Ferguson  v.  Consoli- 
dated Rubber  Tire  Co.,  169  Fed. 
888;  Consolidated  Rubber  Tire  Co. 
v.  Ferguson,  C.  C.  A.,  183  Fed.  756, 
106  C.  C.  A.  330.  Contra,  Waterman 
v.  Chesapeake  &  Ohio  Ry.  Co.,  199 
Fed.  667. 


§  63] 


ASSIGNEES. 


207 


take  jurisdiction  in  a  proper  case;53  that  where  the  original 
owner  of  a  chose  in  action,  who  might  have  sued  thereon  in  a 
Federal  court,  assigned  the  same,  he  was  entitled  to  sue  in  such 
court  on  again  becoming  the  owner  by  a  reassignment  from  his 
assignee,  without  regard  to  the  citizenship  of  the  latter;64 
that  where  an  assignee  of  a  chose  in  action  is  entitled  to  sue 
thereon  alone  in  the  Federal  courts,  he  and  his  assi°iiees  may 
sue  there  together  as  if  no  assignment  had  been  made ; 55  that 
where  one  of  complainant's  contracts  is  within  the  jurisdiction 
of  a  court,  it  draws  to  the  court  jurisdiction  to  determine  the 
entire  controversy,  although  others  of  the  contracts,  as  to  which 
the  issues  are  the  same,  were  acquired  by  complainant  through 
assignments  from  persons  who  could  not  have  sued  therein.56 
The  fact  that  the  assignor  is  a  national  bank  does  not  give 
jurisdiction.57  The  statute  does  not  forbid  one  of  the  original 
contractors  from  suing  in  a  Federal  court  the  assignee  of  the 
other  party,  although  the  citizenship  of  the  plaintiff  is  the 
same  as  that  of  the  assignor.58  The  assignee  must  aver  in  his 
pleading   that  his   assignor  might  have   sued   in   the   Federal 


court. 


09 


53  Jones  v.  Shapero,  C.  C.  A.,  57 
Fed.  457;  Noyes  v.  Crawford,  133 
Fed.  7!Mi. 

54  Moore  Bros,  Class  Co.  v.  Dre- 
vet  Mfg.  Co.,  154  Fed.  737. 

55  Paige  et  al.  v.  Rochester,  137 
Fed.  663 ;  Independent  School  Dist. 
of  Sioux  City  v.  Hew,  111  Fed.  1, 
49  C.  C.  A.  198,  55  L.R.A.  364. 

56  Camp  v.  Peacock,  Hunt  &  West 
Co.,  C.  C.  A.,  129  Fed.  1005;  Howe 
&  Davidson  Co.  v.  Haugan,  140  Fed. 
182;  affirming  128  Fed.  1005. 

57Ceorge  v.  Wallace,  C.  C.  A.,  135 
Fed.  286. 

58  Brooks  v.  Laurent,  98  Vi-d.  647, 
39  C.  C.  A.  201. 

59  Parker  v.  Ormsby,  141  U.  S.  81, 
35  L.  ed.  054;  0.  s".  Nat.  Bank  v. 
McNair,  56  Fed.  323;  Kolze  v. 
Hoadley,  200  V.  S.  70.  50  I.,  ed. 
377;  .1.  .1.  McCaskill  Co.  v.  Dickson, 
C.  C.  A..  159  Fed.  704.  An  allega- 
tion   in    a    hill    filed    hv    an    assignee 


of  claims  against  a  Louisiana  cor- 
poration, that  the  assignors  are  and 
were  citizens  of  States  other  than 
Louisiana,  and  competent  as  such  to 
sue  the  defendant  in  the  Circuit 
Court,  if  no  assignment  had  been 
made,  was  held  to  be  insufficient  to 
confer  jurisdiction  on  the  Circuit 
Court  because  the  State  or  States 
of  which  the  assignors  were  citizens 
were  not  specifically  designated 
Benjamin  v.  New  Orleans,  C.  C.  A.. 
74  Fed.  417.  Where  it  appeared  in 
the  record  that  the  assignor  was 
domiciled  and  resided  in  a  State 
other  than  that  of  which  t lie  de 
fendant  was  a  citizen  and  no  ques- 
tion concerning  his  citizenship  was 
raised  in  the  court  of  first  instance, 
the  court  of  review  refused  to  dis- 
miss the  ease  for  want  of  jurisdic- 
tion. First  Nat.  Bank  of  Cain  mi. 
Texas  v.  Crowley.  C.  C  A..   183   Fed. 

r.78. 


0()S 


ORIGINAL    JURISDICTION. 


[§   64 


§  64.  Territorial  jurisdiction  of  the  District  Courts  of 
the  United  States.  There  is  a  District  Court  in  each 
judicial  district  of  the  United  States.1  A  District 
Court  cannot  serve  process  beyond  its  district,2  except  in  the 
following  cases :  "In  suits  of  a  local  nature,  where  the  defend- 
ant resides  in  a  different  district,  in  the  same  State,  from  that 
in  which  the  suit  is  brought,  the  plaintiff  may  have  original 
and  final  process  against  him,  directed  to  the  marshal  of  the 
district  in  which  he  resides."3  A  subpoena  ad  testificandum 
may  be  served  upon  a  witness  in  a  civil  case  anywhere 
within  the  district  and  beyond  the  same  within  one  hundred 
miles  of  the  place  of  trial,  and  in  a  criminal  case  in  any 
part  of  the  United  States.4  In  certain  cases,  when  the  prop- 
erty is  situated  within  the  jurisdiction,  the  court  may  authorize 
service  of  process  by  publication,  or  without  the  jurisdiction; 
but  then,  unless  there  is  a  general  appearance,  the  judgment 
has  no  effect,  except  upon  the  property  there  situated.5  When 
the  service  of  process  is  made  within  the  district,  or  the  de- 
fendant voluntarily  appears,  the  court  may  make  a  decree 
which  directs  the  performance  of,  or  abstention  from,  an  act, 
or  directs  a  transfer  of,  or  otherwise  affects  the  title  to,  prop- 
erty beyond  the  territorial  jurisdiction;6  or  grants  an  injunc- 
tion against  an  act  within  the  jurisdiction,  such  as  an  inter- 
ference with  the  flow  of  water,  which  injuriously  affects  lands 
beyond  it.7  Where,  in  order  to  obtain  the  relief  sought,  it  will 
be  necessary  for  the  court  to  take  possession,  by  its  officers,  of 
land  beyond  its  territorial  jurisdiction,  such  a  decree  will  not 


§  64.     I  Infra,  §  66. 

2  Toland  v.  Sprague,  12  Peters, 
300,  328,  9  L.  ed.  1093,  1104. 

3§  54,  36  St.  at  L.  1087;  copied 
from  U.  S.  R.  S.,  §  741,  4  Fed.  St. 
Ann.  555. 

*U.  S.  R.  S.,  §  876;  infra,  §§  342, 
523. 

5  Infra,  §  166. 

6  Arglasse  v.  Musehamp,  1  Vern. 
75;  Carron  I.  Co.  v.  Maclaren,  5  H. 
L,  C.  416:  Mullet  v.  Dows.  94  U.  S. 
444,  24  L.  ed.  207;  Dull  v.  Black- 
man.  169  U.  S.  243,  246,  42  L.  ed. 
733,  734:  Selover.  Bates  &  Co.  v. 
Walsh.  226  U.  S.  112,  57  L.  ed.  69; 


Wheeler  v.  McCormack,  4  Fish.  Pat. 
Cas.  433;  s.  c,  8  Blachf.  267;  Lynde 
v.  Columbus,  C.  &  I.  C.  Ry.  Co.,  57 
Fed.  R.  993,  996.  For  an  excellent 
review  of  the  authorities,  see  the 
learned  opinion  of  Davies,  J.,  in 
Gardner  v.  Ogden,  22  N.  Y.  327. 
See  also  Carpenter  v.  Strange,  141 
U.  S.  87.  35  L.  ed.  640. 

7  Morris  v.  Bean,  146  Fed.  423; 
Vacuum  Oil  Co.  v.  Eagle  Oil  Co., 
154  Fed.  867.  Contra.  Northern  In- 
diana R.  Co.  v.  Michigan  Cent.  R. 
Co.,  15  How.  Pr.  233;  affirming  5 
McLean,  444. 


§    64]       TERRITORIAL    JURISDICTION    OF   DISTRICT    COURTS.       209 

be  granted.8  Thus,  where  the  defendant  is  within  its  jurisdic- 
tion, it  may  decree  specific  performance  of  a  contract,9  or  the 
administration  of  a  trust,10  or  the  cancellation  of  a  convey- 
ance, n  which  affects  land  within  the  jurisdiction  ;  but  under  the 
former  practice  if  the  defendant  refused  to  obey  the  directions 
of  the  court,  the  judgment  had  no  force  elsewhere,  even  when  a 
State  statute  provided  that  the  order  directing  a  conveyance 
should  have  the  same  effect  as  if  the  conveyance  were  made  in 
obedience  thereto.12  A  recent,  rule  authorizes  the  court  to  ap- 
point, a  person  to  execute  a  mandatory  order,  injunction,  or  de- 
cree for  specific  performance,  and  provides  that  the  act,  when  so 
performed,  shall  have  like  effect  as  if  done  by  the  defendant.13 
Accordingly,  the  court  will  not  decree  a  partition  of  land  beyond 
the  jurisdiction,  since  no  commissioner  by  it  could  have  author- 
ity to  act  there,14  and  it  cannot  adjudge  that  a  deed  of  land  in  an- 
other State  is  void ; 15  nor  in  a  suit,  for  a  divorce  award  to  a  mar- 
ried woman  a  dower  right  in  land  elsewhere,  which  will  be  valid 
until  a  conveyance  thereof  has  been  executed  by  her  husband.16 


SMuller  v.  Dows,  94  U.  S.  444, 
449,  24  L.  ed.  207,  209;  Fall  v. 
Eastin,  215  U.  S.  1,  54  L.  ed.  65; 
affirming  Fall  v.  Fall,  75  Neb.  104, 
120,  113  N.  W.  175;  Macgregov  v. 
Macgregor,  9  Iowa,  65;  Glen  v.  Gib- 
son, 9  Barb.  (N.  Y.)  634;  Story's 
Eq.  Jur.,  §  1292;  2  Spenee,  8,  n. 
(d)  ;  Smith's  Eq.  30;  Bispham's  Eq. 
§  7.    . 

9Selover,  Bates  &  Co.  v.  Walsh, 
226  U.  S.  112,  57  L.  ed.  where  it 
was  held  that  specific  performance 
of  a  contract  made  in  one  State  for 
the  sale  of  land  in  another,  can  be 
decreed  by  tlie  courts  of  the  former 
State,  and  that  the  courts  of  the  lat- 
ter will  be  bound  to  give  effect  to 
the  judgment  thus  obtained;  West- 
ern Union  Tel.  Co.  v.  Pittsburg,  C, 
C.  &  St.  L.  Ry.  Co.,  137  Fed.  435; 
Iloblin  v.  Long,  GO  How.  Pr.  (N. 
Y.)    200. 

10  Memphis   Sav.   Bank  v.   Houch- 
ens,    C.    C.    A.,    115    Fed.    90,    108; 
Fed.  Prac.  Vol.  I— 14. 


affecting  land  situated  outside  the 
jurisdiction.  Dunlap  v.  Byers,  110 
Mich.  109  (a  decree  directing  the 
conveyance  of  land  upon  the  wind- 
ing up  of  a  corporation. 

H  Jones  v.  Byrne,  149  Fed.  457, 
469. 

12  Fall  v.  Eastin,  215  U.  S.  1,  54 
L.  ed.  65;  affirming  Fall  v.  Fall,  75 
Neb.  104,  120,  113  N.  W.  175.  Con- 
tra, Burnley  v.  Stevenson,  24  Ohio 
St.  474,  15  Am.  Rep.  621. 

13  Eq.  Rule  8.     See  §  441,  infra. 

14  Spenee,  8,  n.  (d);  Story's  Eq. 
Jur.,  §  1292;  Smith's  Eq.  30;  Bis- 
pham's Eq.  §  47. 

15  Carpenter  v.  Strange,  141  U.  S. 
87,  35  L.  ed.  640;  State  ex  rel.  Hunt 
v.  Grimm  (  S.  Ct.  Mo.,  June  1912) 
148  S.  W.  868.  where  the  deed  was 
within  the  jurisdiction,  but  it  had 
been  recorded  in  another  jurisdic- 
tion, where   the  land   was   situated. 

10  Fall  v.  Eastin.  215  U.  S.  1,  54 


210 


ORIGINAL    JURISDICTION. 


[§    64 


A  suit  to  abate  a  nuisance  existing  lu -yond  the  jurisdiction  can- 
not be  maintained.17  It  has  been  held  that  a  Federal  court  can 
maintain  an  action  for  injuries  caused  to  lands  in  another  State 
by  a  canal  within  its  jurisdiction.18  Ordinarily,  a  court  in 
equity  cannot  direct  a  sale  of  land  situated  in  another  State.19 
But  the  Judicial  Code  provides:  '-Any  suit  of  a  local  nature, 
at  law  or  in  equity,  where  the  land  or  other  subject-matter 
of  a  fixed  character  lies  partly  in  one  district  and  partly  in  an- 
other, within  the  same  State,  may  be  brought  in  the  district 
court  of  either  district;  and  the  court  in  which  it  is  brought  shall 
have  jurisdiction  to  hear  and  decide  it,  and  to  cause  mesne  or 
final  process  to  be  issued  and  executed,  as  fully  as  if  the  said 
subject-matter  were  wholly  within  the  district  for  which  such 
court  is  constituted/'  20  ''Where  in  any  suit  in  which  a  receiver 
shall  be  appointed  the  land  or  other  property  of  a  fixed  char- 
acter, the  subject  of  the  suit,  lies  within  different  States  in  the 
same  judicial  circuit,  the  receiver  so  appointed  shall,  upon  giv- 
ing bond  as  required  by  the  court,  immediately  be  vested  with 
full  jurisdiction  and  control  over  all  the  property,  the  subject 
of  the  suit,  lying  or  being  within  such  circuit;  subject,  however, 
to  the  disapproval  of  such  order,  within  thirty  days  thereafter, 
by  the  circuit  court  of  appeals  for  such  circuit,  or  by  a  circuit 
judge  thereof,  after  reasonable  notice  to  adverse  parties  and 
an  opportunity  to  be  heard  upon  the  motion  for  such  dis- 
approval; and  subject,  also,  to  the  filing  and  entering  in  the 
district  court  for  each  district  of  the  circuit  in  which  any  por- 
tion of  the  property  may  lie  or  be,  within  ten  days  thereafter, 
of  a  duly  certified  copy  of  the  bill  and  of  the  order  of  appoint- 
ment.    The      disapproval    of   such    appointment    within    such 


L.  ed.  65;  affirming  Fall  v.  Fall, 
7.->  Xeb.  104,  120,  113  N.  W.  175. 

17  Mississippi  &  M.  R.  R.  Co.  v. 
Ward,  2  Black,  485,  17  L.  ed.  311; 
Ladew  v.  Tennessee  Copper  Co.,  218 
U.  S.  357,  54  L.  ed.  10G0,  affirming 
170     Fed.    245. 

is  Rundle  v.  Delaware  &  R.  Canal, 
1  Wall.  Jr.  275  (Fed.  Cas.  Xo.  12,- 
139),  affi'd.  14  Howard,  80,  14  L. 
i'd.  :j :;.">. 

l9Lvnde  v.  Columbus,  C.  &  I.  C. 


Ry.  Co.,  57  Fed.  093:  Farmers'  L.  & 
Tr.  Co.  v.  Postal  Tel.  Co.,  55  Conn. 
334:  3  Am.  St.  Rep.  53.  11  Atl.  184: 
Carpenter  v.  Strange.  141  U.  S.  S7. 
100.  35  L.  ed.  640,  047:  Mercantile 
Tr.  Co.  v.  Kanawha  &  O.  Ry.  Co..  39 
Fed.  337:  Re  Anderson,  94  Fed. 
487:  York  County  Sav.  Bank  v.  Ab- 
bot, 139  Fed.  988. 

20  §  :,.-,.  36  st.  at  L.  1087:  copied 
from  U.  S.  R.  S.,  §  742,  4  Fed:  St. 
Ann.  555. 


§    65]  TERMS  OF  DISTRICT  COURTS.  211 

thirty  days;  or  the  failure  to  file  such  certified  copy  of  the  bill 
and  order  of  appointment  within  ten  days,  as  herein  required, 
shall  divest  such  receiver  of  jurisdiction  over  all  such  property 
except  that  portion  thereof  Lying  or  being  within  the  State  in 
which  the  suit  is  brought-  In  any  case  coming  within  the  provi- 
sions of  this  section,  in  which  a  reeewer  shall  he  appointed, 
process  may  issue  and  he  executed  within  any  district  of  the 
circuit  in  the  same  manner  and  to  the  same  extent  as  if  the 
property  were  wholly  within  the  same  district ;  hut  orders  affect- 
ing such  property  shall  be  entered  of  record  in  each  district  in 
which  the  property  affected  may  lie  or  he."21 

§  65.  Terms  of  the  District  Courts  of  the  United  States. 
In  general.     No  action,  suit,   proceeding,   or  process  in  any 
district  court  shall  abate  or  be  rendered  invalid  by  reason  of 
any  act  changing  the  time  of  holding  such  court,  hut  the  same 
shall  be  deemed  to  be  returnable  to,  pending;  and  triable  in  the 
terms  established  next  after  the  return  day  thereof.*'       "Dis- 
trict courts  shall  hold  monthly  adjournments  of  their  regular 
terms,   for  the  trial  of  criminal  causes,   when  their  business 
requires  it  to  be  done,  in  order  to  prevent  undue  expenses  and 
delays  in  such  rases/*2     Ordinarily,  when  one  term  begins,  the 
preceding  terms,  which  is  held  in  the  same  place,  ends;  unless  it 
was  the  evident  intention  of  the  statute  that  the  term  should  be 
concurrent  in  whole  or  in  part.3    -When  the  trial  or  hearing  of 
any  cause,  civil  or  criminal,  in  a  District  Court,  has  been  com- 
menced and  is  in  progress  before  a  jury  or  the  court,  it  shall 
not  be  stayed  or  discontinued  by  the  arrival  of  the  time  fixed 
by  law  for  another  session  of  said  curt;  hut  the  court  may  pro- 
ceed therein  and  bring  it  to  a  conclusion,  in  the  same  manner 
and  with  the  same  effect  as  if  another  stated  term  of  the  court 
had  not  intervened.*'4     A  special  term  of  a  court  may  he  held 
while  a  regular  term  is  in  session  at  another  place  in  the  same 
district,  where  there  are  two  judges,  each  haying  authority  to 
hold   court   in   said   district.5     The  term  of  a    District  Court6 


21  §  55,  36  St.  at  L.  1087.  4  •>"<!•  Code  §  8,  36  St.  at  L.  1087. 

§  65      lJud    Code  §  7.  36  St.  at          BEast  Tennessee  tron  &  Coal  Go. 

r   '  ]us7  v.   Wiggin,   <*.  G.   A..   68   Fed.   446; 

2.1„<1.  Code   §   in.  36  slat,  at  L.       U.  S.  v.  Louisville  &  X.  II.  »'<>..  177 


1087 


Fed.  7S0. 


3Kx   parte   Friday,   43    Fed.   ntii.  «  Alder  v.  Edenborn,  198  Fed.  928 


918. 


See  Guaranty  Tr.  Co.  v.  Metropoli- 


212 


ORIGINAL    JURISDICTION. 


[§  65 


may  be  extended  to  a  period  subsequent  to  the  opening  of  the 
succeeding  statutory  term,  for  the  purpose  of  a  particular  case. 
A  term  of  a  District  Court  may  be  adjourned  to,  and  its  regular 
continuous  session  may  be  resumed  as  a  part  of  the  same  term, 
upon  a  distant  day;  although  another  term  of  the  court  has  been 
held  during  the  adjournment  at  another  place.7  Unless  sooner 
adjourned,  a  term  of  a  court  of  the  United  States  may  extend 
from  the  beginning  thereof  to  the  opening  of  the  succeeding 
statutory  term.8  It  does  not  necessarily  end  at  the  opening 
of  a  term,  held  pursuant  to  a  statute,  in  another  place  in  the 
same  district.9  The  term  does  not  expire  until  the  limit  set 
by  law  for  its  continuance; 10  except  when  it  has  been  formally 
adjourned  without  a  day,11  or  when  there  has  been  no  attendance 
at  the  opening  of  the  term  and  no  instruction  to  the  marshal  to 
adjourn  for  a  subsequent  day.12  "If  the  judge  of  any  district 
court  is  unable  to  attend  at  the  commencement  of  any  regular, 
adjourned,  or  speeial  term,  or  any  time  during  such  term,  the 
court  may  be  adjourned  by  the  marshal,  or  clerk,  by  virtue  of 
a  written  order  directed  to  him  by  the  judge,  to  the  next  regular 
term,  or  to  any  earlier  day,  as  the  order  may  direct."  13  "When 
any  district  judge  is  prevented,  by  any  disability,  from  holding 
any  stated  or  appointed  term  of  his  district  court,  and  that  fact 
is  made  to  appear  by  the  certificate  of  the  clerk,  under  the 
seal  of  the  court,  to  any  circuit  judge  of  the  circuit  in  which 
the  district  lies,  or,  in  the  absence  of  all  the  circuit  judges,  to 
the  circuit  justice  of  the  circuit  in  which  the  district  lies,  any 
such  circuit  judge  or  justice  may,  if  in  his  judgment  the  pub- 
lic interests  so  require,  designate  and  appoint  the  judge  of  any 
other  district  in  the  same  circuit  to  hold  said  court,   and  to 


tan  St.  Ry.  Co.,  C.  C.  A.,  177  Fed. 
925. 

7  Florida  v.  Charlotte  Harbor 
Phosphate  Co.,  C.  C.  A.,  70  Fed.  883. 

8  Harlan  v.  McGourin,  218  U.  S. 
442,  450,  31  Sup.  Ct.  Rep.  44,  21 
Ann.  Cas.  849,  54  L.  ed.  1101,  1106, 
affirming  Ex  parte  Harlan,  180  Fed. 
lift;  Fast  Tennessee  Iron  &  Coal  Co. 
V.  Wiggin,  C.  C.  A.,  68  Fed.  446. 

9  [bid. 

10  Schofield  v.  Horse  Springs  Cat- 
tle Co..  65  Fed.  433. 


11  Harlan  v.  McGourin,  218  U.  S. 
442,  450,  54  L.  ed.  1101,  1106,  31 
Sup.  Ct.  Rep.  44.  21  Ann.  Cas.  849; 
affirming  Ex  parte  Harlan,  ISO  Fed. 
119. 

12  Ex  parte  Harlan,  180  Fed.  119; 
r.ff'd.  as  Harlan  v.  McGourin,  218  U. 
S.  442.  450,  54  L.  ed.  1101,  1106,  31 
Sup.  Ct.  Rep.  44,  21  Ann.  Cas.  849. 

WJud.  Code  §  12,  36  St.  at  L. 
1087. 


66]  ALABAMA.  213 


discharge  all  the  judicial  duties  of  the  judge  so  disabled,  during 
such  disability.  Whenever  it  shall  be  certified  by  any  such 
circuit  judge  or,  in  his  absence,  by  the  circuit  judge  of  the 
circuit  in  which  the  district  lies,  that  for  any  sufficient  reason 
it  is  impracticable  to  designate  and  appoint  a  judge  of  another 
district  within  the  circuit  to  perform  the  duties  of  such  disabled 
judge,  the  chief  justice  may,  if  in  his  judgment  the  public 
interests  as  require,  designate  and  appoint  the  judge  of  any  dis- 
trict in  another  circuit  to  hold  said  court  and  to  discharge  all 
the  judicial  duties  of  the  judge  so  disabled,  during  such  dis- 
ability. Such  appointment  shall  be  filed  in  the  clerk's  office, 
and  entered  on  the  minutes  of  the  said  district  court,  and  a  cer- 
tified copy  thereof,  under  the  seal  of  the  court,  shall  be  trans- 
mitted by  the  clerk  to  the  judge  so  designated  and  appointed."14 
After  the  term  has  been  regularly  opened  and  adjourned,  the 
failure  of  the  judge  to  appear  upon  the  adjourned  day  to 
appoint,  a  time  when  the  court  will  be  resumed,  does  not  forfeit 
the  right  to  resume  sittings  at  any  time.15 

§  66.  Territorial  jurisdiction  and  terms  of  the  different 
District  Courts  of  the  United  States.  The  Judicial  Code 
provides  :  "§  69.  The  United  States  are  divided  into  judicial 
districts  as  follows : 

"§  70.  The  State  of  Alabama  is  divided  into  three  judicial 
districts,  to  be  known  as  the  northern,  middle,  and  southern 
districts  of  Alabama.  The  northern  district  shall  include  the 
territory  embraced  on  the  first  day  of  July ,, nineteen  hundred 
and  ten,  in  the  counties  of  Cullman,  Jackson,  Lawrence,  Lime- 
stone, Madison,  and  Morgan,  which  shall  constitute  the  north- 
middle  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Colbert,  Frank- 
lin, and  Lauderdale,  which  shall  constitute  the  northwestern 
division  of  said  district;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Cheroffee,  De  Kalb, 
Etowah,  Marshall,  and  Saint  Clair,  which  shall  constitutes  the 
middle  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Blount,  Jefferson, 
and    Shelby,   which    shall    constitute   the   southern    division   of 

"Jud.   Code   §   13,   36   St.   at   L.       aff'd.  as  Harlan  v.  Gourin,  218  U.  S. 

1087.  442,    450,    54    L.   ed.    1101,    1100,    31 

15  Ex  parte  Harlan,  180  Fed.  119;       Sup.  Ct.  Rep.  44,  21  Ann.  Cas.  849. 


214  ORIGINAL    JURISDICTION.  [§    66 

said  district;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  comities  of  Walker,  Winston,   Marion,  Fayette, 
and  Lamar,  which  shall  "constitute  the  Jasper  division  of  said 
district;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Calhoun,   Clay,   Cleburne,   and  Talladega, 
which  shall  constitute  the  eastern  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Bibb,  Greene,  Pickens,  Sumter,  and  Tuscaloosa,  which 
shall  constitute  the  western  division  of  said  district.     Terms  of 
the  district  court   for   the  northern    division  shall  be  held   at 
Huntsville  on  the  first  Tuesday  in  April  and  the  second  Tues- 
day in  October;  for  the  northwestern  division,  at  Florence  on 
the  second   Tuesday  in  February   an  dthe   third   Tuesday  in 
October:  Provided,  That  suitable  rooms  and  accomodations  for 
holding  court  at  Florence  shall  be  furnished  free  of  expense  to 
the  Government;  for  the  middle  division,  at  Gladsden  on  the 
first  Tuesdays  in  February  and  August:     Provided,  That  suit- 
able rooms  and  accommodations  for  the  holding  court  at  Gads- 
den shall  be  furnished  free  of  expense  to  the  Government;  for 
the  southern  division,  at  Birmingham  on  the  first  Mondays  in 
March  and  September,  which  courts  shall  remain  in  session  for 
the  transaction  of  business  at  least  six  months  in  each  calendar 
vear;  for  the  Jasper  division,  at  Jasper  on  the  second  Tuesdays 
in  January  and  June:     Provided,  That  suitable  rooms  and  ac- 
commodations for  holding  court  at  Jasper  shall  be  furnished 
free  of  expense  to  the  Government ;  for  the  eastern  division,  at 
Anniston  on  the  first  Mondays  in  May  and  November;  and  for 
the  western  division,  at  Tuscaloosa  on  the  first  Tuesdays  in 
January  and  June.     The  clerk  of  the  court  for  the  northern 
district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  Anniston,  at  Florence,  at  Jasper,  and  at  Gadsden,  which 
shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  said   court.      The   district   judge   for   the   northern   district 
shall  reside  at  Birmingham.     The  middle  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  ten,  in  the  counties  of  Autauga,  Barbour,  Bullock, 
Butler,  Chilton;  Coosa,  Covington,  Crenshaw,  Elmore,  Lowndes, 
Montgomery    and    Pike,    which    shall    constitute    the    northern 
division  of  said  district  ;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Coffee,  Dale,  Geneva,  Henry. 


§     66]  ALASKA.  215 

and  Houston,  which  shall  constitute  the  southern  division  of  ' 
said  district  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Chambers,  Lee,  Macon,   Randolph, 

Russell  and  Tallapoosa,  which  shall  constitute  the  eastern 
division  of  said  middle  judicial  district.  Terms  of  the  dis- 
trict court  for  the  northern  division  shall  be  held  at  Mont- 
gomery on  the  first  Tuesdays  in  .May  and  December;  and  for 
the  eastern  division,  at  Opelika  on  the  first  Mondays  in  April 
and  iSTovember:  Provided,  however,  That  suitable  rooms  and 
accommodations  for  holding  court  at  Opelika  shall  be  furnished 
free  of  expense  to  the  Government:  and  for  the  southern  divi- 
sion, at  Dothan  on  the  firsl  Mondays  in  June  and  December. 
The  clerk  for  the  middle  district  shall  maintain  an  office,  in 
charge  of  himself  or  a  deputy,  at  Dothan.  and  shall  main- 
tain an  office  in  charge  of  himself  or  a  deputy,  at  Opelika, 
which  said  offices  at  Dotham  and  Opelika  shall  be  open 
at,  all  times  for  the  transaction  of  the  business  of  said  di- 
visions. The  southern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Baldwin.  Choctaw.  Clarke,  Conecuh, 
Escambia,  Mobile,  Monroe,  and  Washington,  which  shall  con- 
stitute the  southern  division  of  said  district;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Dallas, 
Hale,  Marengo,  Perry,  and  Wilcox,  which  shall  constitute  the 
northern  division  of  said  district.  Terms  of  the  district  court 
for  the  southern  division  shall  be  held  at  Mobile  on  the  fourth 
Mondays  in  May  and  November,  and  for  the  northern  division, 
at  Selma  on  the  first  Mondays  in  May  and  Xovomber."  ' 

In  the  Territory  of  Alaska  there  is  a  District  Court 
with  general  jurisdiction  in  civil,  criminal,  equity  and  ad- 
miralty   cases.      The    court   consists    of    three    divisions,    each 

§  GO.  136    St.    at    L.    1087,    am'd  Aug.  2.  1880,  ch.  842.  §  2,  24  St.  at 

Act  <>f    Feb'y   28,   1913.     Under   the  L.  213,  Coinp.  St.  1001.  p.  44!),  had 

Act    of    Feb'y    25,     1907,    eh.    1108,  co-ordinate    powers,    and    thai    each 

34  St.  at  L.  931;   Comp.  St.  Supp.  could  appoiirl   ami  remove  a  referee 

10D7.   p.    1ST.   which    authorized   the  in   bankruptcy    within   the   northern 

appointment   of  a   separate  district  district.     Birch   v.   Steele,  C.  0.  A.. 

judge   for    the   northern   district,    it  165    Fed.    ")77 :    affirming    Re   Steele, 

was  held  that  he  and  tin-  judge  pre-  l.'.c    Fed.    853,    and    overruling    /> 

viously    appointed    fur    the    middle  parte  Steele.  161    Fed.  886,  lti-2  Fed. 

ami  northern  districts,  under  Act  of  694. 


210  ORIGINAL    JURISDICTION.  [§    66 

of  which  is  hold  by  a  different  judge  with  separate  clerk, 
district  attorney  and  marshal.  The  jurisdiction  of  each  di- 
vision  extends  over  the  entire  territory;  but  the  court,  where 
an  action  is  pending,  may  change  the  place  of  trial  from  one 
place  to  another  in  the  same  or  another  division  for  local  pre- 
judice, for  the  convenience  of  witnesses,  disqualification  of  the 
division  judge  or  the  convenience  of  the  defendant,  and  in 
criminal  prosecutions  also  to  save  expense  to  the  United  States, 
where  the  defendant  will  not  be  prejudiced  thereby.  The  First 
Division  includes  all  that  portion  of  said  district  east  of  the 
«»ne  hundred  and  forty-first  degree  of  west  longitnude.  The 
Second  Division  of  said  district  consists  of  all  that,  territory 
lying  west,  northwest,  and  north  of  that  certain  line  described 
as  follows:  Commencing  at  the  mouth  of  the  Oolville  River,  on 
the  north  coast  of  the  district  of  Alaska;  thence  following  the 
( 'ol villi-  River  south  and  west  to  a  point  where  said  river  crosses 
the  one  hundred  and  fifty-fourth  meridian  line  the  second  time; 
thence  following:  the  one  hundred  and  fifty-fourth  meridian  line 
south  to  the  west  side  of  Tohtankella  Mountain  and  to  the  Yu- 
kon River;  thence  in  a  southeasterly  direction  to  the  western 
side  of  Mount  McKinley.;  thence  in  a  southwesterly  direction 
on  to  the  most  northern  point  of  Lake  Clark;  thence  along  the 
northwest  side  of  Lake  Clark  to  the  sixtieth  degree  of  long 
latitude;  thence  west  along  said  degree  of  latitude  to  Kuskok- 
wim  Bay.  This  division  shall  also  include  the  mainland  west 
of  said  bay  and  all  the  islands  north  of  the  tiftv-ninth  degree 
of  north  latitude.  The  Third  Division  consists  of  all  that  por- 
tion of  the  district  of  Alaska  not  included  within  the  first  or 
second  divisions  of  said  district  as  hereinbefore  described.  In 
Division  One  at  least  four  terms  of  court  are  annually  held,  two 
at  Juneau  and  two  at  Skaguay,  at  times  designated  by  the  judge 
in  January.  In  Division  tiro  at  least  one  term  a  year  is  held 
at  Saint  Michaels,  beginning  on  the  third  Monday  in  June. 
In  Division  Three  at  least  one  term  a  year  is  held  at  Eagle 
City,  beginning  on  the  first  Monday  of  June.  Special  terms 
may  also  be  held  upon  thirty  days'  notice  of  the  time  and 
place.8    The  courts  of  Alaska  have  no  power  to  punish  a  defend- 

2  31  St.  at  L.  322-320:  32  St.  at  Coqviitlam  v.  I".  S..  163  U.  S.  346.  41 
I..  385.  See  Ex  parte  Cooper,  143  r..  ed.  184;  Decker  v.  Williams,  73 
l'.    S.    472.    30  L.   ed.   232:    Steamer        Fed.   308;    infra,   §    07. 


§     (j(3]  ARIZONA  ;    ARKANSAS.  217 

ant  arrested  within  the  district,  charged  with  the  commission 
of  an  offense  on  hoard  an  American  vessel  on  the  high  seas; 
and  consequently,  such  an  offender  is  tried  in  the  First  District 
of  the  United  States,  to  which  he  is  brought  after  his  arrest  in 
Alaska.3  The  judge  of  each  division  is  required  to  divide  his 
division  into  precincts,  and  is  authorized  to  alter  the  same  and 
establish  new  precincts  from  time  to  time,  as  public  convenience 
may  require.  He  is  also  required  to  appoint  commissioners, 
who  are  ex-officio  probate  judges,  with  probate  and  certain  other 
jurisdiction  within  their  respective  precincts,  and  to  remove 
such  commissioners  at  pleasure.4  It  was  held:  that  an  order 
abolishing  a  precinct,  providing  that  the  territory  embraced 
thererin  should  become  a  part  of  another  precinct,  accepting 
the  resignation  of  the  commissioner  for  the  precinct  abolished, 
and  directing  him  to  "deliver  the  record  and  property  per- 
taining to  his  office"  to  the  commissioner  of  the  new  district, 
with  which  the  former  one  was  consolidated;  constituted  the 
commissioner  of  the  latter  precinct  the  successor  in  office  of  the 
former  commissioner  of  that  abolished,  and  transferred  to  him 
all  the  probate  cases  pending  in  the  former  precinct,  with  power 
to  proceed  in  the  same.5 

The  State  of  Arizona  constitutes  one  district,  with  one  dis- 
trict judge,  and  is  attached  to  the  ninth  circuit.  The  regular 
terms  of  the  District  Court  are  held  at  the  capital  of  that  Sate, 
Phoenix,  on  he  first  Mondays  in  April  and  October  of  each 
year.6 

"§  71.  The  State  of  Arkansas  is  divided  into  two  districts, 
to  be  known  as  the  eastern  and  western  districts  of  Arkansas 
The  western  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Sevier,  Howard,  Little  River,  Pike,  Hempstead,  Miller,  Lafay- 
ette, Columbia,  Nevada,  Ouachita,  Union,  and  Calhoun,  which 
shall  constitute  the  Texarhana  division  of  said  district ;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Polk,  Scott,  Yell,  Logan,  Sebastian,  Franklin,  Crawford, 
Washington,  Benton,  and  Johnson,  which  shall  constiute  the 
Fort  Smith  division  of  said  district;  also  the  territory  embraced 

3U.   S.   v.   Xewth,    149    Fed.    302.       Gold   Min.   Co..   C.   C.   A..    14S   Fed. 

•4  31  St.  at  L.  321.  808. 

5  Cheney     v.     Alaska     Treadwell  6  36  St.  at  L.  557,  576,  §  31. 


L'l.S  ORIGINAL    JURISDICTION.  [§    66 

on  the  date  last  mentioned  in  the  enmities  of  liaxter,  Boone, 
Carroll,  Madison,  Marion,  Newton,  and  Searcy,  which  shall 
constitute  the  Harrison  division  01  said  district.  Terms  of  the 
I  Mstriet  court  for  the  Texarhana  division  shall  be  held  at  Texar- 
kana  on  the  second  Mondays  in  May  and  November;  for  the 
Fort  Sin tl/i  Division,  at  Fort  Smith  on  the  second  Mondays  in 
January  and  June;  and  for  the  Harrison  division,  at  Harrison 
on  the  second  Mondays  in  April  and  October.  The  eastern 
district  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Lee,  Phillips, 
Saint  Francis,  Cross.  .Monroe,  and  Woodruif,  which  shall  con- 
stitute the  eastern  division  of  said  district;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Inde- 
pendence, Cleburne,  Stone,  Izard.  Sharp,  and  Jackson,  which 
shall  constitute  the  northern  division  of  said  district;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Crittenden,  Clay,  Craighead.  Greene,  Mississippi,  Poinsett, 
Fulton,  Randolph,  and  Lawrence,  which  shall  constitute  the 
Joneshoro  division  of  said  district;  and  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  .of  Arkansas, 
Ashley,  Bradley.  Chicot,  (lark,  Cleveland,  Conway,  Dallas, 
Desha.  Drew,  Faulkner.  Garland,  Grant,  Hot  Spring.  Jefferson, 
Lincoln.  Lonoke,  Montgomery,  Perry,  Pope,  Prairie,  Pulaski, 
Saline,  Van  Buren,  and  White,  which  shall  constitute  the 
western  division  of  said  district.  Terms  of  the  District  court 
for  the  eastern  division  shall  he  held  at  Helena  on  the  second 
Monday  in  March  and  the  first  Monday  in  October;  for  the 
northern  division,  at  Eatesville  on  the  fourth  Monday  in  May 
and  the  second  Monday  in  December;  for  the  Joneshoro  di- 
vision, at  Joneshoro  on  the  second  Mondays  in  May  and  Novem- 
ber; ami  for  the  western  division,  at  Little  Pock  on  the  first 
Monday  in  April  and  the  third  Monday  in  October.  The  clerk 
of  the  court  for  the  eastern  district  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  Little  Rock,  at  Helena,  at 
Jonesboro,  and  at  Batesville,  which  shall  he  kept  open  at  all 
times  for  the  transaction  of  the  business  of  the  court.  And  the 
clerk  of  the  court  for  the  ires/rrn  district  shall  maintain  an 
office  in  charge  of  himself  or  a  deputy  at  Fort  Smith,  at  Harri- 


§    66]  CALIFORNIA;    COLORADO.  219 

son,  and  at  Texarkana,  which  shall  be  kept  open  at  all  times 
for  the  transaction  of  the  business  of  the  court.7 

"§  72.  The  State  of  California  is  divided  into  two  districts, 
to  be  known  as  the  northern  and  southern  districts  of  Cali- 
fornia. The  southern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Fresno,  Inyo,  Kern,  Kings,  Madera,  Mariposa, 
Merced,  and  Tulare,  which  shall  constitute  the  northern  divi- 
sion of  said  district;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Imperial,  Los  Angeles,  Orange, 
Riverside,  San  Bernardino,  San  Diego,  San  Luis  Obispo, 
Santa  Barbara,  and  Ventura,  which  shall  constitute  the  south- 
ed division  of  said  district.  Terms  of  the  district  court  for  the 
northern  division  shall  be  held  at  Fresno  on  the  first  Monday 
in  May  and  the  second  Monday  in  November;  and  for  the 
southern  division,  at  Los  Angeles,  on  the  second  Monday  in 
January  and  the  second  Monday  in  July,  and  at  San  Diego  on 
the  second  Mondays  in  March  and  September.  The  northern 
district  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Alameda, 
Alpine,  Amador,  Butte,  Calaveras,  Colusa,  Contra  Costa,  Del 
Norte,  El  Dorado,  Glenn,  Humboldt,  Lake,  Lessen,  Marin, 
Mendocino,  Modoc,  Mono,  Monterey,  Napa,  Nevada,  Placer, 
Plumas,  Sacramento,  San  Benito,  San  Francisco,  San  Joaquin, 
San  Mateo,  Santa  Clara,  Santa  Cruz,  Shasta,  Sierra,  Siskiyou, 
Solano,  Sonoma,  Stanislaus,  Sutter,  Tehama,  Trinity,  Tuolum- 
ne, Yolo,  and  Yuba.  Terms  of  the  District  court  for  the  north- 
ern district  shall  be  held  at  San  Francisco  on  the  first  Monday 
in  March,  the  second  Monday  in  July,  and  the  first  Monday  in 
November ;  at  Sacramento  on  the  second  Monday  in  April ;  and 
at  Eureka  on  the  third  Monday  in  July. 

"§  73.  The  State  of  Colorado  shall  constitute  the  judicial 
district,  to  be  known  as  the  district  of  Colorado.  Terms  of 
the  District  court  shall  be  held  at  Denver  on  the  first  Tuesdays 

7  30  St.  at  L.  1087.     For  the  spe-  pany,  see  23  St.  at  L.  §  8,  p.  72;  23 

cial   jurisdiction   of   courts   held    in  St.  at  L.  §  8.  p.  75 ;  Briscoe  v.  South- 

the  western  district  over  controver-  era  Kan.  Ry.  Co.,  40  Fed.  273;  s.  C, 

sies  affecting  the  Gulf,  Colorado  &  144  U.  S.  133,  30  L.  ed.  377.     As  to 

Santa    Fe    Railroad    Company,    and  Indian   Territory,   see   25    St.   at   L. 

the  Southern  Kansas  Railway  Com-  78G;  Gowen  v.  Harley,  56  Fed.  973. 


220  ORIGINAL    JURISDICTION.  [§    66 

in  May  antl  November;   at  Pueblo  on   the  first  Tuesday  in 
April ;  and  at  Montrose  on  the  second  Tuesday  in  September. 

"§  74.  The  State  of  Connecticut  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  Connecticut.  Terms  of 
the  District  court  shall  be  held  at  New  Haven  on  the  fourth 
Tuesdays  in  February  and  September,  and  at  Hartford  on  the 
fourth  Tuesday  in  May  and  the  first  Tuesday  in  December. 

"§  75.  The  State  of  Delaware  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  Delaware.  Terms  of  the 
district  court  shall  be  held  at  Wilmington  on  the  second  Tues- 
days in  March,  June,  September,  and  December. 

"§  76.  The  State  of  Florida  is  divided  into  two  districts  to 
be  known  as  the  northern  and  southern  districts  of  Florida. 
The  southern  district  shall  icnlude  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Baker,  Bradford,  Brevard,  Citrus,  Clay,  Columbia,  Dade, 
De  Soto,  Duval,  Hamilton,  Hernando,  Hillsboro,  Lake,  Lee, 
Madison,  Manatee,  Marion,  Monroe,  Nassau,  Orange,  Osceola, 
Palm  Beach,  Pasco,  Polk,  Putnam,  Saint  John,  Sumter, 
Suwanee,  Same  Lucie,  and  Volusia.  Terms  of  the  district 
court  for  the  southern  district  shall  be  held  at  Ocala  on  the 
third  Monday  in  January;  at  Tampa  on  the  second  Monday  in 
February;  at  Key  West  on  the  first  Mondays  in  May  and  No- 
vember; at  Jacksonville  on  the  first  Monday  in  December;  at 
Fernandina  on  the  first  Monday  in  April;  and  at  Miami  on 
the  fourth  Monday  in  April.  The  district  court  for  the  south- 
ern district  shall  be  open  at  all  times  for  the  purpose  of  hearing 
and  deciding  causes  of  admiralty  and  maritime  jurisdiction. 
The  northern  district  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Alachua,  Calhoun,  Escambia,  Franklin,  Gadsden,  Holmes, 
Jackson,  Jefferson,  Lafayette,  Leon,  Levy,  Liberty,  Santa  Rosa, 
Taylor,  Wahulla,  Walton,  and  Washington.  Term  sof  the  Dis- 
trict court  for  the  northern  district  shall  be  held  at  Tallahassee 
on  the  second  Monday  in  January ;  at  Pensacola  on  the  first- 
Mondays  in  May  and  November;  at  Marianna  on  the  first  Mon- 
day in  April ;  and  at  Gainesville  on  the  second  Mondays  in 
June  and  December. 

"§  77.  The  State  of  Georgia  is  divided  into  two  districts  ,to 
be  known  as  the  northern   and  southern   districts  of  Georgia. 


§    66]  GEORGIA.  221 

The  northern  district  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Campbell,  Carroll,  Clayton,  Cobb,  Coweta,  Cherokee,  De- 
Kalb,  Douglas,  Dawson,  Fannin,  Fayette,  Fulton,  Forsyth, 
Gilmer,  Gwinnett,  Hall,  Henry,  Lumpkin,  Milton,  Xewton, 
Pickens,  Rockdale,  Spalding,  Towns,  and  Union,  which  shall 
constitute  the  northern  division  of  said  district;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of 
Banks,  Clarke,  Elbert,  Franklin,  Greene,  Habersham,  Hart, 
Jackson,  Morgan,  Madison,  Oglethorpe,  Oconee,  Rabun,  Steph- 
ens, Walton,  and  White,  which  shall  constitute  the  eastern  divi- 
sion of  said  district;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Chattahoochee,  Clay,  Early, 
Harris,  Heard,  Meriwether,  Marion,  Muscogee,  Quitman,  Ran- 
dolph, Schley,  Stewart,  Talbot,  Taylor,  Terrell,  Troup,  and 
Webster,  which  shall  constitute  the  western  division  of  said 
district;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Bartow,  Chattooga,  Catoosa,  Dade,  Floyd, 
Gordon,  Haralson,  Murray,  Paulding,  Polk,  Walker,  and  Whit- 
field, which  shall  constitute  the  northwestern  division  of  said 
district.  Terms  of  the  district  court  for  northern  division  of 
said  district  shall  be  held  at  Atlanta  on  the  second  Monday  in 
March  and  the  first  Monday  in  October;  for  the  eastern  did- 
sion,  at  Athens  on  the  second  Monday  in  April  and  the  first 
Monday  in  November  for  the  western  division,  at  Columbus  on 
the  first  Mondays  in  May  and  December;  and  for  the  north- 
western  division  at  Rome  on  the  third  Mondays  in  May  and 
"November.  The  clerk  of  the  court  for  the  northern  district 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 
Athens,  at  Columbus,  and  at  Rome,  which  shall  be  kept  open  at. 
all  times  for  the  transaction  of  the  business  of  the  court.  The 
Southern  district  shall  include  the  territory  embraced  on  the 
«aid  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Appling,  Bulloch,  Bryan,  Camden,  Chatham,  Emanuel,  Ef- 
fingham, Glynn,  Jeff  Davis,  Liberty,  Montgomery,  Mcintosh, 
Screven,  Tatnall,  Toombs,  and  Wayne,  which  shall  constitute 
the  eastern,  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Baldwin,  Bibb, 
Butts,  Crawford,  Dodge,  Dooly,  Hancock,  Houston,  Jasper, 
Jones,  Laurens,  Macon,  Monroe,  Pike,  Pulaski,  Putnam,  Sum- 


224  OKHilXAL    JURISDICTION.  [§    (ill 

nam,  Peoria,  Rock  Island,  Stark.  Tazewell.  Warren,  and  Wood- 
ford, which  shall  constitute  the  northern  division;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  comities  of 
Adams,     Bond,    Brown,    Calhoun,    Cass.     Christian,    Dewitt, 
Greene   Hancock,  Jersey,  Logan,  McLean,  Macon,  Macoupin, 
Madison,  Mason,  Menard,  Montgomery,  Morgan,  Pike.  Sanga- 
mon, Schuyler,  and  Scott,  which  shall  constitute  the  southern 
division.     Terms  of  the  district  court  for  the  northern  division 
shall  he  held  at,  Peoria  on  the  third  Mondays  in  April  and  Octo- 
her;  for  the  southern  division,  at  Springfield  on  the  first  Mon- 
days in  January  and  June,  and  at  Quincy  on  the  first  Mondays 
in  March  and  September,     The  clerk  of  the  court  for  the  south- 
ern district  shall  maintain  an  office  in  charge  of  himself  or  a 
deputy  at  Peoria,  at   Springfield,  and  at  Quincy.   which  shall 
he  kept  open  at  all  times  for  the  transaction  of  the  business  of 
the  court.     The  marshal  for  said  southern  district  shall  appoint 
at  least  one  deputy  residing  in  the  said  northern  division,  who 
shall  maintain  an  office  at  Peoria.     The  eastern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Alexander.  Champaign, 
Clark.  Clay,  Clinton,  Coles,  Crawford.  Cumberland,  Douglas, 
Edgar,  Edwards,  Effingham,  Fayette,  Ford,   Franklin,  Galla- 
tin,   Hamilton,  Hardin,   Iroquois,   Jackson,  Jasper,   Jefferson, 
Johnson.  Kankakee,  Lawrence,  arion,  Massac,  .Monroe,  .Moul- 
trie, Perry,  Piatt,  Pope,  Pulaski,  Randolph,  Richland,  Saint 
Clair.  Saline,  Shelby,  Union,  Vermilion,  Wabash,  Washington, 
Wayne,  White,  and  Williamson.     Terms  of  the  district  court 
for  the  eastern  district  shall  be  held  at  Danville  on   the  first 
Mondays    in    March    and    September;    at    Cairo    on    the    first 
Mondays  in  April  and  October;  and  at  East  St.  Louis  on  the 
Hrst  Mondays  in   May  and  November.     The  clerk  of  the  court 
for  the  eastern  district   shall   maintain   an  office   in   charge  of 
himself  or  a  deputy  at   Danville,  at  Cairo,  and  at  East  Saint 
Louis,  which  shall  be  kept  open  at  all  times  for  the  transaction 
of  the  business  of  the  court,  and  shall  there  keep  the  records, 
tiles,  and  documents  pertaining  to  the  court  at  that  place. 

"§  80.  The  State  of  Indiana  shall  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  Indiana.  Terms  of  the 
district  court  shall  be  held  at  Indianapolis  on  the  first  Tuesdays 
in  May  and  November;  at  New  Albany  on  the  first  Mondays  in 


§  66]  iowa.  225 

January  and  July;  at  Evansville  on  the  first  Mondays  in 
April  and  October;  at  Fort  Wayne  on  the  second  Tuesdays  in 
June  and  December;  and  at  Hammond  on  the  third  Tuesdays 
in  April  and  October.  The  clerk  of  the  court  shall  appoint 
four  deputy  clerks,  one  of  whom  shall  reside  and  keep  office  at 
New  Albany,  one  at  Evansville,  one  at  Fort  Wayne,  and  one  at 
Hammond.  Each  deputy  shall  keep  in  his  office  full  records 
of  all  actions  and  proceedings  of  the  district  court  held  at  that 
place.10 

"§  81.  The  State  of  loiva  is  divided  into  two  judicial  dis- 
tricts, to  be  known  as  the  northern,  and  southern  districts  of 
Iowa.  The  northern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Allamakee,  Dubuque,  Buchanan,  Clayton,  Delaware, 
Fayette,  Winneshiek,  Howard,  Chickasaw,  Bremer,  Black- 
hawk,  Floyd,  Mitchell,  and  Jackson,  which  shall  constitute  the 
eastern  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Jones,  Cedar,  Linn, 
Johnson,  Iowa,  Benton,  Tama,  Grundy,  and  Hardin,  which  shall 
constitute  the  Cedar  Rapids  division;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Emmet,  Palo  Alto, 
Pocahontas,  Calhoun,  Carroll,  Kossuth,  Humboldt,  Webster, 
Winnebago,  Hancock,  Wright,  Hamilton,  Worth,  Cerro  Gordo,- 
Franklin,  and  Butler,  which  shall  constitute  the  central  divi- 
sion; also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Dickinson,  Clay,  Buena  Vista,  Sac,  Osceola, 
O'Brien,  Cherokee,  Ida,  Sioux,  Plymouth,  Woodbury,  and 
Monona,  which  shall  constitute  the  the  western  division.  Terms 
of  the  district  court  for  the  eastern  division  shall  be  held  at 
Dubuque  on  the  fourth  Tuesday  in  April  and  the  first  Tuesday 
in  December,  and  at  Waterloo  on  the  second  Tuesdays  in  May 
and  September;  for  the  Cedar  Rapids  division,  at  Oedar  Rap- 
ids on  the  first  Tuesday  in  April  and  the  fourth  Tuesday  in 

10  36  St.  at  L.  1087.     A  court  sit-  der  the   Act   of  March  3,   1905,   ch. 

ting  in  one  division  has  jurisdiction  1427,  §§  2,  3,  23,  33  St.  at  L.  992, 

to  hear  and  determine  a  motion  for  997,  Comp.  St.  Supp.  1909,  pp.  123, 

a  new  trial  in  a  criminal  case  tried  130,  has  jurisdiction  to  try  offenses 

in  another  division.     Dwyer  v.  U.  S.,  committed  before  the  creation  of  his 

C.  C.   A.,   170  Fed.   160.     The  addi-  office    as    well    as    those    committed 

tional  district  judge,  appointed  for  subsequently.     Walsh  v.  U.  S..  C.  C. 

the  northern  district  of  Illinois  un-  A.,  174  Fed.  615. 
Fed.  Prac.  Vol.  I.— 15. 


226  ORIOIX.W.    JURISDICTION.  [§    66 

September;  for  the  central  division,  at  Fort  Dodge  on  the  sec- 
one  Tuesdays  in  June  and  November'*  and  for  the  western 
division,  at  Sibus  City  on  the  fourth  Tuesday  in  May  and  the 
third  Tuesday  in  October.  The  southern  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  ten,  in  the  counties  of  Louisa,  Henry,  Des  Moines, 
Lee.  and  Van  Buren,  which  shall  constitute  the  eastern  division 
of  said  district;  also  the  territory  embraced  on  the  date  last 
mentioned  hi  the  counties  of  Marshall,  Story,  Boone,  Greene, 
Guthrie,  Dallas,  Polk,  Jasper,  Poweshiek,  Marion,  Warren, 
and  Madison,  which  shall  constitute  the  central  division  of  said 
district;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Crawford,  Harrison,  Shelby,  Audu- 
bon, Cass,  Pottawattamie,  Mills,  and  Montgomery,  which  shall 
constitute  the  western  division  of  said  district;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties 
of  Scott,  Muscatine,  Washington,  and  Clinton,  which  shall 
constitute  the  Davenport  division  of  said  district;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Davis,  Appanoose,  Mahaska,  Keokuk,  Jef- 
ferson, Monroe,  and  Wapello,  which  shall  constitute 
the  Ottumwa  division  of  said  district.  Terms  of  the  district 
court  for  the  eastern  division  shall  be  held  at  Keokuk  on  the 
second  Tuesday  in  April  and  the  third  Tuesday  in  October;  for 
the  central  division,  at  Des  Moines  on  the  second  Tuesday  in 
May  and  the  third  Tuesday  in  November;  for  the  western  divi- 
sion, at  Council  Bluffs  on  the  second  Tuesday  in  March  and  the 
third  Tuesday  in  September;  for  the  southern  division,  at  Cres- 
ton  on  the  fourth  Tuesday  in  March  and  the  first  Tuesday  in 
November;  for  the  DaVenpori  division,  at  Davenport  on  the 
fourth  Tuesday  in  April  and  the  first  Tuesday  in  October;  and 
and  for  the  Ottuvnim  division,  at  Ottumwa  on  the  first  Mondav 
after  the  fourth  Tuesday  in  March,  and  the  first  Monday  after 
the  third  Tuesday  in  October.  The  clerk  of  the  court  for  said 
district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  Davenport  and  at  Ottumwa,  for  the  transaction  of  the  busi- 
ness of  said  divisions."  n 

Under  the  Act  of  June   1.    P.mio,12  it  was  provided  that  all 

"36  St.  at   L.  1087,  am'd.  Act  uf  12  §  5,  Ch.  501,  31   St.  at  L.  240, 

Mar.   3,    L913.  Comp.  St.   1901.  p.  3.33. 


§  ee] 


KANSAS?. 


227 


grand  and  petit  jurors  for  the  southern  district  should  ho  select- 
ed from  citizens  residing  therein.  It  was  held  that  jurors  drawn 
for  service  in  the  central  division  need  not.  reside  therein,  pro- 
vided they  reside  within  the  district.13 

"§   82.   The  State  of  Katoisas  shnll  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  Kansas.     It  is  divided  into 
three  divisions,  to  he  known  as  the  first,  second,  and  third  divi- 
sions of  the  district  of  Kansas.      The  first  division  shall   in- 
clude the  territory  embraced  on  the  first  dav  of  July,  nineteen 
hundred  and  ten.  in  the  counties  of  Atchison,  Brown,  Chase, 
Cheyenne,  Clay,  Cloud,  Decatur,  Dickinson,  Doniphan,  Doug- 
las, Ellis,  Franklin,  Geary,  Gove,  Graham,  Jackson,  Jefferson, 
Jewell,  Johnson.  Leavenworth,  Lincoln,  Logan,  Lyon,  Marion, 
Marshall;  Mitchell.  Morris,  Nemaha,  Norton,  Osage,  Osborne, 
Ottawa,    Phillips,    Pottawatomie,    Rawlins,    Republic,    Riley, 
Rooks.  Russell,   Saline,  Shawnee,  Sheridan,  Sherman,  Smith, 
Thomas,  Trego,  Wabaunsee.   Wallace.  Washington,  and  Wyan- 
dotte.   The  second  division  shall  include  the  territtory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Barber,  Barton, 
Butler,  Clark,  Comanche,  Cowley,  Edwards,  Ellsworth,  Finney. 
Ford,  Grant,  Gray,  Greeley,  Hamilton,  Harper,  Harvey,  Hodge- 
man,  Haskell,    Kingman,   Kiowa,   Kearny,   Lane,   McPhorson, 
Morton,  Meade.  Xess,  Pratt,  Pawnee,  Reno,  Rush,  Scott,  Sedg- 
wick, Stafford,  Stevens,  Seward,  Sumner,  Stanton,  and  Wich- 
ita.    The  third  division  shall  include  the  territory  embraced  on 
the  said  date  last  mentioned  in  the  counties  of  Allen,  Anderson, 
Bourbon,  Cherokee,  Coffey.  Chautauqua,  Crawford,  Elk,  Green- 
wood,  Labette,    Linn.    Miami,   Montgomery,    Neosho,    Wilson, 
and  Woodson.     Terms  of  the  district  court  for  the  first  division 
shall  be  held  at  Leavenworth  on  the  second  Monday  in  October ; 
at  Topcka  on  the  second  Monday  in  April;  at  Kansas  City  on 
the  second  Monday  in  January  and  the  first  Monday  in  October  ; 
and  at  Salina  on  the  second  Monday  in  May;  but  no  cause,  ac- 
tion, or  proceeding  shall  be  tried  or  considered  at  and  term  held 
at  Salina  unless  by  consent  of  all  the  parties  thereto,  or  by  order 
of  the  court  tor  cause.     Terms  of  the  district  court  for  the  sec- 
ond division  shall  he  held  at  Wichita  on  the  second   Mondays 
in  March  ami  September;  and  for  the  third  division,  at  Fort 

ISSpancer  v.  U.  S.,  C.  C.  A..   Kill       Fed.  502. 


228  ORIGINAL    JURISDICTION.  [§    66 

Scott  on  the  first  Monday  in  May  and  the  second  Monday  in 
November.  The  clerk  of  the  district  court  shall  appoint  two 
deputies,  one  of  whom  shall  reside  and  keep  his  office  at  Fort 
Scott,  and  the  other  at  Wichita;  and  the  marshal  shall  appoint 
a  deputy  who  shall  reside  and  keep  his  office  at  Fort  Scott.14 

"§  83.  The  State  of  Kentucky  is  divided  into  two  districts, 
to  be  known  as  the  eastern  and  western  districts  of  Kentucky: 
The  eastern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Carroll,  Trimble,  Henry,  Shelby,  Anderson,  Mercer,  Boyle, 
Gallatin,  Boone,  Kenton,  Campbell,  Pendleton,  Grant,  Owen, 
Franklin,  Bourbon,  Scott,  Woodford,  Fayette,  Jessamine,  Gar- 
rard, Madison,  Lincoln,  Rockcastle,  Pulaski,  Wayne,  Whitley, 
Bell,  Knox,  Harlan,  Laurel,  Clay,  Leslie,  Letcher,  Perry,Ows- 
ley,  Jackson,  Estill,  Lee,  Breathitt,  Knott,  Pike,  Floyd,  Mag- 
offin, Martin,  Johnson,  Lawrence,  Boyd,  Greenup,  Carter,  El- 
liott, Morgan,  Wolfe,  Powell,  Menifee,  Clark,  Montgomery, 
Bath,  Rowan,  Lewis,  Fleming,  Mason,  Bracken,  Robertson, 
Nicholas,  and  Harrison,  with  the  waters  thereof.  Terms  of  the 
district  court  for  the  eastern  district  shall  be  held  at  Frankfort 
on  the  second  Monday  in  March  and  the  fourth  Monday  in 
September;  at  Covington  on  the  first  Monday  in  April  and  the 
third  Monday  in  October;  at  Richmond  on  the  fourth  Monday 
in  April  and  the  second  Monday  in  November;  at  London  on 
the  second  Monday  in  May  and  the  fourth  Monday  in  Novem- 
ber ;  at  Catlettsburg  on  the  fourth  Monday  in  May  and  the  sec- 
ond Monday  in  December;  and  at  Jackson  on  the  first  Monday 
in  March  and  the  third  Monday  in  September:  Provide'd,  That 
suitable  rooms  and  accommodations  are  furnished  for  holding 
court  at  Jackson  free  of  expense  to  the  Government  until  such 
time  as  a  public  building  shall  be  erectted  there.  The  western 
district  shall  include  the  territory  embraced  on  the  first  day  of 
•I  ulv,  nineteen  hundred  and  ten,  in  the  counties  of  Oldham,  Jef- 
ferson, Spencer,  Bullitt,  Nelson,  Washington,  Marion,  Larue, 
Taylor,   Casey,   Green,    Adair,   Russell,    Clinton,    Cumberland, 

14  See    McGlasliern    v.    U.    S.,    71  pany,     and     the     Southern     Kansas 

Fed.    434.      For   special    jurisdiction  Railway  Company,  see  23  St.  at  L. 

of    the   courts   held    in    this   district  72,  75:  Briscoe  v.  Southern  Kan.  Ry. 

ever  controversies  affecting  the  Gulf.  Co.,  40  Fed.  273. 
Colorado  A  Santa  Fe  Railroad  Com- 


§    66]  LOUISIANA.  229 

Monroe,  Metcalf,  Allen,  Barren,  Simpson,  Logan,  Warren, 
Butler,  Hart,  Edmonson,  Brayson,  Hardin,  Meade,  Brecken- 
ridge,  Hancock,  Daviess,  Ohio,  McLean,  Muhlenberg,  Todd, 
Christian,  Trigg,  Lyon,  Caldwell,  Livingston,  Crittenden,  Hop- 
kins, Webster,  Henderson,  Union,  Marshall,  Calloway,  Mc- 
Cracken,  Graves,  Ballard,  Carlisle,  Hickman,  and  Fulton,  with 
the  waters  thereof.  Terms  of  the  district  court  for  the  western 
district  shall  be  held  at  Louisville  on  the  second  Mondays  in 
March  and  October;  at  Owensboro  on  the  first  Monday  in  May 
and  the  fourth  Monday  in  November;  at  Paducah  on  the  third 
Mondays  in  April  and  November;  and  at  Bowling  Green  on  the 
third  Monday  in  May  and  the  second  Monday  in  December. 
"The  clerk  of  the  court  for  the  eastern  district  shall  maintain 
an  office  in  charge  of  himself  or  a  deputy  at  Frankfort,  at  Cov- 
ington, at  Richmond,  at  London,  at  Catlettsburg,  and  at  Jack- 
son; and  the  clerk  for  the  western  district  shall  maintain  an  of- 
fice in  charge  of  himself  or  a  deputy  at  Louisville,  at  Owensboro, 
at  Paducah,  and  at  Bowling  Green,  each  of  which  offices  shall 
be  kept  open  at  all  times  for  the  transaction  of  the  business  of 
said  court.  The  clerks  of  the  courts  for  the  eastern  and  western 
districts,  upon  issuing  original  process  in  a  civil  action,  shall 
make  it  returnable  to  the  court  nearest  to  the  county  of  the 
residence  of  the  defendant,  or  of  that  defendant  whose  county  is 
nearest  to  a  court,  and  shall,  immediately  upon  payment  by  the 
plaintiff  of  his  fees  accrued,  send  the  papers  filed  to  the  clerk 
of  the  court  to  which  the  process  is  made  returnable ;  and  when- 
ever the  process  is  not  thus  made  returnable,  any  defendant  may, 
upon  motion,  on  or  before  the  calling  of  the  cause,  have  it  trans- 
ferred to  the  court  to  which  it  should  have  been  sent  had  the 
clerk  known  the  residence  of  the  defendant  when  the  action  was 
brought."15 

"§  84.  The  State  of  Louisiana  is  divided  into  two  judicial 
districts,  to  be  known  as  the  eastern  and  western  districts  of 
Louisiana.  The  eastern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  parishes  of  Assumption,  Iberia,  Jefferson,  Lafourche,  Or- 

16  36  St.  at  L.   1087.     Under  the  by  reason  of  the  commencement  of 

former  law,  31  St.  at  L.  781,  Comp.  intervening  terms  elsewhere.     U.   S. 

St.  1901,  p.  3G0.  it  was  held  that  a  v.  Louisville  &  N.  R.  Co.,  177  Fed. 

term  held  in  Louisville  did  not  lapse  780. 


230  ORIGINAL    JURISDICTION.  [§    66 

leans,  Plaquemines,  Saint  Bernard,  Saint  Charles.  Saint  James, 
Saint  John  the  Baptist,  Saint  Mary,  Saint  Tammany,  Tangi- 
pahoa, Terrebonne,  and  Washington*,  which  shall  constitute  the 
New  Orleans  division;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  parishes  of  Ascension,  East  Baton  Rouge, 
East  Feliciana,  Livingston,  Pointe  Coupee,  Saint  Helena.  West 
Baton  Rouge,  Iberville,  and  West  Feliciana,  which  shall  con- 
stitute the  Baton  Rouge  division  of  said  district.  Terms  of  the 
district  court  for  the  New  Orleans  division  shall  be  held  at 
New  Orleans  on  the  third  Mondays  in  February,  May,  and 
November;  and  for  the  Baton  Rouge  division,  at  Baton  Ronge 
on  the  second  Mondays  in  April  arid  November.  The  clerk  of 
the  court  for  the  eastern  district  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  Xew  Orleans  and  at  Baton 
Ronge  which  shall  be  kept  open  at  all  times  for  the  transaaction 
of  the  business  of  the  court.  The  western  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  .ten,  in  the  parishes  of  Saint  Landry,  Evangeline, 
Saint  Martin,  Lafayette,  and  Vermilion,  which  shall  constitute 
the  Opelousas  division  of  said  district;  also  the  territory  em- 
braced on  the  dast  last  mentioned  in  the  parishes  of  Rapides, 
Avoyelles,  Catahoula,  La  Salle,  Grant,  and  Winn,  which  shall 
constitute  the  Alexandria  division  of  said  district;  also  the  ter- 
ritory embraced  on  the  said  date  last  mentioned  in  the  parishes 
of  Caddo,  De  Soto,  Bossier.  Webster,  Claiborne,  Bienville,  Na- 
tchitoches, Sabine,  and  Red  River,  which  shall  constitute  the 
Shre  report  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  parishes  of  Ouachita,  Frank- 
lin, Richland,  M»rehouse,  East  Carroll,  West  Carroll,  Madison, 
Tensas,  Concordia.  Union.  Caldwell,  Jackson,  and  Lincoln, 
which  shall  constitute  the  Monroe  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  parishes 
of  Acadia.  Calcasieu,  Cameron,  and  Vernon,  which  shall  con- 
stitute the  Lake  Charles  division  of  said  district.  Terms  of  the 
district  court  for  the  Opelousas  division  shall  be  held  at  Opelous- 
as on  the  first  Mondays  in  January  ami  June;  for  the  Alexan- 
dria division,  at  Alexandria  on  the  fourth  Mondays  in  January 
and  June;  for  the  ShrevepoH  division,  at  Shreveport  on  the 
third  Mondays  in  February  and  October;  for  the  Monroe  din- 
sion,  at  Monroe  on  the  first  Mondays  in  April  and  October; 


§    66]  MAINE;    MARYLAND;   MASSACHUSETTS.  231 

and  for  the  Lake  Charles  division,  at  Lake  Charles  on  the  third 
Mondays  in  May  and  December.  The  clerk  of  the  court  for  the 
western  district  shall  maintain  an  office  in  charge  of  himself 
or  a  deputy  at  Opelousas,  at  Alexandria,  at  Shreveport,  at  Mon- 
roe, and  at  Lake  Charles,  which  shall-  be  kept  open  at  all  times 
for  the  transaction  of  the  business  of  the  court.'16  Prior  to  the 
Judicial  Code  it  was  held,  that  in  a  suit  in  admiralty  in  person- 
am, where  two  or  more  of  the  defendants  were  citizens  of  dif- 
ferent districts  of  the  State  of  Louisiana,  the  suit  might  be 
brought  in  either  district.17 

<k§  85.  The  State  of  Maine  shall  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  Maine.  Terms  of  the  dis- 
trict court  shall  be  held  at  Portland  on  the  first  Tuesday  in 
April,  on  the  third  Tuesday  in  September,  and  on  the  second 
Tuesday  in  February  and  December;  at  Bangor  on  the  first 
Tuesday  in  June;  and  at  Bath  on  the  first  Tuesday  in  Septem- 
ber.1^ 

"§  86.  The  State  of  Maryland  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  Maryland.  Terms  of  the 
district  court  shall  be  held  at  Baltimore  on  the  first  Tuesdays  in 
March,  June,  September,  and  December;  and  at  Cumberland 
on  the  second  Monday  in  May  amid  the  last  Monday  in  Septem- 
ber. The  clerk  of  the  court  shall  appoint  a  deputy  who  shall 
reside  and  maintain  an  office  at  Cumberland,  unless  the  clerk 
shall  himself  reside  there;  and  the  marshal  shall  also  appoint  a 
deputy,  who  shall  reside  and  maintain  an  office  at  Cumberland, 
unless  he  shall  himself  reside  there. 

"§  87.  The  State  of  Massachusetts  shall  constitute  one  judi- 
cial district,  to  be  known  as  the  district  of  Massachusetts.  Terms 
of  the  district  court  shall  be  held  at  Boston  on  the  third  Tuesday 
in  March,  the  fourth  Tuesday  in  June,  the  second  Tuesday  in 
September,  and  the  first  Tuesday  in  December ;  and  at  Spring- 
field, on  the  second  Tuesdays  in  May  and  December:  Prodded, 
That  suitable  rooms  and  accommodations  for  holding  court  at 
Springfield  shall  be  furnished  free  of  expense  to  the  Govern- 
ment until  such  time  as  a  Federal  building  shall  be  erected 
there  for  that  purpose.     The  marshal  and  the  elerk  for  said  dis- 

16.36  St.  at   L.  1087.  Ha  j„d.  Code,  :J6  St.  at  L.   1087, 

"Downs   v.   Wall,   C.   C.   A.,   176       as  am'd.  Act  of  Dec.  22,  1911.. 
Fed.  657. 


233  ORIGINAL    JURISDICTION.  [§    66 

trict  shall  each  appoint  at  least  one  deputy,  to  reside  in  Spring- 
field and  to  maintain  an  office  at  that  place. 

"§  88.  The  State  of  Michigan  is  divided  into  two  judicial 
districts,  to  be  known  as  the  eastern  and  western  districts  of 
Michigan.  The  eastern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Alcona,  Alpena,  Arenac,  Bay,  Cheboygan,  Clare, 
Crawford,  Genesee,  Gladwin,  Gratiot,  Huron,  Iosco,  Isabella, 
Midland,  Montmorency,  Ogemaw,  Oscoda,  Otsego,  Presque  Isle, 
Roscommon,  Saginaw,  Shiawassee,  and  Tuscolo,  which  shall 
constitute  the  northern  division;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Branch,  Calhoun, 
Clinton,  Hillsdale,  Ingham,  Jackson,  Lapeer,  Lenawee,  Living- 
ston, Macomb,  Monroe,  Oakland,  St  Clair,  Sanilac,  Washtenaw, 
and  Wayne,  which  shall  constitute  the  southern  division  of  said 
district.  Terms  of  the  district  court  for  the  southern  division 
shall  be  held  at  Detroit  on  the  first  Tuesdays  in  March,  June, 
and  November;  for  the  northern  division,  at  Bay  City  on  the 
first  Tuesdays  in  May  and  October,  and  at  Port  Huron  in  the 
discretion  of  the  judge  of  said  court  and  at  such  times  as  he 
shall  appoint  therefor.  There  shall  also  be  held  a  special  or  ad- 
journed term  of  the  district  court  at  Bay  City  for  the  hearing 
of  admiralty  causes,  beginning  in  the  month  of  February  in 
each  year.  The  western  district  shall  include  the  "territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Alger,  Baraga,  Chippewa,  Delta,  Dickinson, 
Gogebic,  Houghton,  Iron,  Keweenaw,  Luce,  Mackinac,  Mar- 
quette, Menominee,  Ontonagon,  and  Schoolcraft,  which  shall 
constitute  the  northern  division  ;  also  the  territory  embraced  on 
the  said  date  last  mentioned  in  the  counties  of  Allegan,  Antrim. 
Barry,  Benzie,  Berrien,  Cass,  Charlevoix,  Eaton,  Emmet, 
Grand  Traverse.  Ionia,  Kalamazoo,  Kalkaska,  Kent,  Lake,  Lee- 
lanau, Manistee,  Mason,  Mecosta,  Missaukee,  Montcalm,  Mus- 
kegon, Newaygo,  Oceana,  Osceola,  Ottawa,  St.  Joseph,  Van 
Buren.  and  Wexford,  which  shall  constitute  the  southern  divi- 
sion of  said  district.  Terms  of  the  district  court  for  the  south- 
ern division  shall  be  held  at  Grand  Rapids  on  the  first  Tuesdays 
in  March  and  October;  and  for  the  northern  division,  at  Mar- 
quette on  the  first  Tuesdays  in  May  and  September.  All  issues 
of  fact  shall  be  tried  at  the  terms  held  in  the  division  where 
such  suit  shall  be  commenced.     Actions  in  rem  and  admiralty 


§    66]  MINNESOTA.  233 

may  be  brought  in  whichever  division  of  the  eastern  district 
service  can  be  had  upon  the  res.  Nothing  herein  contained  shall 
prevent  the  district  court  of  the  western  division  from  regulat- 
ing, by  general  rule,  the  venue  of  transitory  actions  either  at 
law  Or  in  equity,  or  from  changing  the  same  for  cause.  The 
clerk  of  the  court  for  the  western  district  shall  reside  and  keep 
his  office  at  Grand  Rapids,  and  shall  also  appoint  a  deputy  clerk 
for  said  court  at  Marquette,  who  shall  reside  and  keep  his  office 
at  that  place.  The  marshal  for  said  western  district  shall  keep 
an  office  and  a  deputy  marshal  at  Marquette.  The  clerk  of  the 
court  for  the  eastern  district  shall  keep  his  office  at  the  city  of 
Detroit,  and  shall  appoint  a  deputy  for  the  court  held  at  Bay 
City,  who  shall  reside  and  keep  his  office  at  that  place.  The 
marshal  for  said  district  shall  keep  an  office  and  a  deputy  mar- 
shal at  Bay  City  and  mileage  on  service  of  process  in  said  north- 
ern division  shall  be  computed  from  Bay  City. 

"§  89.  The  State  of  Minnesota  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  Minnesota.  It  is  divided 
into  six  divisions,  to  be  known  as  the  first,  second,  third,  fourth, 
fifth,  and  sixth  divisions.  The  first  division  shall  include  the 
territorv  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Winona,  Wabasha,  Olmsted,  Dodge, 
Steele,  Mower,  Fillmore,  and  Houston.  The  second  division 
shall  include  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Freeborn,  Faribault,  Martin,  Jackson,  Nobles, 
Rock,  Pipestone,  Murray,  Cottonwood,  Watonwan,  Blue  Earth, 
Waseea,  Lesueur,  Nicollet,  Brown,  Redwood,  Lyon,  Yellow- 
Medicine,  Sibley,  and  Lac  qui  Parle.  The  third  division  shall 
include  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Chisago,  Washington,  Ramsey,  Dakota,  Goodhue, 
Rice,  and  Scott.  The  fourth  division  shall  include  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Henne- 
pin, Wright,  Meeker,  Kandiyohi,  Swift,  Chippewa,  Renville, 
McLeod,  Carver,  Anoka,  Sherburne,  and  Isanti.  The  fifth  divi- 
sion shall  include  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Cook,  Lake,  Saint  Louis.  Itasca,  Kooch- 
iching, Cass,  Crow  Wing,  Aitkin,  Carlton.  Pine,  Kanabec.  Millc 
Lacs.  Morrison,  and  Benton.  The  sixth  division  shall  include 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Stearns,  Pope,  Stevens,  Bigstone,  Traverse,  Grant,  Douglas, 
Todd,  Ottertail,  LJoseau,  Wilkin,  Clay.   Becker,  Wadena,   Nor- 


234  ORIGINAL    JURISDICTION.  [§    66 

man,  Polk,  Red  Lake,  Marshall,  Kittson,  Beltrami,  Clear- 
water, Mahnomen,  and  Ilnbbard.  Terms  of  the  district  court 
for  the  first  division  shall  be  held  at  Winona  on  the  third  Tues- 
days in  May  and  November;  for  the  second  division,  at  Man- 
kato  on  the  fourth  Tuesdays  in  April  and  October;  for  the 
third  division,  at  Saint  Paul  on  the  first  Tuesdays  in  June  and 
December;  for  the  fourth  division,  at  Minneapolis  on  the  first 
Tuesdays  in  April  and  October;  for  the  fifth  division,  at  Du- 
luth  on  the  second  Tuesdays  in  January  and  July;  and  for  the 
sixth  division,  at  Fergus  Falls  on  the  first  Tuesday  in  May  and 
second  Tuesday  in  November.  The  clerk  of  the  court  shall 
appoint  a  deputy  clerk  at  each  place  where  the  court  is  now  re- 
quired to  be  held  at  which  the  clerk  shall  not  himself  reside, 
who  shall  keep  his  office  and  reside  at  the  place  appointed  for 
the  holding  of  said  court.18 

"§  90.  The  State  of  Mississippi  is  divided  into  two  judicial 
districts,  to  be  known  as  the  northern  and  southern  districts 
of  Mississippi.  The  northern  district  shall  include  the  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Alcorn,  Attala,  Chickasaw,  Choctaw, 
Clay,  Itawamba,  Lee,  Lowndes,  Monroe,  Oktibbeha,  Pontotoc, 
Prentiss,  Tishomingo,  and  Winston,  which  shall  constitute  the 
eastern  division  of  said  district  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Benton,  Calhoun, 
Carroll,  De  Soto,  Grenada,  Lafayette,  Marshall,  Montgomery, 
Panola,  Tate,  Tippah,  Union,  AVebster,  and  Yalobusha,  which 
shall  constitute  the  western  division  of  said  district;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Bolivar,  Coahoma,  Leflore,  Quitman,  Sunflower,  Tallahatchie, 
and  Tunica,  which  shall  constitute  the  Delta  division  of 
said  district.  The  terms  of  the  district  court  for  the 
eastern  division  shall  be  held  at  Aberdeen  on  the  first  Mon- 
days in  April  and  October;  and  for  the  western  division,  at 
Oxford  on  the  first  Mondavs  in  June  and  December:  and  for 
the  Dcl/ii  division,  at  Clarksdale  on  the  fourth  Mondays  in 
January  and  July :  Provided,  That  suitable  rooms  and  ac- 
commodations for  holding  court  at  Clarksdale  are  fur- 
is  36  St.  nt  L.  10S7.  See  Clement  the  open  waters  of  the  Great  Lakes, 
v.  U.  S.,  C.  ('.  A..  1  in  Fed.  305.  For  see  The  Lindsay,  62  Fed.  851. 
the   power  to  execute  process   upon 


§  66]  missouki.  235 

nished  free  of  expense  to  the  United  States.  The 
southern  division  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Adams,  Amite,  Copiah,  Coving-ton,  Franklin, 
Kinds-,  Holmes,  Jefferson,  Jefferson  Davis,  Lawrence,  Lincoln, 
Madison,  Pike,  Rankin,  Simpson,  Smith,  Scott,  Wilkin- 
son, and  Yazoo,  which  shall  constitute  the  Jackson  division;  also 
the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Claiborne,  Issaquena,  Sharkey,  War- 
ren, and  Washington,  which  shall  constitute  the  western  divi- 
sion; also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Clarke,  Jones,  Jasper,  Kemper,  Lauderdale, 
Leake,  Neshoba,  Newton,  Noxubee,  and  Wayne,  which  shall 
constitute  the  eastern  division;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Forrest,  Greene,  Han- 
cock, Harrison,  Jackson,  Lamar,  Marion,  Perry,  and  Pearl 
Iviver,  which  shall  constitute  the  southern  division  of  said  dis- 
trict, Terms  of  the  district  court  for  the  Jackson  division  shall 
be  held  at  Jackson  on  the  first  Mondays  in  May  and  November ; 
for  the  western  division,  at  Vocksburg  on  the  first  Mondays  in 
January  and  July;  for  the  eastern  division,  at  Meridian  on  the 
second  Mondays  in  March  and  September ;  and  for  the  southern 
dicision,  at  Biloxi  on  the  third  Mondays  in  February  and  Au- 
gust The  clerk  of  the  court  for  each  district  shall  maintain  an 
em  division  of  said  district.  Terms  of  the  district  court  for  the 
office  in  charge  of  himself  or  a  deputy  at  each  place  in  his  dis- 
trict at  which  court  is  now  required  to  be  held  at  which  Jie  chall 
in  it  himself  reside,  which  shall  be  kept  open  at  all  times  for  the 
transaction  of  the  business  of  the  court.  The  marshal  for  each 
of  said  districts  shall  maintain  an  office  in  charge  of  himself  or 
a  deputy  at  ca"h  place  of  holding  court  in  his  district.18* 

"§  91.  The  State  of  Missouri  is  divided  into  two  judicial 
districts,  to  be  known  as  the  eastern  and  ivestem  districts  of 
.Missouri.  The  eastern  district  shall  include  the  territory  em- 
braced mi  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
city  of  Saint  Louis  and  the  counties  of  Audrian,  Crawford, 
Dent,  Franklin,  Gasconade,    Iron,  Jefferson,  Lincoln,  Maries, 

isa  jud.  Code,  36  St.  at  I..  1087, 
as  amVl.  Act  of  May  27,  1912,  ch. 
136,  37  St.  at  L.  118. 


234  ORIGINAL    JURISDICTION.  [§    66 

man,  Polk,  Red  Lake,  Marshall,  Kittson,  Beltrami,  Clear- 
water, Mahnomen,  and  Hubbard.  Terms  of  the  district  court 
for  the  first  division  shall  be  held  at  Winona  on  the  third  Tues- 
days in  May  and  November;  for  the  second  division,  at  Man- 
kato  on  the  fourth  Tuesdays  in  April  and  October;  for  the 
third  division,  at  Saint  Paul  on  the  first  Tuesdays  in  June  and 
December;  for  the  fourth  division,  at  Minneapolis  on  the  first 
Tuesdays  in  April  and  October;  for  the  fifth  division,  at.  Du- 
luth  on  the  second  Tuesdays  in  January  and  July;  and  for  the 
sixth  division,  at  Fergus  Falls  on  the  first  Tuesday  in  May  and 
second  Tuesday  in  November.  The  clerk  of  the  court  shall 
appoint  a  deputy  clerk  at  each  place  where  the  court  is  now  re- 
quired to  be  held  at  which  the  clerk  shall  not  himself  reside, 
who  shall  keep  his  office  and  reside  at  the  place  appointed  for 
the  holding  of  said  court.18 

"§  90.  The  State  of  Mississippi  is  divided  into  two  judicial 
districts,  to  be  known  as  the  northern  and  southern  districts 
of  Mississippi.  The  northern  district  shall  include  the  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Alcorn,  Attala,  Chickasaw,  Choctaw, 
Clay,  Itawamba,  Lee,  Lowndes,  Monroe,  Oktibbeha,  Pontotoc, 
Prentiss,  Tishomingo,  and  Winston,  which  shall  constitute  the 
eastern,  division  of  said  district  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Benton,  Calhoun, 
Carroll,  De  Soto,  Grenada,  Lafayette,  Marshall,  Montgomery, 
Panola,  Tate,  Tippah,  Union,  Webster,  and  Yalobusha,  which 
shall  constitute  the  western  division  of  said  district;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Bolivar,  Coahoma,  Leflore,  Quitman,  Sunflower,  Tallahatchie, 
and  Tunica,  which  shall  constitute  the  Delta  division  of 
said  district.  The  terms  of  the  district  court  for  the 
eastern  division  shall  be  held  at  Aberdeen  on  the  first  Mon- 
days in  April  and  October;  and  for  the  western  division,  at 
Oxford  on  the  first  Mondays  in  June  and  December;  and  for 
the  Dei  fa  division,  at  Clarksdale  on  the  fourth  Mondays  in 
January  and  July :  Provided,  That  suitable  rooms  and  ac- 
commodations  for  holding  court  at  Clarksdale  are  fur- 
ls 36  St.  at  T..  1087.  See  Clement  the  open  waters  of  the  Great  Lakes, 
v.  V.  S..  C.  C.  A..  140  Fed.  305.  For  see  The  Lindsay,  G2  Fed.  851. 
the   power   to  execute  process   upon 


§  66]  Missouri.  235 

hished  free  of  expense  to  the  United  States.  The 
southern  dins!  on  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Adams,  Amite,  Copiah,  Covington,  Franklin, 
Hinds',  Holmes,  Jefferson,  Jefferson  Davis,  Lawrence,  Lincoln, 
Madison,  Pike,  Rankin,  Simpson,  Smith,  Scott,  Wilkin- 
son, and  Yazoo,  which  shall  constitute  the  Jackson  division;  also 
the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Claiborne,  Issaquena,  Sharkey,  "War- 
ren, and  Washington,  which  shall  constitute  the  western  divi- 
sion ;  also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Clarke,  Jones,  Jasper,  Kemper,  Lauderdale, 
Leake,  Neshoba,  Newton,  Noxubee,  and  Wayne,  which  shall 
constitute  the  eastern  division;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Forrest,  Greene,  Han- 
cock, Harrison,  Jackson,  Lamar,  Marion,  Perry,  and  Pearl 
River,  which  shall  constitute  the  southern  division  of  said  dis- 
trict. Terms  of  the  district  court  for  the  Jackson  division  shall 
be  held  at  Jackson  on  the  first  Mondays  in  May  and  November ; 
for  the  ivestern  division,  at  Vocksburg  on  the  first  Mondays  in 
January  and  July;  for  the  eastern  division,  at  Meridian  on  the 
second  Mondays  in  March  and  September ;  and  for  the  soul  twin 
divisioj),  at  Biloxi  on  the  third  Mondays  in  February  and  Au- 
gust. The  clerk  of  the  court  for  each  district  shall  maintain  an 
ern  division  of  said  district.  Terms  of  the  district  court  for  the 
office  in  charge  of  himself  or  a  deputy  at  each  place  in  his  dis- 
trict at  which  court  is  now  required  to  be  held  at  which  he  :  hall 
ii( if  himself  reside,  which  shall  be  kept  open  at  all  times  for  the 
transaction  of  the  business  of  the  court.  The  marshal  for  each 
of  said  districts  shall  maintain  an  office  in  charge  of  himself  or 
a  deputy  at  eaeh  place  of  holding  court  in  his  district.18* 

"§  91.  The  State  of  Missouri  is  divided  into  two  judicial 
districts,  to  be  known  as  the  eastern  and  western  districts  of 
Missouri.  The  eastern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
city  of  Saint  Louis  and  the  counties  of  Audrian,  Crawford, 
Dent,  Franklin,  Gasconade,   lion,  Jefferson,  Lincoln,  Maries, 

l8a,h,<l.  (ode,  36  St.  at  L.  1087, 
as  am'd.  Act  of  May  27,  ]!)12,  eh. 
136,  37  St.  at  L.  118. 


236  ORIGINAL    JURISDICTION.  [§    66 

Montgomery,  Phelps,  Saint  Charles,  Saint  Francois,  Sainte 
Genevieve,  Saint  Louis,  Warren,  and  Washington,  which  shall 
constitute  the  eastern  division  of  said  district;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Adair. 
Chariton,  Clark,  Knox,  Lewis,  Linn,  Macon,  Marion,  Monroe, 
Pike,  Kalla,  Randolph,  Schuyler,  Scotland,  and  Shelby,  which 
shall  constitute  the  northern  division  of  said  district;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties 
of.  Bollinger,  Butler,  Cape  Girardeau,  Carter,  Dunklin,  Mad- 
ison, Mississippi,  New  Madrid,  Pemiscot,  Perry,  Reynolds, 
Ripley,  Scott,  Shannon,  Stoddard,  and  Wayne,  which  shall  con- 
stitute the  southeastern  division  of  said  district.  Terms  of  the 
district  court  for  the  eastern  division  shall  be  held  at  Saint 
Louis  on  the  third  Mondays  in  March  and  September,  and  at 
Rolla  on  the  second  Mondays  in  January  and  June:  Provided, 
That  suitable  rooms  and  accommodations  for  holding  court  at 
Rolla  are  furnished  free  of  expense  to  the  United  States;  for  the 
northern  division  at  Hannibal  on  the  fourth  Monday  in  May 
and  the  first  Monday  in  December;  and  for  the  southeastern 
division  at  Cape  Girardeau  on  the  second  Mondays  in  April 
and  October.  The  western  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Bates,  Caldwell,  Carroll,  Gass,  Clay,  Grundy, 
Llenry,  Jackson,  Johnson,  Lafayette,  Livingston,  Mercer,  Put- 
nam, Kay,  Saint  Clair,  Saline,  and  Sullivan,  which  shall  con- 
stitute the  western  division;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Barton,  Barry,  Jasper, 
Lawrence,  McDonald,  Newton,  Stone,  and  Vernon,  which  shall 
constitute  the  southwestern  division;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Andrew, 
Atchison,  Buchanan,  Clinton,  Daviess,  Dekalb,  Gentry,  Holt, 
Harrison,  Nodaway.  Platte,  and  Worth,  which  shall  constitute 
the  Saint  Joseph  division;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Benton,  Boone,  Callaway, 
Cooper,  Camden,  Cole,  Hickory,  Howard,  Miller,  Moniteau, 
Morgan,  Osage,  and  Pettis,  which  shall  constitute  the  ren- 
tral  division  ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Christian,  Cedar,  Dade,  Dallas, 
Douglas,  Greene,  Howell,  Leclede,  Oregon,  Ozark,  Polk,  Pulaski, 
Taney,  Texas.  Webster,  and  Wright,  which  shall  constitute  the 


§    66]  MONTANA.  237 

southern  division.  Terms  of  the  district  court  for  the  western 
division  shall  be  held  at  Kansas  City  on  the  fourth  Monday  in 
April  and  the  first  Monday  in  November,  and  at  Chillicothe  on 
the  fourth  Monday  in  May  and  the  first  Monday  in  December: 
Provided,  That  suitable  rooms  and  accommodations  for  holding 
court  at  Chillicothe  are  furnished  free  of  expense  to  the  United 
States;  for  the  southwestern  division,  at  Joplin  on  the  second 
Mondays  in  June  and  January;  for  the  Saint  Joseph  division, 
at  Saint  Joseph  on  the  first  Monday  in  March  and  the  third 
Monday  in  September;  for  the  central  division,  at  Jefferson 
City  on  the  third  Mondays  in  March  and  October;  and  for  the 
southern  division,  at  Spring-field  on  the  first  Mondays  in  April 
and  October.  The  clerk  of  the  court  at  Saint  Louis,  in  the  east- 
ern district,  shall  maintain  an  office  in  charge  of  himself  or  a 
deputy  at  Saint  Louis  and  Hannibal  and  at  such  other  places  of 
holding  court  in  said  district  as  may  be  deemed  necessary 
by  the  judge,  which  shall  be  kept  open  at  all  times 
for  the  transaction  of  the  business  of  the  court.  The 
clerk  of  the  court  for  the  western  district  shall  maintain  an 
office  in  charge  of  himself  or  a  deputy  at  Kansas  City,  at  Jef- 
ferson City,  at  Saint  Louis,  at  Chillicothe,  at  Joplin,  and  at 
Springfield,  which  shall  be  kept  open  at  all  times  for  the  trans- 
action of  the  business  of  the  court.  The  marshal  for  each  dis- 
trict shall  also  maintain  an  office  in  charge  of  himself  or  a  dep- 
uty at  each  place  at  which  court  is  now  held  in  his  district.1811 
"§  92.  The  State  of  Montana  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  Montana.  .Terms  of 
the  district  court  shall  be  held  at  Helena  on  the  first  Mondays 
in  April  and  November;  at  Butte  on  the  first  Tuesdays  in  Feb- 
ruary and  September;  at  Great  Falls  on  the  first  Mondays  in 
May  and  October;  at  Missoula  on  the  first  Mondays  in  January 
and  June;  and  at  Billings  on  the  first  Mondays  in  March  and 
August.  Causes,  civil  and  criminal,  may  be  transferred  by  the 
court  or  judge  thereof  from  Helena  to  Butte  or  from  Butte  to 
Helena,  or  from  Helena  or  Butte  to  Great  Falls,  or  from  Great 
Falls  to  Helena  or  Butte,  in  said  district,  when  the  convenience 
of  the  parties  or  the  ends  of  justice  would  be  promoted  by  the 

ISb.Tud.  Code,  36  St.  at  L.  1087, 
as  am'd.  Act  of  Dec.  22,  1911,  37 
St.  at  L.  51. 


238  ORIGINAL    JURISDICTION.  [§    66 

transfer;  and  any  interlocutory  order  may  be  made  by  the  court 
or  judge  thereof  in  either  place. 

"§  93.  The  State  of  Nebraska  shall  constitute  one  judicial 
district  to  be  known  as  the  district  of  Nebraska.  Said  district 
is  divided  into  eight  divisions.  The  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Douglas,  Sarpy,  Washington,  Dodge,  Colfax,  Platte,  Nance, 
Boone,  Wheeler,  Burt,  Thurston,  Dakota,  Cuming,  Cedar,  and 
Dixon,  shall  constitute  the  Omaha  division;  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Madison, 
Antelope,  Knox,  Pierce,  Stanton,  Wayne,  Holt,  Boyd,  Rock, 
Brown,  and  Keya  Paha,  shall  constitute  the  Norfolk  division; 
the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Cherry,  Sheridan,  Dawes,  Box  Butte,  and  Sioux,  shall 
constitute  the  Chadron  division;  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Hall,  Merrick,  Howard, 
Greeley,  Garfield,  Valley,  Sherman,  Buffalo,  Custer,  Loup, 
Blaine,  Thomas,  Hooker,  and  Grant,  shall  constitute  the  Grand 
Island  division;  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Lincoln,  Dawson,  Logan,  McPherson, 
Keith,  Deuel,  Garden,  Morrill,  Cheyenne,  Kimball,  Banner, 
and  Scott's  Bluff,  shall  constitute  the  North  Platte  division; 
the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Cass,  Otoe,  Johnson,  Nemaha,  Pawnee,  Richard- 
son, Gage,  Lancaster,  Saunders,  Butler,  Seward,  Saline,  Jeffer- 
son, Thayer,  Fillmore,  York,  Polk,  and  Hamilton,  shall  con- 
stitute the  Lincoln  division ;  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Clay,  Nuckolls,  AVebster, 
Adams,  Kearney,  Franklin,  Harlan,  and  Phelps,  shall  con- 
stitute the  Hastings  division;  and  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Gosper,  Furnas,  Red 
Willow,  Frontier,  Hayes.  Hitchcock,  Dundy,  Chase,  and  Per- 
kins, shall  constitute  the  McOook  division.  Terms  of  the  dis- 
trict court  for  the  Omaha  division  shall  be  held  at  Omaha  on 
the  first  Monday  in  April  and  the  fourth  Monday  in  September; 
for  the  Norfolk  division,  at  Norfolk  on  the  third  Monday  in 
September;  for  the  Chadvon  division,  at  Ch'adron  on  the  second 
.Monday  in  September;  for  the  Grand  Island  division,  at  Grand 
l.-land  on  the  second  Monday  in  January;  for  the  North  Platte 
division,  at  North  Platte  on  the  second  Monday  in  June;  for 


§    66]  NEVADA;    NEW    HAMPSHIRE;    NEW    JERSEY.  239 

the  Lincoln  division,  at  Lincoln  on  the  second  Monday  in  May 
and  the  first  Monday  in  October;  for  the  Eastings  division,  at 
Hastings  on  the  second  Monday  in  March;  and  for  the  McCook 
division  at  McCook  on  the  first  Monday  in  March:  Erovided, 
That  where  provision  is  made  herein  for  holding  court  at  places 
where  there  are  no  Federal  buildings,  a  suitable  room  in  which 
to  hold  court,  together  with  light  and  heat,  shall  be  provided 
by  the  city  or  county  where  such  court  is  held,  without  any 
expense  to  the  United  States.  The  clerk  of  the  court  shall  ap- 
point a  deputy  for  each  division  of  the  district  in  which  he 
does  not  himself  reside,  who  shall  keep  his  office  and  reside  at 
the  place  of  holding  court  in  the  division  for  which  he  is 
appointed. 

"§  9-i.  The  State  of  Nevada  shall  constitute  one  Judicial 
district,  to  be  known  as  the  district  of  Nevada.  Terms  of  the 
district  court  shall  be  held  at  Carson  City  on  the  first  Mondays 
in  February,  May,  and  October. 

,lS  95.  The  State  of  New  Hampshire  shall  constitute  one 
judicial  district,  to  be  known  as  the  district  of  New  Hamp- 
shire. Terms  of  the  district  court  shall  be  held  at  Portsmouth 
on  the  third  Tuesdays  in  March  and  September;  at  Concord 
on  the  third  Tuesdays  in  June  and  December ;  and  at  Little- 
ton on  the  third  Tuesday  in  August.180 

"§  00.  The  State  of  New  Jersey  shall  constitute  one  judi- 
cial district,  to  be  known  as  the  district  of  New  Jersey. 
Terms  of  the  District  Court  shall  be  held  at  Newark  on  the 
first  Tuesday  in  April  and  the  first  Tuesday  in  November,  and 
at  Trenton  on  the  third  Tuesday  in  January  and  the  second 
Tuesday  in  September  of  each  year.  The  clerk  of  the  court 
for  the  district  of  New  Jersey  shall  maintain  an  office  in  charge 
of  himself  or  a  deputy;  at  Newark  and  at  Trenton,  each  of  which 
offices  shall  be  kept  open  at  all  times  for  the  transaction  of 
the  business  of  the  court;  and  the  marshal  shall  also 
maintain  an  office,  in  charge  of  himself  or  a  deputy/;, 
at  Newark  and  at  Trenton,  each  of  which  offices  shall  be  kept 
open  at  all  times  for  the  transaction  of  the  business  of  the 
court.'"19  By  an  agreement  made  between  tin1  States  of  New- 
Jersey  and  New  York  on  September!  6,  1833,  of  which  Congress 

18c  jud.  Code.  36  St.  at  L.   10S7,  IB  36  St.  at  L.  1087.  am'd.  Act  of 

as  am'd.  Act  of  Aug.  23,  1912.  Feb'y.  14.  1913. 


240  ORIGINAL    JURISDICTION.  [§66 

approved  b;v  the  Act  of  June  28,  1834,20  the  boundary  line 
between  the  two  States  was  fixed  "from  a  point  in  the  middle 
of  Hudson  river,  opposite  the  point  on  the  western  shore  there- 
of, in  the  forty-one  degree  of  north  latitude,  as  heretofore  ascer- 
tained and  marked,  to  the  main  sea,  shall  be  the  middle  of  the 
said  river,  of  the  Bay  of  New  York,  of  the  waters  between 
Staten  Island  and  New  Jersev,  and  of  Earitan  Bav, 
to  the  main  sea."  The  boundary  of  the  respective  jurisdictions 
of  the  Federal  courts  sitting  in  Xew  York  and  New  Jersey  is 
the  same  as  that  fixed  in  this  agreement.21  The  District  Court 
of  the  United  States  for  the  District  of  New  Jersey  when  sitting 
in  admiralty  has  exclusive  jurisdiction  of  a  vessel  fastened 
to  the  Xew  Jersev  shore,  although  below  the  low  water  line.22 
It  was  so  held  when  a  tug  was  afloat  in  the  Kill  Yon  Kull,  be- 
tween Staten  Island  and  Xew  Jersey,  fastened  at  the  end  of  a 
dock  at  Bayonne,  about  three  hundred  feet  below  low  water  mark 
and  about  half  a  mile  from  the  entrance  of  the  Kill  Yon  Kull 
into  the  Bay  of  Xew  York ; 23  and  when  a  vessel  was  lying 
afloat  at  anchor  on  the  Hudson  River,  between  Jersey  City 
and  Manhattan  Island,  on  the  westerly  side  of  the  middle  of 
the  Hudson  River,  several  hundred  feet  east  of  the  Morris 
Street  Pier  of  Jersey  City;  and  when  made  fast  to  a  wharf  iii 
the  Morris  Canal  basin  in  jersey  City-24 

"The  State  of  Xeu:  Mexico  constitutes  one  district,  with  one 
District  judge.  It  is  attached  to  the  Eighth  Circuit.  The  regu- 
lar terms  of  the  district  court  are  held  at  the  capital  of  that  State, 
Santa  Fe,  on  the  first  Mondays  of  April  and  October  in  each 
year.25 

"§  97.  The  State  of  Xew  York  is  divided  into  four  judi- 
cial districts,  to  be  known  as  the  northern,  eastern,  southern, 
and  western  districts  of  Xew  York.  The  northern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Albany,  Broome, 
Cayuga,  Chenango,  Clinton.  Cortland,  Delaware.  Essex,  Frank- 
lin, Fulton,  Hamilton,  Herkimer,  Jefferson,    Lewis.   Madison, 

20  4  St.  at  L.  708.  22  Ibid. 

21  Re  Devoe  Mfg.   Co..   108   U.   S.  23  The  Sarah  E.  Kennedy,  25  Fed. 
401,  2  Sup.  Ct.  894,  27  L.  ed.  764:        569. 

s.    C,    14    Fed.    183;    The    Sarah    E.  24  The  Norma.  32  Fed.  411. 

Kennedy,  25  Fed.  569;   The  Norma.  25  30  St.  at  L.  5.37.  505,  §  13. 

32    Fed.    411. 


§    G6]  NEW  YORK.  241 

Montgomery,  Oneida,  Onondaga,  Oswego,  Otsego,  Rensselaer, 
Saint  Lawrence,  Saratoga,  Schenectady,  Schoharie,  Tioga, 
Tompkins,  Warren,  and  Washington,  with  the  waters  thereof. 
Terms  of  the  district  court  for  said  district  shall  be  held  at 
Albany  on  the  second  Tuesday  in  February ;  at  Utica  on  the 
first  Tuesday  in  December;  at  Binghamton  on  the  second  Tues- 
day in  June;  at  Auburn  on  the  first  Tuesday  in  October;  at 
Syracuse  on  the  first  Tuesday  in  April ;  and  in  the  discretion 
of  the  judge  of  the  court,  one  term  annually  at  such  time  and 
place  within  the  counties  of  Saratoga,  Oonodaga,  Saint  Law- 
rence, Clinton,  Jefferson,  Oswego,  and  Franklin,  as  he  may 
from  time  to  time  appoint.  Such  appointment  shall  be  made 
by  notice  of  at  least  twenty  days  published  in  a' newspaper 
published  at  the  place  where  said  court  is  to  be  held.  The  east- 
ern district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Rich- 
mond, Kings,  Queens,  Nassau,  and  Suffolk,  with  the  waters 
thereof.  Terms  of  the  district  court  for  said  district  shall  be 
held  at  Brooklyn  on  the  first  Wednesday  in  every  month.  The 
southern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Columbia,  Dutchess,  Greene,  New  York,  Orange,  Putnam, 
Rockland,  Sullivan,  Ulster,  and  Westchester,  with  the  waters 
thereof.  Terms  of  the  district  court  for  said  district  shall  be 
held  at  New  York  City  on  the  first  Tuesday  in  each  month. 
The  district  courts  of  the  southern  and  eastern  districts  shall 
have  concurrent  jurisdiction  over  the  waters  within  the  counties 
of  New  Yrork,  Kings,  Queens,  Nassau,  Richmond,  and  Suffolk. 
and  over  all  seizures  made  and  all  matters  done  in  such  waters; 
all  processes  or  orders  issued  within  cither  of  said  courts  or  by 
any  judge  thereof  shall  run  and  be  executed  in  any  part  of 
said  waters."'26  The  District  Court  of  the  Southern  District 
of  New  York,  in  admiralty,  has  no  jurisdiction  on  the  westerly 
side  of  the  middle  of  the  Hudson  River.27  "The  western  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Allegany. 

26  3G  St.  at  L.  1087.  s.    c,    14    Fed.    183;    The    Sarah    E. 

27  The  Norma,  32  Fed.  411.     See,       Kennedy.   25    Fed.    500:    and   supra 
also.  lie  Devoe  Mfg.  Co.,   108  U.  S.       under  Xew  Jersey. 

401,  2  Sup.  Ct.  804.  27   L.  ed.  7G4; 
Fed.  Pruc.  Vol.  1— 16. 


242  ORIGINAL    JURISDICTION.  [§66 

Cattaraugus,  Chautauqua,  Chemung,  Erie,  Genesee,  Livingston, 
Monuroe,    Livingston,    Monroe,    Niagara,    Ontario,    Orleans, 
Schuyler,  Seneca,  Steuben,  Wayne,  Wyoming,  and  Yates,  with 
the  waters  thereof.     Terms  of  the  district  court  for  said  dis- 
trict shall  be  held  at  Elmira  on  the  second  Tuesday  in  January ; 
at  Buffalo  on  the  second  Tuesdays  in  March  and  November; 
at  Rochester  on  the  second  Tuesday  in  May;  at  Jamestown  on 
the  second  Tuesday  in  July ;  at  Lockport  on  the  second  Tuesday 
in  October;  and  at  Canandaigua  on  the  second  Tuesday  in  Sep- 
tember.     The   regular  sessions   of   the   district  court  for   the 
western  district  for  the  hearing  of  motions  and  for  preceedings 
[sic']  in  bankruptcy  and  the  trial  of  causes  in  admrialty,  shall 
be  held  at  Buffalo  at  least  two  weeks  in  each  month  o  fthe  year, 
except  August,  unless  the  business  is  sooner  disposed  of.     The 
times  for  holding  the  same  and  such  other  special  sessions  as 
the  court  shall  deem  necessary  shall  be  fixed  by  rules  of  the 
court.     All  process  in  admiralty  causes  and  proceedings  shall 
be  made  returnable  at  Buffalo.     The  judge  of  any  district  in 
the  State  of  New  York  may  perform  the  duties  of  the  judge 
of  any  other  district  in  such  State  upon  the  request  of  any 
resident  judge  entered  in  the  minutes  of  his  court;  and  in  such 
cases  such  judge  shall  have  the  same  powers  as  are  vested  in  the 
resident  judge. 

"§  98.  The  State  of  North  Carolina  is  divided  into  two 
districts  to  be  known  as  the  eastern  and  western  districts  of 
North  Carolina.  The  eastern  district  shall  include  the  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  comities  of  Beaufort,  Bertie,  Bladen,  Brunswick, 
(  amden,  Chatham,  Cumberland,  Currituck,  Craven,  Colum- 
bus, Chowan,  Cartedet,  Dare,  Duplin,  Durham,  Edgecombe, 
Franklin,  Gates,  Granville,  Greene,  Halifax,  Harnett,  Hert- 
ford, Hyde,  Johnson,  Jones,  Lenoir,  Lee,  Martin,  Moore,  Nash, 
New  Hanover,  Northampton,  Onslow,  Pamlico,  Pasquotank, 
Pender,  Perquimans,  Person,  Pitt,  Robeson,  Richmond,  Samp- 
son, Scotland,  Tyrell,  Vance,  Wake,  Warren,  Washington, 
Wayne  and  Wilson.  Terms  of  the  district  court  for  the  eastern 
district  shall  be  held  at  Elizabeth  City  on  the  second  Mondays 
in  April  and   October;  at  Washington  on  the  third  Mondays 


28  36  St.  at  L.  1087. 


§    66]  NORTH  DAKOTA.  243 

in  April  and  October;  at  Newbern  on  the  fourth  Mondays  in 
April  and  October;  at  Wilmington  on  the  second  Monday  after 
the  fourth  Mondays  in  April  and  October ;  and  at  Ealeigh  on 
the  fourth  Monday  after  the  fourth  Mondays  in  April  and  Octo- 
ber:    Provided,   That  the  city  of  Washington  shall   provide 
and  furnish  at  its  own  expense  a  suitable  and  convenient  place 
for  holding  the  district  court  at  Washington  until  a  courthouse 
shall  be  constructed  by  the  United  States.     The  clerk  of  the 
court  for  the  eastern  district  shall  maintain  an  office  in  charge 
of  himself  or  a.  deputy  at  Raleigh,  at  Wilmington,  at  Newborn, 
at  Elizabeth   City,   and   at  Washington,  which   shall  be  kept 
open  at  all  times  for  the  transaction  of  the  business  of  the  court. 
The  western  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Alamance,  Alexander,  Ashe,  Alleghany,  Anson,  Buncombe, 
Burke,  Caswell,  Cabarrus,  Catawba,  Cleveland,  Caldwell,  Clay, 
Cherokee,  Davidson,  Davie,  Forsyth,   Guilford,   Gaston,  Gra- 
ham, Henderson,  Haywood,  Iredell,   Jackson,  Lincoln,  Mont- 
gomery, Mecklenburg,  Mitchell,  McDowell,   Madison,  Macon, 
Orange,    Polk,    Randolph,    Rockingham,    Rowan,    Rutherford, 
Stanly,   Stokes,   Surry,   Swain,   Transylvania,   Union,   Wilkes, 
Watauga,  Yadkin,  and  Yancey.     Terms  of  the  District  court 
for  the  western  district  shall  be  held  at  Greensboro  on  the  first 
Mondays  in  June  and  December  at  Statesville  on  the  third 
Mondays  in  April  and  October;   at   Salisbury  on  the  fourth 
Mondays  in  April  and  October,  at  Asheville  on  the  first  Mon- 
days in  May  and  November ;  at  Charlotte  on  the  first  Mondays 
in  April  and  October;  and  at  Wilkesboro  on  the  fourth  Mon- 
days in  May  and  November.     The  clerk  of  the  court  for  the 
western  district  shall  maintain  an  office  in  charge  of  himself 
«»r  a  deputy  at  Greensboro,  at  Asheville,  at  Statesville,  and  at 
Wilkesboro,  which  shall  be  kept  open  at  all  times  for  the  trans- 
action of  the  business  of  the  court. 

"§  99.  The  State  of  North  Dakota  shall  constitute  one  judi- 
cial district,  to  be  known  as  the  district  of  North  Dakota.  The 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Burleigh,  Stutsman,  Logan,  Mc- 
intosh, Emmons,  Kidder,  Foster,  Weels,  McLean,  Sheridan. 
Adams,  Bowman,  Dunn,  Hettinger,  Morton,  Stock,  and  Mc- 
Kenzie,      shall     constitute     the     southwestern     division     of 


24-i  OKIGINAL    JURISDICTION.  [§    <dQ 

said  district;  and  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Cass,  Richland,  Barnes, 
Dickey,  Sargent,  Lamoure,  Ransom,  Griggs,  and  Steele, 
shall  constitute  the  southeastern  division;  and  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the 
counties  of  Grand  Forks,  Traill  Walsh,  Pembina,  Cavalier, 
and  Nelson,  shall  constitute  the  northeastern  division;  and  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Ramsey,  Eddy,  Benson,  Towner,  Rolette.  Bottineau,  Pierce, 
and  McIIenry,  shall  constitute  the  northwestern  division;  and 
the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ies  of  Ward,  Williams,  Montraille,  Burk  and  Rendille, 
shall  constitute  the  western  division.  The  several  In- 
dian reservations  and  parts  thereof  within  said  State 
shall  constitute  a  part  of  the  several  divisions  with- 
in which  they  are  respectively  situated.  Terms  of  the  district 
court  for  the  southwestern  division  shall  be  held  at  Bismarck 
on  the  first  Tuesday  in  March;  for  the  soidheastern  division, 
at  Fargo  on  the  third  Tuesday  in  May;  for  the  northeastern 
division,  at  Grand  Forks  on  the  second  Tuesday  in  November; 
for  the  northwestern  division,  at  Devils  Lake  on  the  first  Tues- 
day in  July ;  and  for  the  western  division,  at  Minot  on  the  second 
Tuesday  in  October.  The  clerk  of  the  court  shall  maintain 
an  office  in  charge  of  himself  or  a  deputy  at  each  place  at  which 
court  is  now  held  in  his  district."  28a  This  part  of  the  statute 
becomes  inoperative  in  so  far  as  any  particular  reservation  is 
concerned  upon  the  extinguishment  of  the  Indian  title.29  A 
prosecution  for  felonous  homicide  alleged  to  have  been  commit- 
ted on  an  Indian  reservation  cannot  he  maintained  in  this  court 
where  the  indictment  does  not  allege  that -either  the  defendant 
or  the  person  killed  is  an  Indian.30 

"§  100.  The  State  of  Ohio  \<  divided  into  two  judicial  dis- 
tricts, to  be  known  as  the  northern  and  southern  districts  of 
Ohio.  The  northern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Ashland,  Ashtabula,  Cuyahoga,  Carroll,  Colum- 
biana, Crawford,  Geauga,  Holmes,  Lake,  Lorain,  Medina,  Ma- 
honing, Portage,  Richland,  Summit,  Stark,  Tuscarawas,  Trum- 

28a  mi  St.  at  L.  1087.  am'd  Act  of  30  ibid. 

Feb'y.  •">.   L912,  39  St.  at  L.  50. 

29  U.  S.  v.  La  Plant,  200  Fed.  92. 


§  66]  ohio.  245 

bull,  and  Wayne,  which  shall  constitute  the  eastern  division; 
also  the  territory  embraced  on  the  dale  last  mentioned  in  the 
counties  of  Auglaize,  Allen,  Defiance,  Erie,  Fulton,  Henry, 
Hancock,  Hardin,  Huron,  Lucas,  Mercer,  Marion,  Ottawa, 
Paulding,  Putnam,  Seneca,  Sandusky,  Van  Wert.  Williams, 
Wood,  and  Wyandotte,  which  shall  constitute  the  western  divi- 
sion of  said  district.  Terms  of  the  district  court  for  the  eastern 
division  shall  be  held  at  Cleveland  on  the  first  Tuesdays  in 
February,  April,  and  October,  and  at  Youngstown  on  the  first 
Tuesday  after  the  first  Monday  in  March  ;  and  for  the  western 
division,  at  Toledo  on  the  last  Tuesdays  in  April  and  October. 
Grand  and  petit  jurors  summoned  for  service  at  a  term  of  court 
to  be  held  at  Cleveland  may,  if  in  the  opinion  of  the  court  the 
public  convenience  so  requires,  be  directed  to  serve1  also  at  the 
term  then  being  held  or  authorized  to  be  held  at  Youngstown. 
Crimes  and  offenses  committed  in  the  eastern  division  shall  be 
cognizable  at  the  terms  held  at  Cleveland,  or  at  Youngstown,  as 
the  court  may  direct.  Any  suit  brought  in  the  eastern  division 
may,  in  the  discretion  of  the  court,  be  tried  at  the  term  held  at 
Youngstown.  The  southern  district  shall  include  the  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Adams,  Brown,  Butler.  Champaign, 
Clark,  Clermont,  Clinton,  Darke,  Greene,  Hamilton,  Highland, 
Lawrence,  Miami,  Montgomery,  Preble.  Scioto,  Shelby,  and 
Warren,  which  shall  constitute  the  western  division;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Athens,  Belmont,  Coshocton,  Delaware,  Fairfield,  Fayette, 
Franklin,  Gallia,  Guernsey,  Harrison,  Hocking,  Jackson,  Jef- 
ferson, Knox,  Licking,  Logan,  Madison,  Meigs,  Monroe,  Mor- 
gan, Morrow,  Muskingum.  Noble,  Perry,  Pickaway,  Pike,  Boss. 
ITnion,  Vinton,  and  Washington,  which  shall  constitute  the 
eastern  division  of  said  district.  Terms  of  the  district  court 
for  the  western  division  shall  be  held  at  Cincinnati  on  the  first 
Tuesdays  in  February,  April,  and  October;  and  for  the  eastern 
division,  at  Columbus  on  the  first  Tuesdays  in  June  and  Decem- 
ber: Provided,  That  terms  of  the  district  court  for  the  southern 
district  shall  be  held  at,  Dayton  on  the  firsl  Mondays  in  May  and 
November.  Prosecutions  for  crimes  and  offenses  committed  in 
any  part  of  said  district  shall  also  be  cognizable  at  the  terms  held 
at  Davton.     All  suits  which  may  be  brought  within  the  southern 


246  ORIGINAL    JURISDICTION.  [§    60 

district,  or  either  division  thereof,  may  be  instituted,  tried,  and 
determined  at  the  terms  held  at  Dayton. 

'*>*    101.   The  State  of  Oklahoma  is  divided  into  two  judieial 
districts,  to  be  known  as  the  eastern  and  the  western  districts  of 
Oklahoma;     The  eastern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Adair,  Atoka.  Bryan,  Craig,  Cherokee,  Creek,  Choc- 
taw, Coal,  Carter,  Delaware,  Garvin,  Grady,  Haskell,  Hughes, 
Johnston,  Jefferson,  Latimer,  LeFlore,  Love,  McClain,  Mayes, 
Muskogee,  Mcintosh,  MeCurtain,  Murray,  Marshall,  Xowata, 
Ottawa,  Okmulgee,  Ofuskee,  Pittsburg.  Pushmataha,  Pontotoc, 
Rogers,  Stephens,  Sequoyah,  Seminole,  Tulsa,  Washington,  and 
Wagoner.     Terms. of  the  district  court  for  the  eastern  district 
shall  be  held  at  Muskogee  on  the  first  Monday  in  January;  at 
Vinita  on  the  first  Monday  in  March;  at  Tulsa  on  the  first  Mon- 
day  in  April;  at  South  McAlester  on  the  first  Monday  in  June; 
at  Ardmore  on  the  first  Mondav  in  October;  and  at  Chickasha 
on  the  first  Monday  in   November  in  each  year.     The  western 
district  shall  include  the  territory  embraced  on  the  first  dav  of 
July,   nineteen  hundred   and  ten,   in   the   counties  of  Alfalfa, 
Beaver,  Beckham,  Blaine,  Caddo,  Canadian,  Cimarron,  Cleve- 
land. Comanche,  Custer,  Dewey,  Ellis,  Garfield,  Grant,  Greer. 
Harmon,  Harper,  Jackson,  Kay,  Kingfisher,  Kiowa,  Lincoln, 
Logan.  Majors,  Xoble,  Oklahoma,  Osage,  Pawnee,  Payne,  Potta- 
watomie, Roger  Mills,  Texas,  Tillman.  Washita,  Woods,  and 
Woodward.     Terms  of  the  district  court  for  the  western  district 
shall  be  held  at  Guthrie  on  the  first  Monday  in  January;   at 
Oklahoma  City  on  the  first  Monday  in  March;  at  Enid  on  the 
first  Monday  in  June;  at  Lawton  on  the  first  Monday  in  Sep- 
tember: and  at  Woodward  on  the  first  Monday  in  November: 
Provided,  That  suitable  rooms  and  accommodations  for  holding 
court  at  Woodward  are  furnished  free  of  expense  to  the  United 
States.     The  clerk  of  the  district  court  for  the  eastern  district 
shall  keep  his  office  at  Muskogee,  and  the  clerk  for  the  western 
district  at  Guthrie,  and  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  Oklahoma  City. 

"§  102.  The  State  of  Oregon  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  Oregon.  Terms  of  the 
district  court  shall  be  held  at  Portland  on  the  first  Mondays 
in    March.   July,    and    November;   at   Pendleton   on    the   first 


§    OG]  PENNSYLVANIA.  247 

Tuesday  in  April  •  and  at  Med  ford  on  the  first  Tuesday  in  Octo- 
ber. The  marshal  and  the  clerk  for  said  district  shall  each 
appoint,  in  the  manner  provided  by  law,  at  least  one  deputy 
at  Pendleton  and  one  at  Medford,  who  shall  reside  and  main- 
tain an  office  at  each  of  said  places."31  The  State  courts  of 
Oregon  have  ''jurisdiction  in  civil  and  criminal  cases  upon  the 
Columbia  Eiver  and  Snake  River,  concurrently  with  States  and 
Territories  of  which  those  rivers  form  a  boundary  in  common 
with  this  State."32  The  District  Court  of  Oregon  has  the  same 
territorial  jurisdiction.33  This  concurrent  jurisdiction  does 
not  extend  to  permanent  structures  attached  to  the  river-bed 
within  the  boundary  of  the  other  State.34  It  has  been  held 
that  the  District  Court  of  Washington  has  concurrent  juris- 
diction over  floating  structures  used  in  connection  with  fish- 
nets in  the  river,  although  anchored  by  means  of  weights,35  and 
that  the  District  Court  of  Oregon  has  jurisidction  in  admiralty 
over  a  vessel  moored  at  a  wharf  on  the  Washington  shore.86 

"§  103.  The  State  of  Pennsylvania  is  divided  into  three  ju- 
dicial districts,  to  be  known  as  the  eastern,  middle,  and  west- 
ern districts  of  Pennsylvania.  The  eastern  district  shall  in- 
clude the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Berks,  Bucks,  Chester,  Dela- 
ware, Lancaster,  Lehigh,  Montgomery,  Northampton,  Phila- 
delphia, and  Schuylkill.  Terms  of  the  district  court  shall  be 
held  at  Philadelphia  on  the  second  Mondays  in  March  and  June, 
the  third  Monday  in  September,  and  the  second  Monday  in 
December,  each  term  to  continue  until  the  succeeding  term  be- 
gins. The  middle  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  coun- 
ties of  Adams,  Bradford,  Cameron,  Carlton,  (.'enter,  Clinton, 
Columbia,  Cumberland,  Dauphin,  Franklin,  Fulton,  Hunting- 
ton, Juniata,  Lackawanna,  Lebanon,  Luzerne,  Lycoming,  Mif- 
flin, Monroe,  Montour,  Northumberland,  Perry,  Pike,  Potter, 

31  3G  St.  at  L.  1087.  34  Columbia  River  Packers'  Ass'n. 

32  Organic  Act  of  Feb'y.  14,  1859,  v.  McGowan,  172  Fed.  991. 
ch.  33.  11  St.  at  L.  383.  35  ibid. 

33  Nielsen  v.  Oregon.  212  U.  S.  36  The  Annie  M.  Small.  2  Sawyer 
315,  31(3,  29  Sup.  C't.  383,  53  L.  ed.  220.  Fed.  Cas.  No.  423.  See.  also, 
528;  Columbia  River  Packers' Ass'n.  State  v.  Mullen.  35  Iowa,  199. 

v.  McGowan,  172  Fed.  991. 


2-18  ORIGINAL    JURISDICTION.  [§    6G 

Snyder,  Sullivan,  Susquehanna,  Tioga,  Union,  Wayne,  Wyom- 
ing, and  York.  Terms  of  the  District  court  shall  be  held  at 
Scranton  on  the  second  Monday  in  March  and  the  third  Mon- 
day in  October;  at  Harrisburg  on  the  first  Mondays  in  May  and 
December;  and  at  Williamsport  on  the  first  Monday  in 
June.  The  clerk  of  the  court  for  the  middle  district 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  Har- 
risburg and  civil  suits  instituted  at  that  place  shall  be  tried 
there,  if  either  party  resides  nearest  that  place  of  holding  court, 
unless  by  consent  of  parties  thay  are  removed  to  another  place 
for  trial.  The  western  district  shall  include  the  territoory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Allegheny,  Armstrong,  Beaver,  Bedford,  Blair, 
Butler,  Cambria,  Clarion,  Clearfield,  Crawford,  Elk,  Erie, 
Fayette,  Forest,  Greene,  Indiana,  Jefferson,  Lawrence,  Mc- 
Kean,  Mercer,  Somerset,  Venango,  Warren,  Washington,  and 
Westmoreland.  Terms  of  the  district  court  shall  be  held  at 
Pittsburg  on  the  first  Monday  in  May  and  the  third  Monday 
in  October ;  and  at  Erie  on  the  third  Monday  in  July  and  the 
second  Monday  in  January." 37 

In  Porto  Rico  there  is  one  district.  Regular- terms  of  the 
court  are  held  at  San  Juan  beginning  on  the  second  Mondays 
of  April  and  October,  and  also  at  Ponce  on  the  second  Monday 
in  January  in  each  year,  and  special  terms  are  also  held  at  May- 
aguez  at  such  other  stated  times  as  the  district  judge  deems  ex- 
pedient.38 At  the  special  terms  held  at  Mayaguez,  jury  cases 
may  be  tried;  and  section  670  of  the  Revised  Statutes  of  the 
United  States  does  not  apply  to  such  terms  of  the  District  Court 
oi  Porto  Rico.39 

"§  104.  The  State  of  Rhode  Island  shall  constitute  one  judi- 
cial district,  to  be  known  as  the  district  of  Rhode  Island.  Terms 
of  the  district  court  shall  be  held  at  Providence  on  the  fourth 
Tuesday    in    May    and    the    Third    Tuesday    in    Xovember.39a 

"§  105.  The  State  of  South  Carolina  is  divided  into  two  dis- 
tricts, to  be  known  as  the  eastern  and  western  districts  of  South 

37  St.  at  L.  1087,  am'd.  Act  of  39a  jud.  Code,  36  St.  at  L.  1087, 
Mar.  3,    1913.  as  am'd.  Act  of  Feb'y.  1,  1912. 

38  31    St.   at   L.  84.  85.  as  am'd.  Act  of  Feb'y  1,  1912.     See 

39  Am.    Railroad    Co.    v.    Castro,  §  70,  infra. 
204  U.  S.  453,  51  L.  ed.  564. 


§    66]  SOUTH  DAKOTA.  249 

Carolina.  The  western  district  .shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Abbeville,  Anderson,  Cherokee,  Chester,  Edge- 
field, Fairfield,  Greenville,  Greenwood,  Lancaster,  Laurens, 
Newberry,  Oconee,  Pickens,  Saluda,  Spartanburg,  Union,  and 
York.  Terms  of  the  District  court  for  the  western  district  shall 
be  held  at  Greenville  on  the  third  Tuesdays  in  April  and  Octo- 
ber. The  eastern  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  coun- 
ties of  Aiken,  Bamberg,  Barnwell,  Beaufort,  Berkeley,  Cal- 
houn, Charleston,  Chesterfield,  Clarendon,  Colleton,  Darlington, 
Dillon,  Dorchester,  Florence,  Georgetown,  Hampton,  Horry, 
Kershaw,  Lee,  Lexington,  Marion,  Marlboro,  Orangeburg,  Rich- 
land, Sumter,  and  Williamsburg.  Terms  of  the  District  court 
for  the  eastern  district  shall  be  held  at  Charleston  on  the  first 
Tuesdays  in  June  and  December;  at  Columbia  on  the  third 
Tuesday  in  January  and  the  first  Tuesday  in  November,  the 
latter  term  to  be  solely  for  the  trial  of  civil  cases;  and  at  Flor- 
ence on  the  first  Tuesday  in 'March.  The  offices 'of  the  clerk  of 
the  district  court  shall  be  at  Greenville,  and  at  Charleston;  and 
the  clerk  shall  reside  in  one  of  said  cities  and  have  a  deputy 
in  the  other.39b 

"§  106.  The  State  of  South  Dakota  shall  constitute  one  judi- 
cial district,  to  be  known  as  the  district  of  South  Dakota.  The 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Aurora,  Beadle,  Bon  Homme,  Brook- 
ings, Brule,  Charles  Mix,  Clay,  Davison,  Douglas,  Gregory, 
Hansan,  Hutchinson,  Kingsbury,  Lake,  Lincoln,  McCook, 
Miner,  Minnehaha,  Moody,  Sonborn,  Turner,  Union,  and  Yank- 
ton, and  in  the  Yankton  Indian  reservation,  shall  constitute  the 
southern  division  of  said  district;  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Brown,  Campbell,  Clark, 
Codington,  Corson,  Day,  Deuel,  Edmunds,  Grant,  Hamlin,  Mc- 
Pherson,  Marshall,  Roberts,  Schnasse,  Spink,  and  Walworth, 
and  in  the  Sisseton  and  Wahpeton  Indian  reservation,  and  in 
that  portion  of  the  Standing  Rock  Indian  reservation  lying  in 
South  Dakota,  shall  constitute  the  northern  division  ;  the  terri- 
tory embraced  on  the  date  last  mentioned  in  (he  counties  of  Arm- 
strong, Buffalo,  Dewey,  Eaulk,  Hand,  Hughes,  Hyde,  Jerauld, 

39b  Jud.  Code,  36  St.  at  L.   1087,      as  am'd.  Act  of  Feb'y.  5,  1912. 


250  ORIGINAL    JURISDICTION.  [§    66 

Lyman,  Potter,  Stanley,  and  Sully,  and  in  the  Cheyenne  River, 
Lower  Brule,  and  Crow  Creek  Indian  reservations,  shall  con- 
stitute the  central  division;  and  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Bennett,  Butte,  Custer, 
Fall  River,  Harding,  Lawrence,  Meade,  Mellette,  Pennington, 
Perkins,  Shannon,  Todrl.  Tripp,  Washabaugh,  and  Washington, 
and  in  the  Rosebud  and  Pine  Ridge  Indian  reservations,  shall 
constitute  the  western  dwision.  Terms  of  the  district  court 
for  the  southern  division  shall  be  held  at  Sioux  Palls  on  the  first 
Tuesday  in  April  and  the  third  Tuesday  in  October;  for  the 
northern  division,  at  Aberdeen  on  the  first  Tuesday  in  May  and 
the  second  Tuesday  in  November;  for  the  central  division,  at 
Pierre  on  the  second  Tuesday  in  June  and  the  first  Tuesday  in 
October;  and  for  the  western  division,  at  Deadwood  on  the  third 
Tuesday  in  May  and  the  first  Tuesday  in  September.  The 
clerk  of  the  District  court  shall  maintain  an  office  in  charge 
of  himself  or  a  deputy  at  Sioux  Falls,  at  Pierre,  at  Aberdeen, 
and  at  Deadwood,  which  shall  be  kept  open  for  the  transaction 
of  the  business'of  the  court."40 

M§  27.  The  District  court  of  the  United  States  for  the  district 
of  South  Dakota  shall  have  jurisdiction  to  hear,  try,  and  de- 
termine all  actions  and  proceedings  in  which  any  person  shall 
be  charged  with  the  crime  of  murder,  manslaughter,  rape,  as- 
sault with  intent  to  kill,  arson,  burglary,  larceny,  or  assault  with 
a  dangerous  weapon,  committed  within  the  limits  of  any  Indian 
reservation  in  the  State  of  South  Dakota." 41  The  District 
Court  of  the  United  States  for  South  Dakota  is  the  same  court, 
whether  held  in  one  division  or  another ;  and  where  a  recogniz- 
ance bound  an  accused  to  appear  at  a  term  to  be  held  in  one 
division;  it  was  held,  that  he  might  be  subsequently  ordered  to 
appear  for  trial  in  another  division,  without  relieving  the  sure- 

i    *  *  42 

ties  upon  his  recognizance. 

"§  107.  The  State  of  Tennessee  is  divided  into  three  dis- 
tricts, to  be  known  as  the  eastern,  middle,  and  western  districts 
of  Tennessee.     The  eastern  district  shall  include  the  territory 

t/ 

embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Bledsoe,  Bradley,  Hamilton,  James,  McMinn, 
Marion,  Meigs,  Polk,  Rhea,  and  Sequatchie,  which  shall  consti- 

M36  St.  at  L.   1087.  «  Hollister  v.  U.  S.,  C.  C.  A.,  145 

41  Ibid.  Fed.  773. 


§    GG]  TENNESSEE.  251 

tnte  the  southern  division  of  said  district;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Anderson, 
Blount,  Campbell,  Claiborne,  Grainger,  Jefferson,  Knox,  Lou- 
don, Monroe,  Morgan,  Roane,  Sevier,  Scott,  and  Union,  which 
shall  constitute  the  northern  division  of  said  district ;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Carter,  Cocke,  Greene,  Hamblen,  Hancock,  Hawkins,  John- 
son, Sullivan,  Unicoi,  and  Washington,  which  shall  constitute 
the  northeastern  division  of  said  district.  Terms  of  the  Dis- 
trict court  for  the  souttiern  division  of  said  district  shall  be 
held  at  Chatanooga  on  the  fourth  Monday  of  April  and  the 
second  Monday  in  November;  for  the  northern  division,  at 
Knoxville  on  the  fourth  Monday  in  May  and  the  first  Monday 
in  May  and  the  first  Monday  in  December;  and  for  the  north- 
eastern division,  at  Greeneville  on  the  first  Monday  in  March 
and  the  third  Monday  in  September.  The  middle  district 
shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten.  in  the  counties  of  Bedford,  Cannon, 
Cheatham,  Coffee,  Davidson,  Dickson,  Franklin,  Giles,  Grundy. 
Hickman,  Humphreys,  Houston,  Lawrence,  Lew'is,  Lincoln, 
Marshall,  Maury,  Montgomery,  Moore,  Robertson,  Rutherford, 
Stewart,  Sumner,  Trousdale,  Warren,  Wayne,  Williamson,  and 
Wilson,  which  shall  constitute  the  Nashville  division  of  said 
district ;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Clay,  Cumberland,  DeKalb,  Fentress,  Jack- 
son, Macon,  Overton,  Pickett,  Putnam,  Smith,  Van  Buren,  and 
White,  which  shall  constitute  the  northeastern  division  of  said 
district.  Terms  of  the  district  court  for  the  Nashville  division 
of  said  district  shall  be  held  at  Nashville  on  the  second  Monday 
of  March  and  the  first  Monday  of  November;  and  for  the 
northeastern  division,  at  Cookeville  on  the  third  Monday  in 
April  and  the  first  Monday  in  November:  Provided,  That 
suitable  accommodations  for  holding  court  at  Cookeville 
shall  be  provided  by  the  county  or  municipal  authorities 
without  expense  to  the  United  States.  The  western  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Dyer,  Fayette.  Haywood, 
Lauderdale,  Shelby,  and  Tipton,  which  shall  constitute  the 
western  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Benton,  Carroll, 


252  ORIGINAI      .H'KTSDICTIOX.  [§    66 

(  'hester,  Crockett,  Decatur,  Gibson,  Hardeman,  Hardin,  Hen- 
derson, Henry,  Lake,  AlcXairy,  Madison,  Obion,  Perry,  and 
Weakley,  including  the  waters  of  the  Tennessee  River  to  low 
water  mark  on  the  eastern  shore  thereof  wherever  such  river 
forms  the  boundary  line  between  the  western  and  middle  dis- 
tricts of  Tennessee,  from  the  north  line  of  the  State  of  Alabama 
north  to  the  point  in  Henry  County,  Tennessee,  where  the  south 
boundary  line  of  the  State  of  Kentucky  strikes  the  west  bank  of 
the  river,  which  shall  constitute  the  eastern  division  of  said  dis- 
driet.  Terms  of  the  District  court  for  the  western  dirts-ion 
of  said  district  shall  be  held  at  Memphis  on  the  fourth  Mondays 
in  May  and  November;  and  for  the  eastern  division,  at  Jackson 
on  the  fourth  Mondays  in  April  and  October.  The  clerk  of  the 
court  for  the  western  district  shall  appoint  a  deputy  who  shall 
reside  at  Jackson.  The  marshal  for  the  western  district  shall 
appoint  a  deputy  who  shall  reside  at  Jackson.  The  marshal  for 
the  eastern  district  shall  appoint  a  deputy  who  shall  reside  at 
Chattanooga.  The  clerk  of  the  court  for  the  eastern  district 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 
Knoxville,  #t  Chattanooga,  and  at  Greenville,  which  shall  be 
kept  open  at  all  times  for  the  transaction  of  the  business  of  the 
court.42a 

"§  108.  The  State  of  Texas  is  divided  into  four  districts,  to 
be  known  as  the  northern,  eastern,  western,  and  southern  dis- 
tricts of  Texas.  The  northern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Dallas,  Ellis,  Hunt,  Johnson,  Kaufman,  Xav- 
arro,  and  Rockwall,  which  shall  constitute  the  Dallas  division; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Archer,  Baylor,  Clay,  Comanche,  Erath,  Eoard, 
Hardeman,  Hood,  Jack,  Palo  Pinto,  Parker,  Tarrant,  Wichita, 
Wilbarger,  Wise,  and  Young,  which  shall  constitute  the  Fort 
Worth  division;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Armstrong,  Bailey,  Briscoe,  Car- 
son, Castro,  Childress,  Cochran,  Collingsworth,  Cottle,  Crosby, 
Dallam,  Deaf  Smith,  Dickens,  Donley,  Floyd.  Gray,  Hale,  Hall, 
Hansford,  Hartley,  Hemphill.  Hockley.  Hutchinson,  King, 
Lamb,  Lipscomb.  Lubbock.  Moore,  Motley,  Ochiltree,  Oldham, 
Parmer,    Potter,    Randall.    Roberts,    Sherman.    Swisher,    and 

«a.Tud.  Code.   3G  St.  at   L.   1087,      as  am'd    Act  of  Aug.  20.  1912. 


§  66]  texas.  253 

Wheeler,  which  shall  constitute  the Amarillo  division;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Andrews,  Borden,  Callahan,  Dawson,  Eastland,  Fisher,  Gaines, 
Garza,  Haskell,  Howard,  Jones,  Kent,  Knox,  Lynn,  Mar- 
tin, Midland,  Mitchell,  Nolan,  Scurry,  Shackelford,  Stephens, 
Stonewall,  Tayor,  Terry,  Throckmorton,  and  Yoakum,  which 
shall  constitute  the  Abilene  division  ;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Brown,  Coke,  Cole- 
man, Concho,  Crockett,  Glasscock,  Irion,  Manard,  Mills,  Run- 
nels, Schleicher,  Sterling,  Sutton,  Tom  Green,  and  Upton, 
which  shall  constitute  the  San  Angelo  division  of  the  said  dis- 
district.  Terms  of  the  district  court  for  the  Dallas  division 
shall  be  held  at  Dallas  on  the  second  Monday  in  January  and 
the  first  Monday  in  May;  for  the  Fort  Worth  division,  at  Fort 
Worth  on  the  first  Monday  in  November  and  the  second  Monday 
in  March;  for  the  Amarillo  division,  at  Amarillo  on  the  third 
Monday  in  April  and  the  fourth  Monday  in  September ;  for 
the  Abilene  division,  at  Abilene  on  the  first  Monday  in  Octo- 
ber and  the  second  Monday  in  April ;  and  for  the  San  Angelo 
division,  at  San  Angelo  on  the  third  Monday  in  October  and 
the  fourth  Monday  in  April.  The  clerk  of  the  court  for  the 
northern  district  shall  maintain  an  office  in  charge  of  himself 
or  a  deputy  at  Dallas,  at  Fort  Worth,  at  Amarillo,  at  Abilene, 
and  at  San  Angelo,  which  shall  be  kept  open  at  all  times  for 
the  transaction  of  the  business  of  the  court.  The  eastern  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Anderson, 
Angelina,  Cherokee,  Gregg,  Henderson,  Houston,  Nacogdoches, 
Panola,  Rains,  Busk,  Smith,  Van  Zandt,  and  Wood,  which  shall 
constitute  the  Tyler  division;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Hardin,  Jasper,  Jef- 
ferson, Liberty,  Newton,  Orange,  Sabine,  San  Augustine, 
Shelby,  and  Tyler,  which  shall  constitute  the  Beaumont  divi- 
sion ;  also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Collin,  Cook,  Denton,  Grayson,  and  Montague, 
wkich  shall  constitute  the  Sherman  division;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Camp. 
Cass,  Harrison,  Hopkins,  Marion,  .Morris,  and  Upshur,  which 
shall  constitute  the  Jefferson  division;  also  the  territory  em- 
braced on  the  dast  last  mentioned  in  the  counties  of  Delta, 


254  ORIGINAL    JURISDICTION.  [§    CG 

Fannin,  Red  River,  and  Lamar,  which  shall  constitute  the  Paris 
division;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Bowie,  Franklin,  and  Titus,  which  shall  con- 
stitute the  Texarhana  division.  Terms  of  the  District  court  for 
the  Tyler  division  shall  be  held  at  Tyler  on  the  fourth  Mon- 
days in  January  and  April ;  for  the  Jefferson  division,  at  Jef- 
ferson on  the  first  Monday  in  October  and  the  third  Monday  in 
February;  for  the  Beaumont  Division,  at  Beaumont  on  the 
third  Monday  in  November  and  the  first  Monday  in  April ; 
for  the  Sherman  division,  at  Sherman  on  the  first  Monday 
in  January  and  the  third  Monday  in  May;  for  the  Paris  divi- 
sion, at  Paris  on  the  third  Monday  in  October  and  the  first 
Monday  in  March ;  and  for  the  Texarhana  division  at  Texar- 
kana  on  the  third  Monday  in  March  and  the  first  Monday  in 
November.  The  clerk  of  tbe  court  for  the  eastern  district  shall 
maintain  an  office  in  charge  of  himself  or  a  deputy  at  Sherman 
at  Beaumont,  and  at  Texarkana,  which  shall  be  kept  open  at 
all  times  for  the  transaction  of  the  business  of  said  court.  The 
western  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Bas- 
trop, Blanco,  Burleson,  Burnet,  Caldwell,  Gillespie,  Hays, 
Kimble,  Lampasas,  Lee,  Llano,  Mason,  McCulloch,  San  Saba, 
Travis,  Washington,  and  Williamson,  which  shall  constitute 
the  Austin  division;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Atascosa,  Bandera,  Bexar, 
Comal,  Dimmit,  Edwards,  Frio,  Gonzales,  Guadalupe,  Karnes, 
Kendall,  Kerr,  Medina,  and  Wilson,  which  shall  constitute 
the  San  Antonio  division ;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Brewster,  Crane,  Ector, 
El  Paso,  Jeff  Davis,  Loving,  Reeves,  Presidio,  Ward,  and  Wink- 
ler, which  shall  constitute  the  El  Paso  division  ;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of 
Bell,  Bosque,  Coryell,  Falls,  Hamilton,  Freestone,  Hill,  Leon, 
Limestone,  McLennan,  Milam,  Robertson,  and  Somervell,  which 
shall  constitute  the  Waco  division;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Kinney,  Maverick, 
Pecos,  Terrell,  Uvalde,  Valverde,  and  Zavalla,  which 
shall  constitute  the  Del  Rio  division.  Terms  of  the 
District  court  for  the  Austin  division  shall  be  held 
at     Austin     on     the     fourth     Monday     in     January      and 


§  66]  texas.  255 

the     second     Monday     in     June;     for     the     Waco     division 
on  the  fourth  Monday  in  February  and  the  second  Monday  in 
November;  for  the  San  Antonio  division,,  at  San  Antonio  on 
the  first  Monday  in  May  and  the  third  Monday  in  December ; 
for  the  El  Paso  division,  at  El  Paso  on  the  first  Monday  in 
April  and  the  first  Monday  in  October;  and  for  the  Del  Bio 
division,  at  Del  Rio  on  the  third  Monday  in  March  and  the 
fourth  Monday  in  October.    The  clerk  of  the  court  for  the  west- 
ern district  shall  maintain  an  office  in  charge  of  himself  or  a 
deputy  at  Austin,  El  Paso,  and  at  Del  Rio,  which  shall  be  kept 
open  at  all  times  for  the  transaction  of  business.     The  southern 
district  shall   include   the  territory  embraced  on  the  first  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Duval,  La 
Salle,  McMullen,  Nueces,  Webb,  and  Zapata,  which  shall  con- 
stitute the  Laredo  division;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Cameron,  Hidalgo,  and 
Starr,  which  shall  constitute  the  Brownsville  division;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Austin,  Brazoria,  Chambers,  Galveston,  Fort  Bend,  Matagorda, 
and  Wharton,  which  shall  constitute  the   Galveston  division ; 
also  the  territory  embraced  on  the  date  last  mentioned,  in  the 
counties  of  Brazos,  Colorado,  Fayette,  Grimes,  Harris,  Lavaca, 
Madison,  Montgomery,  Polk,  San  Jacinto,  Trinity,  Walker,  and 
Waller,  which  shall  constitute  the  Houston  division;  also  the 
territory  embraced  on  the  date  last  mentioned,  in  the  coun- 
ties   of    Calhoun,    Dewitt,    Goliad,    Jackson,    Refugio,     and 
Victoria,      which      shall      constitute     the      Victoria   division. 
Terms     of     the     District     Court     for     the     Galveston    divi- 
sion  shall    be    held   at   Galveston   on   the    second    Monday    in 
January   and    the   first   Monday   in   June ;    for   the   Houston 
division,  at  Houston  on  the  fourth  Mondays  in  February  and 
September;  for  the  Laredo  division,  at  Laredo  on  the  third 
Monday  in  April  and  the  second  Monday  in  November;  for 
the  Brownsville  division,  at  Brownsville  on  the  second  Monday 
in  May  and  the  first  Monday  in  December ;  and  for  the  Victoria 
division,  at  Victoria  on  the  first  Monday  in  May  and  the  fourth 
Monday  in  November.     The  clerk  of  the  court  for  the  southern 
district  shall  maintain  an  office  in  charge  of  himself  or  a  depul  v 
at  each  of  the  places  now  designated  for  holding  court  in  sail 


256  ORIGINAL    JtJBISDICTION.  [§    66 

district."*3  ''The  counties  of  Bee,  Live  Oak,  Aransas,  San 
Patricio,  Nueces,  Jim  Wells,  Duval,  Brooks,  and  Willaek  shall 
constitute  a  division  of  the  southern  judicial  district  of  Texas. 
Terms  of  the  District  Court  of  the  United  States  for  the  said 
southern  district  of  Texas  shall  be  held  twice  in  each  pear  at 
the  city  of  Corpus  Christi,  in  Neuees  County,  and  that,  until 
otherwise  provided  by  law,  the  judge  of  said  court  shall  fix  the 
times  at  which  said  court  shall  be  held  at  Corpus  Christi,  of 
which  he  shall  make  publication  and  give  due  notice."48"  "That 
the  counties  of  Beeves,  Ward,  Martin,  Reagan,  Winkler,  Ector, 
Gaines.  Andrews,  Upton,  Midland.  Loving,  Jeff  Davis,  and 
Crane  shall  constitute  a  division  of  the  western  judicial  dis- 
trict of  Texas.  Terms  of  the  District  Court  of  the  L^nited 
States  for  the  western  district  of  Texas  shall  be  held  twice  in 
each  year  at  the  city  of  Pecos,  in  Reeves  county,  and  that,  un- 
til otherwise  provided  by  law,  the  judge  of  said  court  shall  fix 
the  times  at  which  said  court  shall  be  held  at  Pecos,  of  which 
he  shall  make  proclamation  and  give  due  notice:  Provided, 
however,  that  suitable  rooms  and  accommodations  shall  be  fur- 
nished for  the  holding  of  said  court  and  for  the  use  of  the  offi- 
cer of  said  court  at  Pecos,  free  of  expense  to  the  Government 
of  the  United  States."43'0 

"§  109.  The  State  of  Utah  shall  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  Utah.  It  is  divided  into 
two  divisions,  to  be  known  as  the  northern  and  central  divisions. 
The  northern  division  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Boxelder,  ('ache,  Davis.  Morgan.  Rich,  and  Weber.  The 
central  division  shall  include  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Beaver,  Carbon,  Emery, 
Garfield,  Grand.  Iron,  Juab,  Kane,  Millard,  Piute,  Salt  Lake, 
San  .hum.  San  Pete.  Sevier.  Summit,  Tooele,  Uinta,  Utah.  Wa- 
satch,  Washington,  and   Wayne.     Terms  of  the  district  court 

43  36   St.  at  L.   1087.   For  special  273.     As  to  jurisdiction  over  pend- 

jurisdiction      of     the     courts     held  ing  cases,  see  O'Connor  v.  O'Connor, 

in     this     district     over     controver-  146  Fed.  994.     See  also  Re  Jackson, 

sies  affecting   the  Giilf,   Colorado  k  40  Fed.  372:    International  Bank  & 

Santa  Fe  Railroad  Company,  see  23  Trust  Co.  v.  Scott.  C.  C.  A.,  159  Fed. 

St.  at  L..  ch.   17  7.  §  8.  p.  72;  23  St.  58. 

at   L.  ch.   170.   §   S.   p.  975;    Briscoe  «a  Act   of  May  20.  1012. 

v.   Southern   Kan.   Ry.   Co.,  40  Fed.  «b  Act  of  Feb'y  5,  1913. 


§     66]  VERMONT;    VIRGINIA.  257 

for  the  northern  division  shall  be  held  at  Ogden  on  the  second 
Mondays  in  March  and  Septemher;  and  for  the  central  division, 
at  kSalt  Lake  City  on  the  second  Mondays  in  April  and  Xovem- 
her.  The  clerk  of  the  court  for  said  district  shall  maintain 
an  office  in  charge  of  himself  or  a  deputy  at  each  of  the  places 
where  the  court  is  now  required  to  be  held  in  the  district. 

"§  110.  The  State  of  Vermont  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  Vermont.  Terms  of  the 
District  court  shall  be  held  at  Burlington  on  the  fourth  Tuesday 
in  February;  at  Windsor  on  the  third  Tuesday  in  May;  and  at 
Rutland  on  the  first  Tuesday  in  October.  And  at  Brattleboro 
on  the  third  Tuesday  in  December.  In  each  year  one  of  the 
stated  terms  of  the  district  court  may,  when  adjourned,  be  ad- 
journed to  meet  at  Montpelier  and  one  at  Newport;  Provided, 
however,  that  suitable  rooms  and  accommodations  shall  be  fur- 
nished for  the  holdings  of  said  court  and  for  the  use  of  the  offi- 
cers of  said  court  at  Brattleboro  free  of  expense  to  the  Govern- 
ment of  the  United  States  until  the  public  building  provided 
for  by  Act  of  Congress  shall  be  erected."430 

"§  111.  The  State  of  Virginia  is  divided  into  two  districts 
to  be  known  as  the  eastern  and  western  districts  of  Virginia. 
The  eastern  district  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten.  in  the  counties 
of  Aectfmac,  Alexandria,  Amelia,  Brunswick,  Caroline,  Charles 
City,  Chesterfield.  Cu'lpeper,  Dinwiddie.  Elizabeth  City,  Kssex. 
Fairfax,  Fauquier,  Gloucester,  Goochland.  Greensville,  Han- 
over, Henrico.  Tsle  of  Wight,  James  City.  King  and  Queen. 
King  George,  King  William,  Lancaster,  Loudoin,  Louisa, 
Lunenburg,  Mathews.  Mecklenburg,  Middlesex.  Xanse- 
mond,  Xew  Kent,  Xorfolk,  Northampton,  Northumber- 
land, Xottoway.  Orange,  Powhatan,  Prince  Edward, 
Prince  George,  Prince  William,  Princess  Anne,  Rich- 
mond, Southampton,  Spottsylvania,  Stafford.  Surry,  Sus- 
sex, Warwick,  Westmoreland,  and  York.  Terms  of  the 
District  court  shall  be  held  at  Richmond  on  the  first  Mon- 
days in  April  and  October;  at  Xorfolk  on  the  first  Mondays  in 
May  and  November  and  at  Alexandria,  on  the  first  Mondays 
in  January  and  July.  The  western  district  shall  include  the 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hun- 
dred and  ten.  in  the  comities  of  Alleghany,  Albemarle,  Ami- 
Fed.  Prac.  Vol.  I —17. 


258  OK1G1NAL    JURISDICTION.  [§    66 

Eerstj  Appomattox,  Augusta,  Bath,  Bedford,  Bland,  Boteeourt, 
Buchanan,  Bncking'ham,  Campbell,  Carroll,  Charlotte,  Clarke, 
Craig,  Cumberland,  Dickenson,  Floyd,  Fluvanna,  Franklin, 
Frederick,  Giles.  Grayson,  Greene,  Halifax,  Henry,  Highland, 
Lee,  .Madison,  Montgomery,  Nelson,  Page,  Patrick,  Pulaski, 
Pittsylvania,  Rappahannock,  Roanoke,  Rockbridge,  Rocking- 
ham. Russell,  Scott,  Shenandoah,  Smyth,  Tazewell,  Warren, 
Washington,  Wise,  and  Wythe.  Terms  of  the  district  court 
shall  be  held  at  Lynchburg  on  the  Tuesdays  after  the  second 
Mondays  in  March  and  September;  at  Danville  on  the  Tuesdays 
after  the  second  Mondays  in  April  and  November;  at  Abingdon 
on  the  Tuesdays  after  the  first  Mondays  in  May  and  October; 
at  Harrisonburg  on  the  Tuesdays  after  the  first  Mondays  in 
dune  and  December;  at  Charlottesville  on  the  second  Monday  in 
January  and  the  first  Monday  in  July ;  at  Roanoke  on  the 
third  Monday  in  February  and  the  third  Monday  in  June;  and 
at  Biff  Stone  Gap  on  the  fourth  Monday  in  January  and  the  sec- 
ond  Monday  in  August.  The  clerk  of  the  court  for  the  western 
district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  Lynchburg,  at  Danville,  at  Charlottesville,  at  Roanoke,  at 
Abingdon,  and  at  Big  Stone  Gap,  which  shall  be  kept  open  at 
all  times  for  the  transaction  of  the  business  of  the  court.*' 44 
The  court  of  admiralty  in  the  Eastern  District  of  Virginia  can 
serve  process  of  the  Potomac  River  below  Georgetown,  between 
the  District  of  Columbia  and  Alexandria  County,  Virginia.45 

"§  112.  The  State  of  Washingtor^is  divided  into  two  districts, 
to  be  known  as  the  eastern  and  western  districts  of  Washington. 
The  eastern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Spokane,  Stevens,  Ferry,  Okanogan,  Chelan,  Grant,  Douglas, 
Lincoln,  and  Adams,  with  the  waters  thereof,  including  all  In- 
dian reservations  within  said  counties,  which  shall  constitute 
the  northern  division  :  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Asotin,  Garfield.  Whitman, 
Columbia,  Franklin,  Walla  Walla,  Benton.  Klickitat,  Kittitas. 

«36   St.  at  L.   1087.     As   to  the  «  Atcheson  v.  The  Endless  Chain 

boundary      between      Virginia      and       Dredge,  40  Fed.  253. 
West  Virginia,  see  Bluefield  Water 
Works   &    Imp.    Co.    v.    Sanders,    63 
Fed.   333. 


§    66]  WASHINGTON.  259 

and  Yakima,  with  the  waters  thereof,  meliiding  all  Indian  res- 
ervations within  said  counties,  which  shall  constitute  the  south- 
ern division  of  said  district.  Terms  of  the  District  court  for  the 
northern  division  shall  be  held  at  Spokane  on  the  first  Tuesdays 
in  April  and  September ;  for  the  southern  division,  at  Walla 
Walla  on  the  first  Tuesdays  in  June  and  December,  and  at 
North  Yakima  on  the  first  Tuesdays  in  May  and  October,  The 
western  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  What- 
com, Skagit,  Snohomish,  King,  San  Juan,  Island,  Kitsap,  Clal- 
lam, and  Jefferson,  with  the  waters  thereof,  including  all  In- 
dian reservations  within  said  counties,  which  shall  constitute 
the  northern  division;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Pierce,  Mason,  Thurston,  Che- 
halis,  Pacific,  Lewis,  Wahkiakum,  Cowlitz,  Clarke,  and  Skam- 
ania, with  the  waters  thereof,  including  all  Indian  reservations 
within  said  counties,  which  shall  constitute  the  southern  division 
of  said  district.  Terms  of  the  district  court  for  the  northern 
division  shall  be  held  at  Bellingham  on  the  first  Tuesdays  in 
April  and  October;  at  Seattle  on  the  first  Tuesdays  in  May  and 
Xovember;  and  for  the  southern  division,  at  Tacoma  on  the 
first  Tuesdays  hi  February  and  July.  The  clerks  of  the  courts 
for  the  eastern  and  western  districts  shall  maintain  an  office 
in  charge  of  himself  or  a  deputy  at  each  place  in  their  respect- 
ive districts  where  terms  of  court  are  now  required  to  be  held.'' 46 
The  United  States  District  Court  and  the  State  courts  of 
Washington  have  jurisdiction  concurrent  with  the  courts,  State 
and  Federal,  in  the  State  of  Oregon,  in  civil  and  criminal  cases 
upon  the  Columbia  River.47  This  includes  jurisdiction  over 
a  floating  structure  used  in  connection  with  fish-nets  in  the 
river,  although  anchored  by  means  of  weights.48  It  has  been 
said,  that  ordinarily  when  such  a  structure  is  on  the  Oregmi 
side  of  the  river,  the  Federal  court  in  Washington  should, 
through  comity,  decline  to  grant  an  injunction  vacating  the 
same,  but  should  leave  the  parties  aggrieved  to  their  remedy  in 
the  court  sitting  in  the  other  State.49  Where  the  court  granted 
an  injunction  against  the  use  of  such  a  floating  structure  on 

46.30  St.  at  L.  1087.  48  [bid.     See  supra  under  Oregon. 

W Columbia  River  Parkers'  Ass'n.  »  Columbia  River  Packers'  Ass'n, 

v.  McGowan,  172  Fed.  091.  v.  McGowan,  172   Fed.  991. 


260  ORIGINAL    JURISDICTION.  [§    6G 

the  Oregon  side  of  the  Columbia  TCiver,  under  the  erroneous  be- 
lief that  it  was  within  the  boundary  of  Washing-ton,  it  refused 
to  dismiss  the  suit  at  the  complainant's  request  so  as  to  deprive 
the  defendant  of  its  remedy  upon  the  injunction  bond.50 

"§  113.  The  State  of  West  Virginia  is  divided  into  two  dis- 
tricts, to  be  known  as  the  northern  and  southern  districts  of 
West  Virginia.  The  northern  district  shall  include  the  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Hancock,  Brooke,  Ohio,  Marshall,  Tyler, 
Pleasants,  Wood,  Wirt,  Ritchie,  Doddridge,  Wetzel,  Monon- 
galia, Marion,  Harrison,  Lewis,  Gilmer,  Calhoun,  1'pshur,  Bar- 
bour, Taylor,  Preston,  Tucker,  Randolph,  Pendleton,  Hardy, 
Grant,  Mineral,  Hampshire,  Morgan,  Berkeley  ,and  .Jefferson, 
with  the  waters  thereof.  Terms  of  the  District  court  for  the 
northern  district  shall  be  held  at  Martinsburg,  the  first  Tues- 
day of  April  and  the  third  Tuesday  of  September ;  at  Clarks- 
burg, the  second  Tuesday  of  April  and  the  first  Tuesday  of 
October;  at  Wheeling,  the  first  Tuesday  of  May  and  the  third 
Tuesday  of  October;  at  Philippi,  the  fourth  Tuesday  of  May 
and  first  Tuesday  of  November;  at  Parkersburg,  the  second 
Tuesday  of  January  and  second  Tuesday  of  June:  Provided, 
That,  a  place  for  holding  court  at  Philippi  shall  be  furnished 
the  Government  free  of  cost  by  Barbour  County  until  other 
provision  is  made  therefor  by  law.  The  southern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten.  in  the  counties  of  Jackson,  Roane,  Clay, 
Braxton,  Webster,  Nicholas,  Pocahontas,  Greenbrier,  Fayette, 
Boone,  Kanawha,  Putnam,  Mason,  Cabell,  Wayne,  Lincoln, 
Logan,  Mingo,  Raleigh,  Wyoming,  McDowell,  Mercer,  Sum- 
mers, and  Monroe,  with  the  waters  thereof.  Terms  of  the  dis- 
trict court  for  the  southern  district  shall  be  held  at  Charleston 
on  the  first  Tuesday  in  June  and  the  third  Tuesday  in  Novem- 
ber; at  Huntington,  on  the  first  Tuesday  in  April  and  the  first 
Tuesday  after  the  third  Monday  in  September;  At  Bluefield 
on  the  first  Tuesdav  in  Mav  and  the  third  Tuesdav  in  October; 
at  Addison  on  the  first  Tuesday  in  September;  and  at  Lewis- 
burg  on    the  second   Tuesday  in   July:      Provided,   That   ac- 

50  Tbid. 


§  66]  Wisconsin.  261- 

commodations  for  holding  court  at  Addison  shall  be  furnished 
without  cost  to  the  United  States.50a 

§  114.  The  State  of  Wisconsin  is  divided  into  two  districts, 
to  he  known  as  the  eastern  and  western  districts  of  Wisconsin. 
The  eastern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Brown,  Calumet,  Dodge,  Door,  Florence,  Fond  du  Lac, 
Forest,  Green  Lake,  Kenosha,  Kewaunee,  Langlade,  Man- 
itowoc, Marinette,  Marquette,  Milwaukee,  Oconto,  Out- 
agamie, Ozaukee,  Racine,  Shawano,  Sheboygan,  Wal- 
worth, Washington,  Waukesha,  Waupaca,  Waushara,  and 
Winnebago.  Terms  of  the  District  court  for  said  dis- 
trict shall  be  held  at  Milwaukee  on  the  first  Mondays 
in  January  and  October;  at  Oshkosh  on  the  second  Tuesday  in 
June;  and  at  Green  Bay  on  the  first  Tuesday  in  April.  The 
western  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Adams,  Ashland,  Barron,  Bayfield,  Buffalo,  Burnett,  Chippe- 
wa, Clark,  Columbia,  Crawford,  Dane,  Dunn,  Douglas,  Eau 
Claire,  Grant,  Green.  Iowa,  Iron,  Jackson,  Jefferson,  Juneau, 
La  Crosse,  Lafayette,  Lincoln,  Marathon,  Monroe,  Oneida, 
Pepin,  Pierce,  Polk,  Portage,  Price,  Richland,  Rock,  Rusk, 
Saint  Croix,  Sauk,  Sawyer,  Taylor,  Trempealeau,  Vernon,  Vi- 
las, Washburn,  and  Wood.  Terms  of  the  District  court  for  said 
district  shall  be  held  at  Madison  on  the  first  Tuesday  in  Decem- 
ber;  at  Eau  Claire  on  the  first  Tuesday  in  June;  at  La  Crosse 
on  the  third  Tuesday  in  September;  and  at  Superior  on  the 
fourth  Tuesday  in  January  and  the  second  Tuesday  in  July. 
The  District  court  for  each  of  said  districts  shall  be  open  at  all 
times  for  the  purpose  of  hearing  and  deciding  causes  of  admir- 
alty and  maritime  jurisdiction,  so  far  as  the  same  can  be  done 
without  a  jury.  The  clerk  of  the  court  for  the  western  district 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 
Madison,  at  La  Crosse,  and  at  Superior,  which  shall  be  kept 
open  at  all  times  for  the  transaction  of  the  business  of  the 
court.  The  marshal  for  the  western  district  shall  appoint  a 
deputy  marshal  who  shall  reside  and  keep  his  office  at  Superior. 
All  writs  and  other  process,  except  criminal  warrants,  issued 
at  Superior  may  be  made  returnable  at  Superior ;  and  the  clerk 
at  that  place  shall  keep  in  his  office  the  original  records  of  all 

50a  Jud.  Code,   36  St.   at  L.   3087,       as  am'd.  Act  of  Mar.  23.  1913. 


262  ORIGINAL    JURISDICTION.  [§    66 

actions,  prosecutions,  and  special  proceedings  so  commenced 
and  pending'  therein.  Criminal  warrants  may  be  returned  at 
any  place  within  the  district  where  court  is  held.  Whenever 
warrants  issued  at  Superior  shall  be  returned  at  any  other 
place,  the  clerk  of  the  court  wherein  the  warrant  is  returned, 
shall  certify  the  same,  under  the  seal  of  the  court,  together  with 
the  plea  and  other  proceedings  had  thereon,  and  the  determina- 
tion of  the  court  upon  such  plea  or  proceedings,  with  all  papers 
and  orders  filed  in  reference  thereto,  to  the  clerk  of  the  court 
at  Superior;  and  the  clerk  at  Superior  shall  enter  upon  his 
records  a  minute  of  the  proceedings  had  upon  the  return  of  said 
warrant,  certified  as  aforesaid.  All  causes  and  proceedings  in- 
stituted in  the  court  at  Superior  shall  be  tried  therein,  unless  by 
consent  of  the  parties,  or  upon  the  order  of  the  court,  they  are 
transferred  to  another  place  for  trial.'' 51 

It  was  held :  that  the  District  Court  for  the  Eastern  District 
of  Wisconsin  had  no  jurisdiction  of  an  indictment  for  assault, 
committed  on  a  vessel  on  Lake  Huron,  within  the  boundary 
of  the  jurisdiction  of  the  Eastern  District  of  Michigan.52 

"§  115.  The  State  of  Wyoming  and  the  Yellowstone  Na- 
tional Park  shall  constitute  one  judicial  district,  to  be  known 
as  the  district  of  Wyoming.  Terms  of  the  district  court  for 
said  district  shall  be  held  at  Cheyenne  on  the  second  Mondays 
in  May  and  November ;  at  Evanston  on  the  second  Tuesdav  in 
July;  and  at  Lander  on  the  first  Monday  in  October;  and  the 
said  court  shall  hold  one  session  annually  at  Sheridan,  and  in 
said  national  park,  on  such  dates  as  the  court  may  order.  The 
marshal  and  clerk  of  the  said  court  shall  each,  respectively, 
appoint  at  least  one  deputy  to  reside  at  Evanston,  and  one  to 
reside  at  Lander,  unless  he  himself  shall  reside  there,  and  shall 
also  maintain  an  office  at  each  of  those  places:  Provided,  That 
until  a  public  building  is  provided  at  Lander,  suitable  ac- 
commodations for  holding  court  in  said  town  shall  be  fur- 
nished the  Government  at  an  expense  not  to  exceed  three  hun- 
dred dollars  annually.  The  marshal  of  the  United  States  for 
the  said  district  may  appoint  one  or  more  deputy  marshals  for 
the  Yellowstone  National  Park,  who  shall  reside  in  said 
park."53  "§  26.  The  District  court  for  tie  district  of  Wyom- 
ing shall  have  jurisdiction  of  all  felonies  committed  within  the 

51  3G  St.  at  L.  1087.  53  36  St.  at  L.  1087. 

52  U.  S.  v.  Peterson.  64  Fed.  145. 


§    67]  DISTRICT   COUKT    OF   ALASKA.  263 

Yellowstone  National  Park  and  appellate  jurisdiction  of  judg- 
ments in  cases  of  convictions  before  the  commissioner  author- 
ized to  be  appointed  under  section  five  of  an  Act  entitled  'An 
Act  to  protect  the  birds  and  animals  in  Yellowstone  National 
Park,  and  to  punish  crimes  in  said  Park,  and  for  other  pur- 
poses/ approved  May  seventh,  eighteen  hundred  and  ninety- 
four." M  "It  seems  that  the  territorial  limits  of  these  districts, 
as  fixed  by  the  statute,  are  unaffected  by  any  subsequent  State 
legislation  authorizing  new  counties  and  changing  county  lines.55 

§  67.  Jurisdiction  of  District  Court  of  Alaska.  In  Alaska 
there  is  a  District  Court  with  general  jurisdiction  in  civil,  crimi- 
nal, equity  and  admiralty  cases.  The  court  consists  of  three 
divisions,  each  of  which  is  held  by  a  different  judge  with  a  sepa- 
rate clerk,  district  attorney  and  marshal.  Jurisdiction  of 
each  division  extends  over  the  entire  territory;  but  the  court, 
where  an  action  is  pending,  may  change  the  place  of  trial  from 
one  place  to  another  in  the  same  or  another  division  for  local 
prejudice,  for  the  convenience  of  witnesses,  disqualification  of 
the  division  judge  or  the  convenience  of  the  defendant,  and  in 
criminal  prosecution  also  to  save  expense  to  the  United  States, 
where  the  defendant  will  not  be  prejudiced  thereby.1  The  judge 
of  each  division  is  required  to  divide  his  division  into  precincts, 
and  is  authorized  to  alter  the  same  and  establish  new  precincts 
from  time  to  time,  as  public  convenience  may  require.2  He  is 
also  required  to  appoint  commissioners  and  to  remove  such  com- 
missioners, at  pleasure.3  These  commissioners  have  within 
their  respective  precincts  the  jurisdiction  and  powers  of  the 
commissioners  of  the  District  Courts  of  the  United  States  and 
of  notaries  public.  They  are  ex  officio  justices  of  the  peace,  re- 
corders and  probate  judges.  They  have  also  power  to  grant 
writs  of  habeas  corpus,  returnable  before  a  district  judge,  for  the 
purpose  of  inquiring  into  the  cause  of  restraint  of  liberty.4 

It  was  held:  that  an  order  abolishing  a  precinct,  providing 
that  the  territory  embraced  therein  should  become  a  part  of  an- 
other precinct,  accepting  the  resignation  of  the  commissioner 

54  ibid.  §  70. 

55  Hyde  v.  Victoria  Land  Co.,  1.25  2  ibid. 
Fed.  970.  3  Ibid. 

§   67.     123    St.    at   L.    24;    30   St.  4  Act  of  June  6.  1900.  31  St.  at  L. 

at  L.   .545;    31    St.  at  L.   321.     The  321.    §    6.      This    act    contains    the 

boundaries    of    these    divisions    are  Code  of  Civil  Procedure  for  Alaska, 
described    supra,    §    66,    paragraph 


264 


ORIGINAL   JURISDICTION. 


[§  68 


for  the  precinct  abolished,  and  directing'  him  to  "deliver  the 
record  and  property  pertaining  to  his  office"  to  the  commissioner 
of  the  new  district,  with  which  the  former  one  was  consolidated  ; 
constituted  the  commissioner  of  the  latter  precinct  the  successor 
in  office  of  the  former  commissioner  of  that  abolished,  and  trans- 
ferred to  him  all  the  probate  cases  pending  in  the  former  pre- 
cinct, with  power  to  proceed  in  the  same.5  The  practice  in 
Alaska  is  regulated  by  a  Code  of  Civil  Procedure  for  Alaska  6 
and  a  Criminal  Code.7  The  common  law  is  also  in  force  in 
ihis  territory.8  The  inhabitants  of  Alaska,  at  least  when  they 
are  not  members  of  the  Indian  tribes  there,  have  the  right,  when 
charged  with  crime,  to  a  trial  by  jury  of  twelve,  before  they 
can  be  convicted.9 

§  68.  Jurisdiction  of  the  Supreme  Court  of  the  District 
of  Columbia.  The  Supreme  Court  of  the  District  of  Columbia 
has  in  general  the  same  civil  jurisdiction  that  was  vested  in  the 
General  Court,  or  the  Supreme  Court  of  Chancery,  of  Mary- 
land, on  February  27th,  1801.1  It  has  also  the  same  civil  juris- 
diction as  the  District  Courts  of  the  United  States,2  with  the 
possible  exception  of  admiralty,  and  including  jurisdiction  in 
bankruptcy,  when  the  bankrupt  resides  in  the  district.3  It  has 
no  jurisdiction  of  suits  against  persons  not  inhabitants  of  the 
district,  except  in  the  same  way  that  nonresidents  were  pro- 
ceeded against  in  the  General  Court  or  Supreme  Court  of 
Chancery  of  Maryland  on  May  3,  1802,  and  where  such  juris- 
diction is  conferred  by  special  statutes.4  It  has  jurisdiction  of 
applications  for  divorce.5     It  has  jurisdiction  to  issue  writs  of 


For  the  Alaska  Criminal  Code,  see 
Act  of  March  3,  1899,  30  St.  at  L. 
1253.  For  the  former  statute,  see 
the  Organic  Act  of  May  17.  1S84, 
23  St.  at  L.  24.  It  has  been  held 
that  such  commissioners  have  no  ju- 
risdiction of  larceny  committed  in  a 
ship,  steamboat  or  other  vessel.  Ex 
parte  Kie,  46  Fed.  485.  As  to  pro- 
bate jurisdiction,  see  Ex  parte  Em- 
ma, 48  Fed.  211. 

5  Cheney  v.  Alaska  Treadwell 
Gold  Min.  Co.,  C.  C.  A.,  148  Fed. 
808. 

6  31  St.  at  L.  321. 


7  30  St.  at  L.  253.  Act  of  March 
3,  1899. 

8  The  common  law  is  in  force  in 
this  territory.  McCloskey  v.  Pacific 
Coast  Co..  C.  C.  A.,  22  L.R.A.fN.S.) 
673,  160  Fed.  794. 

9  Rassmussen  v.  U.  S.,  197  U.  S. 
516.  25  Sup.  Ct.  514.  49  L.  ed.  863. 

§  68.  ID.  C.  Code,  §  1;  31  St. 
at  L.  1189. 

2  [bid. 

3  R.  S.  D.  C.  §  765,  19  St.  at  L. 
253.  254. 

4  1).  C.  Code,  §§  105-112.  32  St. 
at   L.   520. 

5  D.  C.  Code,  §  963. 


§  68] 


SUPREME    COURT    OF   DISTRICT    OF    COLUMBIA. 


265 


mandamus  ,  prohibition  and  certiorari  which  cannot  lie  issued  by 
the  District  Courts  of  the  United  States.6  It  may  thus  issue  the 
writ  of  mandamus  addressed  to  administrative  officers  of  the 
United  States  within  the  district.7  It  might  he  held  that  it  has 
power  to  review  by  certiorari  in  a  proper  case  a  decision  of  a 
'quasi  judicial  nature  made  by  an  executive  officer  of  the  [Tinted 
Slates  at  Washington  ; 8  and  to  issue  writs  of  prohibition  directed 
to  inferior  courts  and  to  public  boards  and  officers  acting  in  a 
quasi  judicial  capacity  within  the  district/  and  writs  of  quo 
warranto  to  determine  the  right  to  hold  an  office  of  the  United 
States  within  the  district.10  The  practice  in  this  court  is  regu- 
lated by  a  code  of  procedure,  enacted  by  Congress,  which  recog- 
nizes the  distinction  between  common  law  and  equity.11  Before 
the  enactment  of  that  code,  the  court,  had  power  to  make  rules 
for  its  practice  at  common  law  and  in  equity; 12  including  a  rule 
that  in  an  action  on  contract  where  the  plaintiff  or  his  agent 
files  an  affidavit  setting  forth  his  cause  of  action  and  the  sum 
claimed,  exclusive  of  set-off  and  just  grounds  of  defense,  and 
serves  the  defendant  with  copies  of  the  same  and  of  his  de- 
claration, he  shall  be  entitled  to  judgment,  unless  the  defendant 
filed  with  his  plea  in  bar  a  sufficient  affidavit  of  defense,  which 
specifically  states  in  precise  and  distinct  terms  grounds  of  a 
defense  in  whole  or  in  part.13 


6  32  St.  at  L.  520. 

1  I).  C.  Code  §  (58,  31  St.  at  L. 
118!!;  U.  S.  v.  Schurz,  102  U.  S. 
378.  394,  26  L.  ed.  107.  171:  Ken- 
dall v.  U.  S.,  12  Pet.  r)24,  9 
L.  ed.  1181;  Decatur  v.  Paulding, 
14  Pet.  497,  10  L.  ed.  559;  Kendall 
v.  Stokes,  3  How.  87,  11  L.  ed.  506; 
Cbm'r  of  Patents  v.  Whiteley,  4 
Wall.  522,  18  L.  ed.  335:  U.  S.  ex 
rel.  Miller  v.  Black.  128  U.  S.  40,  50, 
32  L.  ed.  354;  U.  S.  ex  rel.  Redfield 
v.  Windom,  137  U.  S.  636,  34  L.  ed. 
811  ;  U.  S.  ex  rel.  Boynton  v.  Blaine, 
139  U.  S.  306.  35  L.  ed.  183;  Rob- 
erts v.  U.  S.,  176  U.  S.  221,  44  L.  ed. 
443;  U.  S.  ex  rel.  Riverside  Oil  Co. 
v.  Hitchcock,  190  U.  S.  316.  47  L. 
ed.    1074.     See   infra,  §  457. 

8  Alexandria  C.  R.  &  Br.  Co.  v. 
District  of  Columbia,  5  Mackey   (D. 


C.)  376;  Wood  v.  District  of  Colum- 
bia, 6  Mackey  (D.  C.)  142;  Foster 
&  Abbott  on  the  Federal  Income 
Tax.  238.     See  infra,  %  460. 

9  Smith  v.  Whitney,  116  U.  S.  167, 
173,  29  L.  ed.  601,  602.  See  infra, 
§   456. 

10  See  the  discussion  in  the  Elec- 
toral Commission,  cited,  infra,  § 
468. 

1131   St.  at  L.  1189. 

12  Fidelity  &  Deposit  Co.  v.  U.  S.. 
187  U.  S.  315,  47  L.  ed.  194. 

13  Ibid.  It  is  doubtful  whether 
the  Equity  Pules  prescribed  by  the 
Supreme  Court  of  the  United  States 
apply  to  this  court.  The  judges 
thereof  are  preparing  new  rules  sub- 
stantially in  accordance  with  these, 
which  will  probably  lie  in  force  be- 
fore this  work  is  through  the  press. 


2(jQ  ORIGINAL    JURISDICTION.  [§    G9 

§  69.  Jurisdiction  of  the  Court  of  Appeals  of  the  District 
of  Columbia.  The  appellate  jurisdiction  of  the  Court  of 
Appeals  of  the  District  of  Columbia  is  as  follows:  "Any  party 
aggrieved  by  any  final  order,  judgment,  or  decree  of  the  supreme 
court  of  the  District  of  Columbia,  or  of  any  justice  thereof,  in- 
cluding any  final  order  or  judgment  in  any  case  heard  on  appeal 
from  a  justice  of  the  peace,  may  appeal  therefrom  to  the  said 
court  of  appeals ;  and  upon  such  appeal  the  court  of  appeals 
shall  review  such  order,  judgment,  or  decree,  and  affirm,  re- 
verse, or  modify  the  same  as  shall  be  just,  except  as  provided 
in  the  following  sections.  Appeals  shall  also  be  al- 
lowed to  said  court  of  appeals  from  all  interlocutory  orders 
of  the  supreme  court  of  the  District  of.  Columbia,  or  by  any 
justice  thereof,  whereby  the  possession  of  property  is  changed 
or  affected,  such  as  orders  for  the  appointment  of  receivers, 
granting  injunctions,  dissolving  writs  of  attachment,  and  the 
like;  and  also  from  any  other  interlocutory  order,  in  the  discre- 
tion of  the  said  court  of  appeals,  whenever  it  is  made  to  appear 
to  said  court  upon  petition  that  it  will  be  in  the  interest  of  jus- 
tice to  allow  such  appeal."  1  This  court  has  further  jurisdiction 
of  appeals  from  the  decisions  of  the  Commissioner  of  Patents 
refusing  to  issue  or  to  reissue  patents,2  and  from  the  decision 
of  that  commissioner  in  any  interference  case.3  It  has  also  juris- 
diction of  appeals  from  the  decisions  of  the  commissioner  upon 
an  application  for  the  registration  of  a  trade-mark,  or  for  the 
cancellation  of  such  a  registration,  or  upon  an  interference  as 
to  a  trademark.4  In  the  last  class  of  cases,  the  appeal  may  be 
taken  by  an  applicant  for  a  registration,  or  a  party  to  an  inter- 
ference, or  a  party  who  has  filed  opposition  to  a  registration,  or 
a  party  to  an  application  for  the  cancellation  of  a  registration.5 
In  these  classes  of  cases,  "when  an  appeal  is  taken  to  the  [Court 
of     Appeals]      of     the     District     of     Columbia,      the      ap- 

§  69.     1  D.  C.  Code,  §  226.  27  St.  3  D.  C.  Code,  §  228,  27  St.  at  L. 

at  L.  434.  Comp.  St.  573,  4  Fed.  St.  436.  §  9,  Comp.  St.  339],  5  Fed.  St. 

Ann.   466.  Ann.   502;    McKnight   v.   Metal   Vo- 

2  D.  C.  Code.   §  228,  27   St.  at  L.  Utilization  Co.,  128  Fed.  51. 

436,  §  9,  Comp.  St.  3391.  5  Fed.  St.  *  34  St.  at  L.  1251.  §  9;   Pierce's 

Ann.  502.  Pierce's  Fed.  Code,  §  7336,  Fed.    Code,    §    8815;     McKnight    v. 

D.  C.  R.  S..  §  780;   U.  S.R.  S.,  §  4912,  Metal    Volatilization    Co.,    128   Fed. 

5   Fed.   St.   Ann.   505;    Pierce's   Fed.  51. 

Code.    §   8777;    McKniglit    v.    Metal  6  Ibid. 
Volatilization   Co.,   128    Fed.  51. 


§    69]     COURT    OF    APPEALS    OF    DISTRICT    OF    COLUMBIA.         267 

pellant  shall  give  notice  thereof  to  the  Commissioner, 
and  file  in  the  Patent-Office,  within  such  time  as  the  commis- 
sioner shall  appoint,  his  reasons  of  appeal,  specifically  set 
forth  in  writing."6  "The  court  shall,  before  hearing  such 
appeal,  give  notice  to  the  Commissioner  of  the  time  and 
place  of  the  hearing,  and  on  receiving  such  notice  the  Com- 
missioner shall  give  notice  of  such  time  and  place  in  such 
manner  as  the  court  may  prescribe,  to  all  parties  who  appear  to 
be  interested  therein.  The  party  appealing  shall  lay  before 
the  court  certified  copies  of  all  the  original  papers  and  evidence 
in  the  case,  and  the  Commissioner  shall  furnish  the  court  with 
the  grounds  of  his  decision,  fully  set  forth  in  writing,  touching 
all  the  points  involved  by  the  reasons  of  appeal.  And  at  the 
request  of  any  party  interested,  or  of  the  court,  the  Commis- 
sioner and  the  examiners  may  be  examined  under  oath,  in  ex- 
planation of  the  principles  of  the  thing  for  which  a  patent  is 
demanded/'  7  "The  court,  on  petition,  shall  hear  and  determine 
such  appeal,  and  revise  the  decision  appealed  from  in  a  summary 
way,  on  the  evidence  preduced  before  the  Commissioner,  at 
such  early  and  convenient  time  as  the  court  may  appoint ;  and 
the  revision  shall  be  confined  to  the  points  set  forth  in  the  rea- 
sons of  appeal.  After  hearing  the  case  the  court  shall  return 
to  the  Commissioner  a  certificate  of  its  proceedings  and  de- 
cision, which  shall  be  entered  of  record  in  the  Patent-Office,  and 
shall  govern  the  further  proceedings  in  the  case.  But  no  opin- 
ion or  decision  of  the  court  in  any  such  case  shall  preclude  any 
person  interested  from  the  right  to  contest  the  validity  of  such 
patent  in  any  court  wherein  the  same  may  be  called  in  ques- 
tion. "8  The  statute  authorizing  such  appeals  is  constitutional." 
It  does  not  repeal10  the  prior  statutes  authorizing  subsequent 
bill  in  equity  to  compel  the  issue  of  patents11  and  for  relief 
against  interfering  patents,12  which  are  discussed  in  a  subse- 

6TT.  S.  R.   S.,  §   4912,  5  Fed.  St.  Fed.   51;    Dover   v.   Greenwood,   14.1 

Ann.  505,  Pierce's  Fed.  Code,  §  8777.  Fed.   136. 

7  1'.  S.   R.   S..   §  4913,   5   Fed.  St.  »U,  S.  R.  S..  §  4915.  5   Fed.  St. 
Ann.  500,  Pierce's  Fed.  Code;  §  8778.  Ann.      507;      Pierce's      Fed.      Code, 

8  U.  S.  R.  S..  §  4914,  Pierce's  Fed.  §  8780. 

Code,  §  8779.  12  U.  S.  R.  S.,  §  4918,  5  Fed.  St. 

9  1'.  S.  v.  Duell,   172  U.  S.  576.  Ann.  526. 

10  McKnight  v.  Metal  V.  Co.,  128 


9 


208  ORIGINAL  JURISDICTION.  [§    70 

quent  section  of  this  work.13  Upon  appeals  to  the  Court  of 
Appeals  from  the  District  of  Columbia  in  interference  cases, 
the  question  in  issue  is  merely  the  priority  between  the  two 
inventors,  and  whether  either  of  them  was  the  original  defend- 
ant is  not  to  he  determined.14 

§  70.  Jurisdiction  of  District  Court  of  Porto  Rico.  The 
District  Court  of  the  United  States  for  Porto  Rico  has  the  ordi- 
nary Jurisdiction  of  the  District  Courts  of  the  United  States. 
It  has  jurisdiction  over  all  controversies  where  the  parties,  or 
cither  of  them-,  are  citizens  of  the  United  States,  or  citizens  or 
subjects  of  a  foreign  State  or  States ;  wherein  the  matter  in  dis- 
pute exceeds,  exclusive  of  interest  or  costs,  the  sum  or  value  of 
$1,000.1  This  includes  a  suit  between  two  subjects  of  a  foreign 
government.2  It  has  not  jurisdiction  over  controversies  in 
which  any  litigant  on  either  side  is  a  citizen  of  the  United 
States  or  a  subject  of  a  foreign  country,  such  as  a  suit  where 
the  sole  plaintiff  is  a  citizen  of  Porto  Rico,  and  one  or  more  of 
the  defendants  are  citizens  of  the  United  States  or  aliens.3 
The  laws  of  the  United  States  relating  to  appeals,  writs  of 
error  and  certiorari  which  apply  to  the  Supreme  Courts  of  the 
Territories  and  those  relating  to  the  removal  of  causes 
and  other  matters  and  proceedings  as  between  the 
courts  of  the  United  States  and  the  courts  of  the 
several  States,  govern  in  such  matters  and  persons,  as 
between  the  District  Court  of  the  United  States  and 
the  courts  of  Porto  Rico.4  The  Supreme  and  District  courts 
of  Porto  Rico,  and  the  judges  thereof,  may  grant  writs  of 
habeas  corpus,  in  all  cases  in  which  the  same  can  be  made  by 
the  judges  of  the  District  Courts  of  the  United  States.5  The 
District  Court  of  the  United  States  for  Porto  Rico  is  not  a  con- 
stitutional court  of  the  United  States.6  Its  authority  emanates 
wholly  from  Congress,  under  the  sanction  of  its  power  to  govern 
territory  occupying  the  relation  that  exists  between  Porto  Rico 
and  the  United  States.7    When  Congress  has  not  legislated  upon 

13  Infra.  §   147.  3  Quebas  v.  Cuebas.  223  U.  S.  376, 

WWheaton    v.    Kendall.    85    Fed.  56  L.  ed.  476. 

'till.  4  31  St.  at  L.  84,  85,  953. 

§  70.     13]   St.  at  L.  77.  St.  85.  5  31    St.   at  L.   86. 

2 £)rtega   v.   Darga,  202  U.  S.  339,  jjRoipeu   v.  Todd.  206   U.  S.  358, 

50   L.  cd.   1055.  :,1   L.  ed.  1093. 

1  Ibid. 


§    71]  DISTRICT  COURT  OF  HAWAII.  269 

the  subject,  the  local  law  of  Porto  Rico  remains  in  force."  The 
statute  laws  of  the  United  States  not  locally  inapplicable  have 
the  same  force  and  effect  in  Porto  Rico  as  in  the  United  States, 
except  the  revenue  law.9  It  is  subject  to  the  provisions  of 
the  Revised  Statutes  10  providing  for  the  surrender  of  fugitive 
criminals  by  Governors  of  Territories.11  The  Employers'  Lia- 
bility Act 12  and  the  Safety  Appliance  Acts,13  the  there  in  force. 
The  sections  of  the  Revised  Statutes  regulating-  bills  of  excep- 
tions apply  to  the  District  ( 1ourt  of  the  United  States  for  Porto 
Rico.14  It  is  undetermined  whether  the  provisions  of  the  Code 
of  Civil  Procedure  of  Porto  Rico  upon  that  subject  apply  to 
that  court.15 

§  71.  Jurisdiction  of  District  Court  of  Hawaii.  The  Dis- 
trict Court  of  Hawaii  has  jurisdiction  of  all  cases  cognizable  in 
a  District  Court  of  the  United  States,  and  it  proceeds  therein 
in  the  same  manner  as  a  District  Court  of  the  United  States. 
The  laws  of  the  United  States  relating  to  juries  and  jury  trials 
are  applicable  to  this  court.  The  laws  of  the  United  States, 
relating  to  appeals,  writs  of  error,  removal  of  causes,  and 
other  matters  and  proceedings,  as  between  the  State  and  Federal 
courts,  govern  in  such  matters  and  proceedings  between  the 
courts  of  the  United  States  and  the  courts  of  the  Territory 
of  Hawaii,1  Until  the  Act  of  June  14,  1900,  which  formally 
incorporated  the  Territory  of  Hawaii,2  there  was  no  right  to 
a  grand  jury,  nor  to  the  unanimous  verdict  of  a  petit  jury,  in 
Hawaii.3 

8  ibid.  14  See  U.  S.  R.  S.,  §  9*53  j   Guar- 

9  Act  of  April  12,  1900,  31  St.  at       dian  Assurance  Co.  v.  Quintana,  227 
L.  7780,  Ch.  191,  §  14.  U.  S.  100.  57  L.  ed.  — . 

10  U.  S.  R.  S.,  §  5278.  15  Ibid.,  227  U.  S.  100,  105,  57  L. 
HKopel    v.    Bingham,    211    U.    S.       ed.  — . 

4G8,  53  L.  ed.  286.  §  71.     131   St.  at  L.   158. 

12  Act  of  April  22,  1908,  35  St.  at  2  31  St.  at  L.  141.     See  §§  5  and 
L.  65.  291   Ch.  149;   Am.  R.  R..Co.       83. 

of   Porto   Rico   v.   Birch,  224   U.   S.  3  Hawaii   v.   Mankichi.    190    U.   S. 

547.  56  L.  ed.  879.  197,  23  Sup.  Ct.  787,  47  L.  ed.  1016. 

13  Act   of   March    2.    1893,   27    St.  See  Dorr  v.  U.  S..  195  0.  S.  138,  24 
at  L.  531,  Ch.  196;  Act  of  April       ,  Sup.  Ct.  808,  49  L.  ed.  129. 

1896,  29  St.  at  L.  85:  Act  of  March 
2,  1903,  St.  at  L.  ;  Am.  R.  R. 
Co.  of  Porto  Rico  v.  Didricksen,  227 
U.  S.   145,  57   L.  ed.  — . 


270 


ORIGINAL   JURISDICTION. 


[§  T2 


§  72.  Jurisdiction  of  the  Supreme  Court  and  other 
courts  of  the  Philippine  Islands.  The  Acts  of  the  Philippine 
Commission  provide:  "Courts  of  justice  shall  be  maintained  in 
every  province  in  the  Philippine  Islands  in  which  civil  govern- 
ment is  established;  which  courts  shall  be  open  for  the  trial  of 
all  causes  proper  for  their  cognizance,  and  justice  shall  be 
therein  impartially  administered  without  corruption  or  unneces- 
sary delay."  *  "The  judicial  power  of  the  Government  of  the 
Philippine  Islands  shall  be  vested  in  a  Supreme  Court,  Courts 
of  First  Instance,  and  courts  of  justices  of  the  peace,  together 
with  snch  special  jurisdictions  of  municipal  courts  and  other 
special  tribunals  as  now  are  or  hereafter  may  be  authorized 
by  law.  The  two  courts  first  named  shall  be  courts  of  record,"  2 
"The  interlocutory  jurisdiction  referred  to  in  the  previous  sec- 
tions of  this  chapter  shall  be  held  to  include  the  hearing  of  all 
motions  for  appointment  of  receiver,  for  temporary  injunction- 
and  for  all  other  orders  of  the  court  which  are  not  final  in  then- 
character  and  do  not  involve  a  decision  of  the  case  pending  upon 
its  merits.  The  interlocutory  jurisdiction  shall  also  include  the 
hearing  of  petitions  for  the  writ  of  habeas  corpus,  applications 
for  bail,  the  holding  of  preliminary  examinations,  and  such 
orders  in  criminal  causes  as  do  not  involve  a  final  sentence  of 
conviction  or  judgment  of  acquittal.  The  interlocutory  juris- 
diction shall  also  include  the  power  of  appointing  notaries 
public,  as  provided  in  section  thirty-three  hundred  and  seven  ty- 


§  72.  1§  2160,  Compilation  Acts 
of  the  Philippine  Commission  1008, 
Part  VIII.  the  Judiciary,  Title  39, 
Gh.  207. 

2§  2161,  Compilation  Acts  of  the 
1'hilippine  Commission  1008,  Part 
VIII.  the  Judiciary,  Title  30,  Ct. 
207.  See  Act  of  July  1,  1902  (32 
St.  at  L.  691,  695).  ''Chap.  1369  — 
An  Act  temporarily  to  provide  for 
the  administration  of  the  affairs  of 
civil  government  in  the  Philippine 
islands,    and    for    other    purposes." 

"§  9.  That  the  Supreme  Court  and 
the   court   of    first    instance    of    the 


Philippine  Islands  shall  possess  and 
exercise  jurisdiction  as  heretofore 
provided  and  such  additional  juris- 
diction as  shall  hereafter  be  pre- 
scribed by  the  government  of  said 
Islands,  subject  to  the  power  of  said 
government  to  change  the  practice 
and  method  of  procedure.  The  mu- 
nicipal courts  of  said  Islands  shall 
possess  and  exercise  jurisdiction  as 
heretofore  provided  by  the  Phillip- 
pine  Commission,  subject  in  all  mat- 
ters to  such  alteration  and  amend- 
ment as  may  be  hereafter  enacted 
by  law." 


§  72] 


COURTS  OF  THE  PHILIPPINES. 


271 


seven  hereof."3  "The  Supreme  Court  shall  consist  of  a  Chief 
Justice  and  six  associate  judges,  any  five  of  whom  when  con- 
vened shall  form  a  quorum,  and  may  transact  any  of  the  busi- 
ness of  the  court;  but  in  the  absence  of  a  quorum  the  member 
or  members  present  may  adjourn  the  court  from  time  to  time 
with  the  same  effect  as  if  all  were  present.  The  concurrence 
of  at  least  four  members  of  the  court  shall  be  necessary  to  pro- 
nounce a  judgment.  The  word  'judges7  or  "judges  of  the 
Supreme  Court  when  used  in  this  title  shall  include  the  Chief 
.Justice."4  "The  Supreme  Court  shall  sit  in  banc  as  a  body 
composed  of  all  its  members,  and  the  Chief  Justice  shall  be  the 
presiding  officer  thereof.  In  case  of  his  absence  at  a  session 
of  the  court,  the  judge  present  next  in  seniority  to  the  Chief 
Justice  shall  preside.  The  seniority  of  the  associate  judges  shall 
be  determined  by  the  dates  of  their  respective  commissions."  5 
'The  Supreme  Court  shall  have  original  jurisdiction  to  issue 
writs  of  mandamus,  certiorari,  prohibition,  habeas  corpus,  and 
quo  warranto  in  the  cases  and  in  the  manner  prescribed  in  title 
forty-one  hereof,  and  to  hear  and  determine  the  controversies 
thus  brought  before  it,  and  in  other  cases  provided  by  law." 
"The  Supreme  Court  shall  have  appellate  jurisdiction  of  all 
actions  and  special  proceedings  properly  brought  to  it  from 
Courts  of  First  Instance,  and  from  other  tribunals  from  whose 
judgment  the  law  shall  specially  provide  an  appeal  to  the  Su- 
preme Court."7  "The  Supreme  Court  shall  have  power  to 
issue  writs  of  certiorari  and  all  other  auxiliary  writs  and  pro- 
cess necessary  to  the  complete  exercise  of  its  original  or  appel- 
late jurisdiction."8    "There  shall  be  in  each  province  a  Court  of 


3§  2164  {d),  Compilation  Acts  of 
the  Philippine  Commission  1008, 
Part  VIII.  the  Judiciary,  Title  39, 
Ch.  207. 

4§  2169,  Compilation  Acts  of  the 
Philippine  Commission  1908,  Part 
VIII.  the  Judiciary,  Title  39,  Ch. 
208. 

5§  2171,  Compilation  Acts  of  the 
Philippine  Commission  1908.  Part 
VIII.  the  Judiciary.  Title  39,  Ch. 
208. 

6§  2177,  Compilation  Acts  of  the 
Philippine    Commission    1908,    Part 


VIII.  the  Judiciary,  Title  39,  Ch. 
208.  See  chapters  252  and  253  and 
cases  there  cited. 

7  §  2178,  Compilation  Acts  of  the 
Philippine  Commission  1908,  Part 
VIII.  the  Judiciary,  Title  39,  Ch. 
208.  U.  S.  v.  Atien/.a,  1  Phil.  Rep. 
736.  See,  also,  chapter  251  and 
cases  there  cited. 

8§  2179,  Compilation  Ms  of  the 
Philippine  Commission  1908.  Part 
VIII.  the  Judiciary,  Title  39,  Ch. 
208. 


272  ORIGIN"  AI.    JURISDICTION.  [§     72 

First  Instance,  in  each  of  which  a  judge  shall  preside.  Each 
judge  shall  preside  in  all  Courts  of  First  Instance  in  his  judi- 
cial district,  which  -hall  consist  of  such  provinces  as  shall  be 
by  law  designated  to  constitute  such  judicial  district.  But  this 
section  shall  not  apply  to  the  city  of  Manila."9  "There  shall 
he  one  Court  of  First  Instance  for  the  city  of  Manila,  with 
three  judges  who  shall  preside  in  such  court  in  separate  court 
rooms.  The  judges  of  said  court  may  be  removed  by  the  Gov- 
ernor-General, by  and  with  the  approval  of  the  Commission. 
Actions  brought  in  the  Cottrt  of  First  Instance  for  the  city  of 
Manila  shall  be  equally  apportioned  for  trial  among  the  judges 
thereof  in  accordance  with  rules  to  be  made  by  the  judges  of  the 
Supreme  Court.  Any  action  apportioned  to  one  judge  may  be 
tried  by  another  judge  when  more  convenient  to  the  judges.''  10 
"The  jurisdiction  of  Courts  of  First  Instance  shall  be  of  two 
kinds:  (a\  Original:  and  (b)  Appellate."'11  "Courts  of  First 
Instance  shall  have  original  jurisdiction:  (a)  In  all  civil  actions 
in  which  the  subject  of  litigation  is  not  capable  of  pecuniary 
estimation:  (b  )  In  all  civil  actions  which  involve  the  title  to 
or  possession  of  real  property,  or  any  interest  therein,  or  the 
legality  of  any  tax,  impost,  or  assessment,  except  actions  of 
forcible  entry  into  and  detainer  of  lands  or  buildings,  original 
jurisdiction  of  which  is  by  law  conferred  upon  courts  of  justice 
of  the  peace;  (c)  In  all  case-  in  which  the  demand,  exclusive 
of  interest  or  the  value  of  the  property  in  controversy,  amount- 
to  two  hundred  pesos  or  more:  (d)  In  all  actions  in  admiralty 
and  maritime  jurisdiction,  irrespective  of  the  value  of  the  prop- 
erty in  controversy  or  the  amount  of  the  demand;  (e)  In  all 
matters  of  probate,  both  of  testate  and  intestate  estates,  appoint- 
ment of  guardians,  trustees,  and  receivers,  and  in  all  actions 
for  annulment  of  marriage  and  in  all  such  special  cases  and 
proceedings  a>  are  not  otherwise  provided  for;  (f)  In  all  crimi- 
nal cases  in  which  a  penalty  of  more  than  six  months'  imprison- 
ment or  a  fine  exceeding  two  hundred  pesos  may  be  imposed ; 

9§  2108.  Compilation  Acts  of  the  209.     Garcia  v.  Ambler.  4  Phil.  Rep. 

Philippine    Commission    190S,    Part  81. 

VIII.    the    Judiciary.    Title    39,    Ch.  n  §  2204.  Compilation  Acts  of  the 

209.  Philippine    Commission    190S,    Part 

10  §  2199,  Compilation  Acts  of  the  VITI-    the   Judiciary,   Title   39,    Ch. 

Philippine    Commission    1908.    Part  209- 
VIII.   the   Judiciary,    Title    39,   Ch. 


§    72]  COURTS  OF  THE  PHILIPPINES.  27^ 

(g)   Said  courts  and  their  Judges,  or  any  of  them,  shall  have 
power  to  issue  writs  of  injunction!,  mandamus,  certiorari,  pro- 
hibition, quo  warranto,  and  habeas  corpus  in  their  respective 
provinces  and  districts,  in  the  manner  provided  in  title  fortv- 
one  hereof;   (Ji  )   Of  all  crimes  and  offenses  committed  on  the 
high  seas  or  beyond  the  jurisdiction  of  any  country,  or  with- 
in any  of  the  navigable  waters  of  the  Philippine  Islands,  on 
board  a  ship  or  water  craft  of  any  kind  registered  or  licensed 
in  the  Philippine  Islands  in  accordance  with  the  laws  thereof. 
The   jurisdiction    herein    conferred    may   be   exercised    by    the 
Court  of  First  Instance  in  any  province  into  which  the  ship 
or  water  craft  upon  which  the  crime  or  offense  was  committed 
shall  come  after  the  commission  thereof:     Provided,  neverthe- 
less, That  the  court   first   lawfully  taking  cognizance   thereof 
shall   have   jurisdiction   of   the   same    to   the    exclusion   of    all 
other  courts  in  the  Philippine  Islands,"  12     "Courts  of  First 
Instance  shall  have  appellate  jurisdiction  over  all  causes  aris- 
ing in  justices'  and  other  inferior  courts  in  their  respective  pro- 
vinces/1 13     "A  judge  of  First  Instance  shall  have  power  to 
issue  writs  of  injunction   and   to  make  orders  appointing  re- 
ceivers in  causes  pending  in  the  Court  of  First  Instance  with- 
in  his   district,    and    all    other   preliminary   and    interlocutory 
orders,  when  he  is  within  the  district  but  without  the  province; 
and  to  hear  and  determine,  when  within  the  district  but  without 
the  province,  any  interlocutory  motion  or  issue  after  due  and 

12  §  2205,  Compilation  Acts  of  the  mentioned     in     this     section.      The 

Philippine    Commission    1908,    Part  phrase  "admiralty  and  maritime  ju- 

VITI.    the    Judiciary,    Title    .31).    Ch.  risdiction"   did  not   put   in   force    in 

200;  U.  S.  v.  Sweet.  1  Phil.  Rep.  18;  the    Philippines    the    law,    practice, 

Legarda  v.  Valdez,  1  Phil.  Rep.  14G;  and  procedure  in  force  in  admiralty 

U.   S.   v.   Fowler,    1    Phil.   Rep.  614;  courts    in    the    United    States,   Ivan- 

U.  S.  v.  Dasal,  3  Phil.  Rep.  G;  Bene-  cich    v.    Odlin.    1     Phil.    Rep.    284: 

dicto   v.   De   la    Rama,   3   Phil.   Rep.  Heath    v.    Steamer   ,-San    Nicholas.'* 

34;   Springer  v.  Odlin,  3  Phil.  Rep.  7  l'hil.  Rep.  532.     For  annulment  of 

344:  Artacho  v.  Provincial  Board  of  marriage  and  divorce  see   Benedicto 

Pangasinan,  4  Phil.  Rep.  070;  Oeh-  v.    De    la    Rama,    3    Phil.    Pep.    34; 

lers   v.   Hartwig,   5   Phil.   Rep.  487;  [banez  v.  Ortiz.  5  Phil.  Rep.  325. 
Castano  v.   Lobingier,   7    Phil.    Rep.  13  §  2200.  Compilation  Acts  of  the 

91;    Rafferty   v.  Judge  of   First  Tn-  Philippine    Commission     1908,    Part 

stance.  7   Phil.  Rep.  104.     See,  also,  VI II.    the    Judiciary,    Title    39,    Ch. 

chapters    238    and    250,    and    cases  209. 
there  cited   under  different  subjects 
Fed.  Prac.  Vol.  I.— 18. 


274  ORIGINAL    JURISDICTION.  [§    72 

reasonable  notice  to  the  parties ;  but  all  final  hearings  shall 
be  had  within  the  province  unless  the  parties  by  their  counsel 
consent  in  writing  to  a  hearing  at  a  place  not  within  the 
province.  On  the  filing  of  a  petition  for  the  writ  of  habeas 
corpus  or  for  release  upon  bail  or  reduction  of  bail  in  any  Court 
of  First  Instance,  the  hearing  may  be  tried  at  any  place  in  the 
judicial  district  which  the  judge  shall  deem  convenient.  All 
criminal  trials  must  be  tried  at  the  place  designated  in  the 
law  as  the  place  at  which  the  court  having  jurisdiction  thereof 
shall  be  held,  unless  the  Secretary  of  Finance  and  Justice  shall 
otherwise  order,  as  provided  in  section  twenty-two  hundred 
and  twenty-seven  hereof." 14  "In  every  province  in  which 
there  now  is,  or  shall  hereafter  be  established,,  a  Court  of 
First  Instance,  courts  of  justices  of  the  peace  shall-  be  main- 
tained in  every  organized  municipality."  15  ''In  all  civil  actions 
including  those  mentioned  in  sections  twenty-six  hundred  and 
ninety  to  twenty-seven  hundred,  inclusive,  hereof,  arising  in 
his  municipality  and  not  exclusively  cognizable  by  the  Court 
of  First  Instance,  the  justice  of  the  peace  shall  have  exclusive 
original  jurisdiction  where  the  value  of  the  subject-matter  or 
amount  of  the  demand  does  not  exceed  two  hundred  pesos,  ex- 
clusive of  interest  and  costs;  and  where  such  value  or  demand 
exceeds  two  hundred  pesos  but  is  less  than  six  hundred  pesas  the 
justice  of  the  peace  shall  have  jurisdiction  concurrent  with  the 
Court  of  First  Instance.  In  forcible  entry  and  detainer  pro- 
ceedings the  justice  shall  have  original  jurisdiction  but  he  may 
receive  evidence  upon  the  question  of  title  therein  solely  for 
the  purpose  of  determining  character  and  extent  of  possession 
and  damages  for  detention.  A  justice  of  the  peace  shall  have  no 
jurisdiction  to  adjudicate  questions  of  title  to  real  estate  or  any 
interest  therein,  and  whenever  a  case  requiring  such  adjudica- 
tion is  brought  before  him  it  shall  be  his  duty,  upon  discovering 
the  same,  to  suspend  further  proceedings  therein  and  certify 
the  cause  forthwith  to  the  Court  of  First  Instance.  The  juris- 
diction of  a  justice  of  the  peace  shall  not  extend  to  civil  actions 

14  §  2229,  Compilation  Acts  of  the  15  §   2234,  Compilation  Acts  of  the 

Philippine    Commission    1008.    Part  Philippine    Commission    1908,    Part 

VIII.    the    Judiciary,    Title    39,    Ch.  VIII.    the    Judiciary.    Title    39,    Ch. 

209.      V.   S.    v.   Tan    Bauco.   4    Phil.  210. 
Pep.  325. 


§    72]  COURTS  OF  THE  PHILIPPINES.  275 

in  which  the  subject  of  litigation  is  not  capable  of  pecuniary 
estimation,  except  in  forcible  entry  and  detainer  cases;  nor  to 
those  which  involve  the  legality  of  any  tax,  impost  or  assess- 
ment; nor  to  actions  involving  admiralty  or  maritime  juris- 
diction ;  nor  to  matters  of  probate,  the  appointment  of  guar- 
diens,  trustees,  or  receivers ;  nor  to  actions  for  annulment  of 
marriage."  16  "The  territorial  jurisdiction  of  a  justice  of  the 
peace,  except  in  the  case  of  ex  officio  justices  and  in  other 
special  cases  provided  by  existing  law,  shall  be  coextensive  with 
his  municipality,  and  the  civil  process  of  his  court  shall  not 
run  beyond  the  same  except  to  summon  a  defendant  impleaded 
with  one  who  resides  and  has  been  served  therein  as  provided 
in  section  twenty-four  hundred  and  seventy-nine  hereof. 
Forcible  entry  and  detainer  actions  shall  be  brought  in  the 
municipality  where  the  subject-mater  thereof  is  situated.  All 
other  proceedings  shall  be  instituted  in  the  municipality  where- 
in a  defendant  resides  or  may  be  served  with  summons."'17 
"Justices  of  the  peace,  except  in  the  city  of  Manila,  shall  have 
original  jurisdiction  to  try  parties  charged  with  misdemeanors, 
offenses,  and  infractions  of  municipal  ordinances,  arising  with- 
in the  municipality,  in  which  the  penalty  provided  by  law  does 
not  exceed  six  months'  imprisonment  or  a  fine  of  two  hundred 
pesos,  or  both  such  imprisonment  and  fine." 18  "Concurrent 
jurisdiction  is  hereby  conferred  upon  the  justices  of  the  peace 
for  the  municipalities  of  Iloilo  and  Buenavista  over  causes  aris- 
ing in  the  barrio  now  known  as  Sanao,  on  the  Island  of 
Guimaras,  in  the  Province  of  Iloilo,  anything  in  existing  law 
to  the  contrary  notwithstanding:  Provided,  however,  That  the 
justice  of  the  peace  first  acquiring  jurisdiction  over  any  cause 
shall  have  exclusive  jurisdiction  thereof." 19  "The  governor 
of  the  Province  of  Palawan  is  hereby  made  ex  officio  justice 
of  the  peace  with  authority  to  perform  all  the  duties  of  a 
justice  of  the  peace  throughout  the  whole  of  the  Province  of 

16  §  2237,  Compilation  Acts  of  the  18  §  2239,  Compilation  Acts  of  the 
riiilippine  Commission  1908,  Part  Philippine  Commission  190S,  Part 
VIII.  the  Judiciary,  Title  39,  Ch.  VIII.  the  Judiciary,  Title  39,  Ch. 
210.  210. 

17  §  2238,  Compilation  Acts  of  the  19  §  2240,  Compilation  Acts  of  the 
Philippine  Commission  1908,  Part  Philippine  Commission  1908,  Part 
VIII.  the  Judiciary,  Title  39,  Ch.  VIII.  the  Judiciary,  Title  39,  Ch. 
210.  210. 


276  ORIGINAL    JURISDICTION.  [§    72 

Palawan.  His  jurisdiction  as  justice  of  the  peace  shall  be 
concurrent  in  every  municipality  and  in  every  part  of  said 
province  with  that  of  the  proper  justice  of  the  peace  of  the 
municipality.  The  fees  that  would  accrue  to  a  justice1  of  the 
peace  shall,  in  all  cases  where  the  provincial  governor  acts  as 
justice  of  the  peace,  be  covered  into  the  treasury  of  the  province 
for  the  general  purposes  of  the  province."20  ''The  governor 
of  the  Province  of  Mindoro  is  hereby  made  ex  officio  justice  of 
the  peace  with  authority  to  perform  all  the  duties  of  a  justice 
of  the  peace  throughout  the  whole  of  the  Province  of  Mindoro. 
His  jurisdiction  as  justice  of  the  peace  shall  be  concurrent 
in  every  municipality  and  in  every  part  of  said  province  with 
that  of  the  proper  justice  of  the  peace  of  the  municipality. 
The  fees  that  would  accrue  to  a  justice  of  the  peace  shall,  in 
all  cases  where  the  provincial  governor  acts  as  justice  of  the 
peace,  be  covered  into  the  treasury  of  the  province  for  the 
general  purposes  of  the  province."21  "The  Governor-General 
is  authorized,  with  the  advice  and  approval  of  the  Philippine 
Commission,  to  appoint  a  justice  of  the  peace  and  auxiliary 
justice  of  the  peace,  from  time  to  time,  for  the  Island  of 
Basilan,  notwithstanding  said  island  has  been  included  within 
the  municipality  of  Zamboanga  by  Act  Numbered  Twenty-one 
of  the  legislative  council  of  the  Moro  Province.  The  justice 
of  the  peace  and  auxiliary  justice  of  the  peace  appointed  by 
virtue  of  this  section  shall  have  jurisdiction  throughout  the 
Island  of  Basilan  to  the  same  extent  and  with  the  same 
effect  as  though  the  Island  of  Basilan  constituted  a  regular 
municipality.  The  justice  of  the  peace  and  auxiliary  justice 
of  the  peace  for  the  municipality  of  Zamboanga  shall  not  have 
jurisdiction  within  the  Island  of  Basilan."22  The  commission 
has  also  passed  statutes  regulating  the  practice  in  these  courts 
in  civil 23  and  criminal  procedure.24     The  power  to  enact  such 

20  §  2241,  Compilation  Acts  of  the  22  §  2243,  Compilation  Acts  of  the 
Philippine  Commission  1908,  Part  Philippine  Commission  1908,  Part 
VIII,  the  Judiciary,  Title  39,  Ch.  VIII.  the  Judiciary,  Title  39,  Ch. 
210.  210. 

21  §  2242,  Compilation  Acts  of  the  23  Ibid.  Title  41,  chaps.  29-275, 
Philippine    Commission    1908.    Part  §§  2403,  3248. 

VHI.    the   Judiciary,   Title   39,   Ch.  24  ibid.  Title   42,   chaps.  276-290, 

210.  §  3249,  3375. 


§    73]  UNITED    STATES    COURT    FOI?    CHINA.  277 

legislation  is  given  by  the  Act  of  July  1,  1002.25  The  Ad 
of  February  6,  1905,  after  providing  for  the  guarantee  by  the 
Philippine  Government  of  the  payment  of  interest  on  certain 
railroad  bonds  and  of  the  security  for  the  same  by  lien  upon  the 
railroad  and  the  company's  other  property,  subsequent  to  the 
mortgage,  under  -which  the  bonds  were  issued,  continues  "The 
Supreme  Court  of  the  Philippine  Islands  shall  have  original 
and  exclusive  jurisdiction  in  all  actions,  proceedings  or  suits 
at  law  or  in  equity  brought  by  the  Philippine  government 
against  any  person  or  corporation  involving  the  construction 
of  this  section  or  any  right  existing  under,  duty  enjoined,  or 
act  prohibited  by  said  section  or  any  contract  made  in  pur- 
suance thereof;  and  jurisdiction  is  hereby  vested  in  the  supreme 
court  to  make  such  order,  to  enter  such  judgment  or  decree 
and  to  take  such  proceedings  in  enforcement  thereof  as  may 
be  proper.  During  the  vacations  of  said  court  the  chief  jur- 
tice  or  any  judge  thereof  shall  have  all  the  power  to  grant 
restraining  orders,  orders  of  injunction,  to  appoint  receivers, 
or  to  do  any  other  act  under  authority  herein  granted,  that  a 
judge  of  a  court  of  general  jurisdiction  may  do  in  the  vacation 
of  court."26  It  also  has  jurisdiction  to  determine  adverse 
claims  to  land.27  The  Constitution  of  the  United  States  does 
not  guarantee  to  the  inhabitants  of  the  Philippine  Islands  the 
right  to  trial  by  jury.28  It  has  been  said  that  this  right  cannot 
exist  until  these  Islands  have  been  by  Congress  formally  in- 
corporated into  the  United  States.29 

§  73.  Jurisdiction  of  the  United  States  Court  for  China. 
The  United  States  Court  for  China  has  exclusive  jurisdiction 
in  all  cases  and  judicial  proceedings  whereof  jurisdiction  might 
on  June  :>0tli,  190G,1  "be  exercised  by  United  States  consuls 
and  ministers  by  law  and  by  virtue  of  treaties  between  the 
United   States  and  China,  except  in  so  far  as  the  said  juris- 

25.S2    St.    at    L.    691.    605;     un-  29  Dorr   v.  U.   S.,   395   U.   S.   138, 

changed   in    this   respect   by   Act   of  '149,  24  Sup.  Ct.  S08,  49  L.  ed.  129. 

February  6,  1905,  Ch.  453,  33  St.  at  §   73.     l  This  jurisdiction  is  shown 

L.  689,  691:     Quoted  supra,  note  2.  in  V.  S.  R.  S.j  §§  4083-4130,  quoted 

26  Ch.  453,  §  4,  33  St.  at  L.  089,  infra;   §    74,    and    the    treaties   with 
091.  China  of  Dec.  31,  184G,  by  Malley's 

27  Ibid.  §  39.  Treaties,  I,  196. 

28  Dorr  v.  U.  S..  195  U.  S.  138,  24 
Sup.  Ct.  808,  49  L.  ed.  129. 


278 


OBIGINAL    .TUKISDK  TloX. 


[§  73 


•  I iction  is  qualified  by  section  two  of  this  act.  The  said  court 
shall  hold  sessions  at  Shanghai,  China,  and  shall  also  hold 
sessions  at  the  cities  of  Canton,  Tientsin,  and  Hongkong,  at 
stated  periods,  the  dates  of  such  sessions  at  each  city  to  he  an- 
nounced in  such  manner  as  the  court  shall  direct,  and  a  session 
of  the  court  shall  he  held  in  each  of  these  cities  at  least  once 
annually.  It  shall  be  within  the  power  of  the  judge,  upon  due 
notice  to  the  parties  in  litigation,  to  open  and  Hold  court  for 
the  hearing  of  a  special  cause  at  any  place  permitted  by  the 
treaties,  and  where  there  is  a  United  States  consulate,  when, 
in  his  judgment,  it  shall  be  required  by  the  convenience  of  wit- 
nesses, or  by  some  public  interest.  The  place  of  sitting  of  the 
court  shall  be  in  the  United  States  consulate  of  each  of  the  cities, 
respectively."  "§  2.  The  consuls  of  the  United  States  in  the 
cities  of  China  to  which  they  are  respectively  accredited  shall 
have  the  same  jurisdiction  as  they  now  possess  in  civil  cases 
where  the  sum  or  value  of  the  property  involved  in  the  contro- 
versy does  not  exceed  five  hundred  dollars  United  States  money 
and  in  criminal  cases  where  the  punishment  for  the  offense 
charged  cannot  exceed  by  law  one  hundred  dollars  fine  or  sixtv 
days'  imprisonment,  or  both,  and  shall  have  power  to  arrest, 
examine,  and  discharge  accused  persons  or  commit  them  to  the 
said  court.  From  all  final  judgments  of  the  consular  court 
either  party  shall  have  the  right  of  appeal  to  the  United  States 
court  for  China :  Provided,  also,  That  appeal  may  be  taken  to 
the  United  States  court  for  China  from  any  final  judgment  of 
the  c<  insular  courts  of  the  United  States  in  Korea  so  long  as  the 
rights  of  extra-territorialitv  shall  obtain  in  favor  of  the  United 
States."  "§  4.  The  jurisdiction  of  the  said  United  States  court, 
both  original  and  on  appeal,  in  civil  and  criminal  matters,  also 
the  jurisdiction  of  the  Consular  courts  in  China,  shall  in  all 
cases  be  exercised  in  conformity  with  said  treaties  and  the  laws 
of  the  United  States  now  in  force  in  reference  to  the  American 
Consular  courts  in  China,  and  all  judgments  and  decisions  of 
said  Consular  courts,  and  all  decisions,  judgments,  and  decrees 
of  the  United  States  court,  shall  be  enforced  in  accordance 
with  said  treaties  ami  laws.  But  in  all  such  cases  when 
such  laws  are  deficient  in  the  provisions  necessary  to  give 
jurisdiction    or    to    furnish    suitable    remedies,    the    common 


73] 


UNITED  STATES  COURT  FOR  CHINA. 


270 


law  and  the  law  as  established  by  the  decisions  of  the  courts 
of  the  United  kStates  shall  be  applied  by  said  court  in  its 
decisions  and  shall  govern  the  same  subject  of  the  terms  of 
any  treaties  between  the  United  States  and  China." 2  The 
provisions  of  the  statute  making  the  common  law  applicable 
to  criminal  offenses,  committed  by  American  citizens  in  China, 
are  construed  as  referring  to  the  common  law  in  force  in 
the  several  American  Colonies  at  the  time  of  their  separation 
from  England,  and  include,  not  only  the  ancient  common  or 
internal  law,  but  also  statutes,  which  had  previously  been  passed 
amendatory  or  in  aid  of  the  common  law.3  Among  these  was 
chapter  24  of  the  Statutes  of  30,  George  II,  enacted  in  17f>7, 
creating  the  offense  of  obtaining  money  or  goods  under  false 
pretenses,  and  subsequent  amendments  to  the  same.4  The 
judicial  authority  of  the  United  States  Court  in  China  is  re- 
stricted to  the  five  ports  mentioned  in  the  treaty  with  that 
nation,5  namely,  Kwang-Chow,  Amoy,  Fuchow,  Ningpo  and 
Shanghai.6  The  jurisdiction  of  Consular  Courts  is  explained 
in  the  succeeding  section.7  The  Chinese  Court  Regulations  of 
1864  promulgated  the  following  rule:  "Civil  actions,  based  on 
written  promise,  contract,  or  instrument,  must  be  commenced 
within  six  years  after  the  cause  of  action  accrues;  others,  with- 
in two."8     Final  decrees  and  judgments  of  this  court  may  be 


2  Act  of  June  30,  1906,  »4  Stat, 
at  L.  814,  Chap.  3934,  "An  Act  cre- 
ating a  United  States  court  for  Chi- 
na and  prescribing  the  jurisdiction 
thereof." 

3  Hiddle  v.  U.  S.,  C.  C.  A.,  156 
Fed.  759.  As  to  the  effect  of  a  plea 
of  former  acquittal,  hased  upon  pro- 
ceedings in  the  former  United  States 
Consular  Court  of  Shanghai,  see 
Price  v.  U.  S..  1.16  Fed.  9:10.  85 
C.  C.  A.  247,  13  Ann.  Cas.  483,  15 
L.R.A.(N.S.)     1272. 

4Biddle  v.  U.  S..  C.  C.  A.,  156 
150  Fed.  950. 

5  See  9  Op.  A.  G.  294. 

6  Treaty  of  Dec.  31,  1840,  Malley's 
Treaties.  T.  196. 

7  Jnfra,  §  74. 

8  Secretary   Bayard   said   concern- 


ing- this:  "I  do  not,  it  is  true,  re- 
gard  this  rule  as  a  statute.  Not  only 
had  Mr.  Burlingame  no  power  to  en- 
act a  statute,  as  such,  but  the  lan- 
guage of  the  rule  shows  that  it  can- 
not be  regarded  as  a  statutory  en- 
actment. It  limits  suits  on  even 
sealed  instruments  to  six  years,  and 
on  unwritten  engagements,  no  mat- 
ter how  solemn  or  how  strongly  evi- 
denced, to  two  years.  It  contains 
no  exception  in  favor  of  minors  or 
persons  under  disability.  It  must 
be  regarded,  therefore,  not  as  a  stat- 
ute covering  civil  limitations  in  all 
their  bearings,  but  as  an  assertion 
that  suits  in  consular  courts  in 
China  are  to  be  limited  as  to  time, 
the  limitation  to  he  adapted  to  the 
social  and  business  conditions  of  the 


280 


ORIGINAL,    JURISDICTION. 


[§  74 


brought  for  review  to  the  Circuit  Court  of  Appeals  for  the 
Ninth  Circuit,  by  appeal  or  writ  of  error,  as  the  case  may  be.9 
Upon  an  appeal  from  this  court,  the  record  in  this  court  should 
show  an  allowance  of  the  appeal.10  Unless  the  appeal  is  allowed 
in  open  court,  a  citation  should  be  issued  and  served,11  and  the 
proceedings  should  conform  in  other  respects  to  those  of  appeals 
to  the  Circuit  Court  of  Appeals. 

§  74.  Jurisdiction  of  the  Consular  Courts.  The     Re- 

vised Statutes  provided  as  follows:  ''To  carry  into  full  effect 
the  provisions  of  the  treaties  of  the  United  States  with  China, 
Japan,  Siein,  Egypt,  and  Madagascar,  respectively,  the  minister 
and  the  consuls  of  the  United  States,  duly  appointed  to  reside 
in  each  of  those  countries,  shall,  in  addition  to  other  powers 
and  duties  imposed  upon  them,  respectively,  by  the  provisions 
of  such  treaties,  respectively,  be  invested  with  the  judicial 
authority  herein  described,  which  shall  appertain  to  the  office 
of  minister  and  consul,  and  be  a  part  of  the  duties  belonging 
thereto,  wherein,  and  so  far  as,  the  same  is  allowed  by  treaty."  x 


period  of  suit.  Tn  tliis  way  we  can 
explain  not  only  the  limitation  of 
two  years  for  unwritten  engage- 
ments, wliicli  in  the  then  immature 
and  unsettled  condition  of  our  busi- 
ness in  China  may  have  been  emin- 
ently proper,  but  the  omission  of  the 
exceptions  I  have  noticed  above.  I 
held,  therefore,  that  Rule  XV.  of  the 
Regulations  of  18G4,  while  not  to  be 
regarded  as  having  the  authority  or 
the  fixedness  of  a  statute,  is  to  be 
viewed  as  a  rule  of  court  expressing 
a  principle  open  to  modification  by 
the  court  that  issued  it.  It  stands 
in  the  same  position  as  do  the  equi- 
ty rules  adopted  by  the  Supreme 
Court  of  the  United  States  and 
courts  of  the  several  States,  not  as 
a  statutory  mandate,  to  remain  in 
force  until  expressly  repealed  or 
modified,  but  as  a  principle  and  reg- 
ulation of  practice  which  it  is  open 
to  the  court  to  expand  or  vary  as 
the  purposes  of  justice  may  require. 


As  to  the  importance  of  your  adopt- 
ing such  a  rule  there  can  be  no 
question.  Were  there  no  such  limi- 
tation required  in  China,  American 
merchants  in  China  might  be  har- 
assed by  old  debts  and  stale  de- 
mands outlawed  in  the  United 
States,  and  their  business  much  im- 
peded. Aside  from  this  the  princi- 
ple that  the  right  of  suit  should  be 
limited  as  to  time,  is  as  essential 
to  public  justice  as  is  the  principle 
that  the  right  of  suit  should  exist 
at  all."  Mr.  Bayard  to  Mr.  Denby, 
April  27,  1887.  Wharton's  Dig., 
§  125.  Vol.  Ill,  Appendix,  pp.  883, 
884. 

9  §  3,  34  St.  at  L.  814.  815,  Jud. 
Code,  §   l:il.  3ti  St.  at  L.  1087. 

10  Steamer  Spark  v.  Lee  Choi 
Chum.    1    Sawyer   713. 

11  Ibid. 

§  74.  1U.  S.  R.  S.,  §  4083,  2 
Fed.  St.  Ann.  819,  Pierce's  Fed. 
Code,    §    4245. 


§  74]  CONSULAR  COURTS.  281 

"The  officers  mentioned  in  the  preceding  sept-ion  are  fully  era- 
powered  to  arraign  and  try,  in  the  manner  herein  provided,  all 
citizens  of  the  United  States  charged  with  offenses  against  law, 
committed  in  such  countries,  respectively,  and  to  sentence  such 
offenders  in  the  manner  herein  authorized;  and  each  of  them 
is  authorized  to  issue  all  such  processes  as  are  suitable  and  nec- 
essary to  carry  this  authority  into  execution."2     "Such  officers 
are  also  invested  with  all  the  judicial  authority  necessary  to 
execute  the  provisions  of  such  treaties,  respectively,  in  regard 
to  civil  rights,  whether  of  property  or  person ;  and  they  shall 
entertain  jurisdiction  in  matters  of  contract,  at  the  port  where, 
or  nearest  to  which,  the  contract  was  made,  or  at  the  port  at 
which,  or  nearest  to  which,  it  was  to  be  executed,  and  in  all 
other  matters,    at   the   port   where,   or  nearest   to   which,    the 
cause   of  controversv   arose,   or   at   least   whore,   or   nearest  to 
which,    the    damage    complained    of    was    sustained,    provided 
such  port  be  one  of  the  posts  at  which  the  United  States  are 
represented   by  consuls.      Such   jurisdiction   shall    embrace   all 
controversies  between  citizens  of  the  United  States,  or  others, 
provided   for  by   such   treaties,   respectively/'3      "Jurisdiction 
in  both  criminal  and  civil  matters  shall,  in  all  cases,  be  exer- 
cised and  enforced  in  conformity  with  the  laws  of  the  United 
States,  which  are  hereby,  so  far  as  is  necessary  to  execute  such 
treates,  respectively,  and  so  far  as  they  are  suitable  to  carry 
the  same  into  effect,  extended  over  all  citizens  of  the  United 
States  in  those  countries,  and  over  all  others  to  the  extent  that 
the  terms  of  the  treaties,  respectively,  justify  or  require.     But 
in  all  cases  where  such  laws  are  not  adapted  to  the  object,  or 
are   deficient   in   the   provisions  necessary   to   furnish    suitable 
remedies,  the  common  law  and  the  law  of  equity  and  admiralty 
shall  be  extended  in  like  manner  over  such  citizens  and  others 
in  those  countries ;  and  if  neither  the  common  law,  nor  the  law 
of  equity  or  admiralty,  nor  the  statutes  of  the  United  States, 
furnish  appropriate  and   sufficient  remedies,   the  ministers   in 
those  countries,  respectively,  shall,  by  decrees  and  regulations 
which  shall   have   the   force  of  law,   supply   such   defects   and 

2U.   S.   R.  S„  §  4084,  2   Fed.  St.  3  U.  S.   R.  S„   §   4085.  2   Fed.   St. 

Ann.  819,  Pierce's  Fed.  Code,  §  4246.       Ann.  819,  Pierce's  Fed.  Code,  §  4247 


282  ORIGINAL    JURISDICTION.  [§    74 

deficiencies.1'* 4  "Each  of  the  consuls  mentioned  in  section 
forty  hundred  and  eighty-three,  at  the  port  for  which  he  is 
appointed,  is  authorized  upon  facts  within  his  own  knowledge, 
or  which  he  has  g'ood  reason  to  believe  true,  or  upon  com- 
plaint made  or  information  filed  in  writing  and  authenticated 
in  such  way  as  shall  be  prescribed  by  the  minister,  to  issue 
his  warrant  for  the  arrest  of  any  citizen  of  the  United  States 
cbarged  with  committing  in  the  country  an  offense  against 
law;  and  to  arraign  and  try  any  such  offender;  and  to  sentence 
him  to  punishment  in  the  manner  herein  prescribed."5  "The 
consuls  and  commercial  agents  of  the  United  States  at  islands 
or  in  countries  not  inhabited  by  any  civilized  people,  or  recog- 
nized by  any  treaty  with  the  United  States,  are  authorized  to 
try,  hear,  and  determine  all  cases  in  regard  to  civil  rights, 
whether  of  person  or  property,  where  the  real  debt  or  damages 
do  not  exceed  the  sum  of  one  thousand  dollars,  exclusive  of 
costs,  and  upon  full  hearing  of  the  allegations  and  evidence  of 
both  parties,  to  give  judgment  according  to  the  laws  of  the 
United  States,  and  according-  to  the  equity  and  right  of  the 
matter,  in  the  same  manner  as  justices  of  the  peace  are  now  au- 
thorized and  empowered  where  the  United  States  have  exclu- 
sive jurisdiction.  They  are  also  invested  with  the  powers  con- 
ferred by  the  provisions  of  sections  forty  hundred  and  eighty- 
six  and  forty  hundred  and  eighty-seven  for  trial  of  offenses 
or  misdemeanors."6  "Any  consul  when  sitting  alone  may  also 
decide  all  cases  in  which  the  fine  imposed  does  not  exceed  five 
hundred  dollars,  or  the  term  of  imprisonment  does  not  exceed 
ninety  days ;  but  in  all  such  cases,  if  the  fine  exceeds  one  hun- 
dred dollars,  or  the  term  of  imprisonment  for  misdemeanor 
exceeds  sixty  days,  the  defendants  or  any  of  them,  if  there  be 
more  than  one,  may  take  the  case,  by  appeal,  before  the  min- 
ister, if  allowed  jurisdiction,  either  upon  errors  of  law  or  mat- 
ters of  fact,  under  such  rules  as  may  be  prescribed  by  the  min- 
ister for  the  prosecution  of  appeals  in  such  cases."7  "Capital 
cases  for  murder  or  insurrection  against  the  government  of 
either   of   the    countries    hereinbefore    mentioned,    by    citizens 

*U.   S.  R.  S.,   §  4086,  2   Fed.  St.  H-.  S.   R.  S..   §  4088,  2   Fed.   St. 

Ann.  820,  Pierce's  Fed.  Code,  §  4248.  Ann.  820,  Pierce's  Fed.  Code,  §  4250. 

5  U.   S.  R.   S..   §   4087.   2   Fed.  St.  7  U.   S.   R.   S.,   §   4089,  2   Fed.  St. 

Ann.  820,  Pierce's  Fed.  Code,  §  4249.  Ann.  821,  Pierce's  Fed.  Code.  §  4251. 


8    74]  CONSULAR   COURTS. 


2sr 


Q 


of  the  United  States,  or  for  offenses  against  the  public  peace 
amounting  to  felony  under  the  laws  of  the  United  States,  may 
be  tried  before  the  minister  of  the  United  States  in  the  country 
where   the  offense  is  committed  if  allowed  jurisdiction;   and 
every  such  minister  may  issue  all  manner  of  writs,  to  prevent 
the  citizens  of  the  United  States  from  enlisting  in  the  military 
or  naval  service  of  either  of  the  said  countries,  to  make  war 
upon  any  foreign  power  with  whom  the  United  States  are  at 
peace,  or  in  the  service  of  one  portion  of  the  people  against 
any  other  portion  of  the  same  people ;  and  he  may  carry  out  this 
power  by  a  resort  to  such  force  belonging  to  the  United  States, 
as  may  at  the  time  be  within  his  reach."8     "Each  of  the  min- 
isters  mentioned   in,   section   forty   hundred    and   eighty -three 
shall,  in  the  country  to  which  he  is  appointed,  be  fully  author- 
ized to  hear  and  decide  all  cases,  criminal  and  civil,  which  may 
come  before  him,  by  appeal,  under  the  provisions  of  this  Title, 
and  to  issue  all  processes  necessary  to  execute  the  power  con- 
ferred upon  him ;  and  he  is  fully  empowered  to  decide  finally 
any  case  upon  the  evidence  which  comes  up  with  it,  or  to  hear 
the  parties  further,  if  he  thinks  justice  will  be  promoted  there- 
by ;  and  he  may  also  prescribe  the  rules  upon  which  new  trials 
may  be  granted,  either  by  the  consuls  or  by  himself,  if  asked 
for  upon  sufficient  grounds."  9    "In  all  cases,  criminal  and  civil, 
the  evidence  shall  be  taken  down  in  writing  in  open  court,  un- 
der such  regulations  as  may  be  made  for  that  purpose ;  and  all 
objections  to  the  competency  or  character  of  testimony  shall  be 
noted,  with  the  ruling  in  all  such  cases,  and  the  evidence  shall 
be  part  of  the  case."10     "It  shall  be  the  duty  of  the  ministers 
and   the  consuls  in  the  countries  mentioned  in  section  forty 
hundred  and  eighty-three,  to  encourage  the  settlement  of  con- 
troversies of  a  civil  character,  by  mutual  agreement,  or  to  sub- 
mit them  to  the  decision  of  referees  agreed  upon  by  the  par- 
ties; and  the  minister  in  each  country  shall  prepare  a  form  of 
submission  for  such  cases,  to  be  signed  by  the  parties,  and  ac- 
knowledged before  the  consul.     When  parties  have  so  agreed  to 
refer,  the  referees  may,  after  suitable  notice  of  the  time  and 


8U.  S.   R.  S.,   §  40!10,  2  Fed.  St.  »'Ui  Si  R.  S.,  §  4097.  2  Fed.  St. 

Ann.  821,  Pierce's  Fed.  Code,  §  4252.       Ann.  822,  Pierce's  Fed.  Code,  §  4259. 

9TJ.   S.  R.  S.,   §   4091,  2   Fed.   St. 
Ann.  821,  Pierce's  Fed.  Code,  §  4253. 


084  ORIGINAL    JURISDICTION.  [§    74 

place  of  meeting  for  the  trial,  proceed  to  hear  the  case,  and  a 
majority  of  them  shall  have  power  to  decide  the  matter.     If 
either  party  refuses  or  neglects  to  appear,  the  referees  may  pro- 
ceed  ex    parte.      After   hearing   any   case  such    referees   may 
deliver  their  award,  sealed,  to  the  consul,  who,  in  court,  shall 
open    the    same;    and    if   he    accepts    it,    he    shall    indorse   the 
fact,   and  judgment  shall  be  rendered   thereon,   and  execution 
issue  in  compliance  with  the  terms  thereof.     The  parties,  how- 
ever, may  always  settle  the  same  before  return  thereof  is  made 
to  the  consul,"  n    In  all  criminal  cases  which  are  not  of  a  hein- 
ous character,  it  shall  be  lawful  for  the  parties  aggrieved  or  con- 
cerned therein,  with  the  assent  of  the  minister  in  the  country, 
or  consul,  to  adjust  and  settle  the  same  among  themselves,  upon 
pecuniary  or  other  considerations. "  12     "The  ministers  and  con- 
suls shall  be  fully  authorized  to  call  upon  the  local  authorities 
to  sustain  and  support  them  in  the  execution  of  the  powers 
confided  to  them  by  treaty,  and  on  their  part  to  do  and  perform 
whatever  is  necessary  to  carry  the  provisions  of  the  treaties  into 
full  effect,  so  far  as  they  are  to  be  executed  in  the  countries,  re- 
spectively." 13     "In  all  cases,  except  as  herein  otherwise  pro- 
vided, the  punishment  of  crime  provided  for  by  this  Title  shall 
be  by  fine  or  imprisonment,  or  both,  at  the  discretion  of  the 
officer  who  decides  the  case,  but  subject  to  the  regulations  here- 
in contained,  and  such  as  may  hereafter  be  made.    It  shall,  how- 
ever, be  the  duty  of  such  officer  to  award  punishment  according 
to  the  magnitude  and  aggravation  of  the  offense.     Every  per- 
son who  refuses  or  neglects  to  comply  with  the  sentence  passed 
upon  him  shall  stand  committed   until  he  does  comply,  or  is 
discharged  by  order  of  the  consul,  with  the  consent  of  the  min- 
ister in  the  country."14     "Insurrection  or  rebellion  against  the 
government  of  either  of  those  countries,  with  intent  to  subvert 
the  same,   and  murder,   shall  be  capital   offenses,   punishable 
with  death;  but  no  person  shall  be  convicted  of  either  of  those 
crimes,  unless  the  consul  and  his  associates  in  the  trial  all  con- 
cur in  opinion,  and  the  minister  also  approves  of  the  convic- 
tion.    But  it  shall  be  lawful  to  convict  one  put  upon  trial  for 

ill'.  S.   K.  S.,  §  4098,  2   Fed.  St.  lft,U,  S.  R.  S..  §  4100,  2   Fed.  St. 

Ann.  822.  Pierce's  Fed.  Code,  §  4200.  Ann.  823.  Pierce's  Fed.  Code,  §  4202. 

12  f.  S.  R.  S..  §  4099,  2  Fed.  St.  1*  U.  S.  R.  S.,  §  410 J,  2  Fed.  St. 

Ann.  823,  Pierce's  Fed.  Code,  §  4261.  Ann.  823,  Pierce's  Fed.  Code,  §  4263. 


§  74]  CONSULAR  COURTS.  285 

either  of  these  crimes,  of  a  less  offense  of  a  similar  character, 
if  the  evidence  justifies  it,  and  to  punish,  as  for  other  offenses, 
by  fine  or  imprisonment,  or  both.'"  15  "Whenever  any  person 
is  convicted  of  either  of  the  crimes  punishable  with  death,  in 
either  of  these  countries,  it  shall  be  the  duty  of  the  minister 
to  issue  his  warrant  for  the  execution  of  the  convict,  appoint- 
ing the  time,  place,  and  manner;  but  if  the  minister  is  satisfied 
that  the  ends  of  public  justice  demand  it,  he  may  from  time 
to  time  postpone  such  execution;  and  if  he  finds  mitigating 
circumstances  which  authorize  it,  he  may  submit  the  case  to 
the  President  for  pardon."  16  "No  fine  imposed  by  a  consul 
for  a  contempt  committed  in  presence  of  the  court,  or  for  fail- 
ing to  obey  a  summons  from  the  same,  shall  exceed  fifty  dol- 
dars ;  nor  shall  the  imprisonment  exceed  twenty-four  hours  for 
the  same  contempt."  17  "Any  consul,  when  sitting  alone  for 
the  trial  of  offenses  or  misdemeanors,  shall  decide  finally  all 
cases  where  the  fine  imposed  does  not  exceed  one  hundred  dol- 
lars, or  the  term  of  imprisonment  does  not  exceed  sixty  days."  18 
"Whenever,  in  any  case,  the  consul  is  of  opinion  that,  by  reason 
of  the  legal  questions  which  may  arise  therein,  assistance  will 
be  useful  to  him,  or  whenever  he  is  of  opinion  that  severer  pun- 
ishments than  those  specified  in  the  preceding  sections  will  be 
required,  he  shall  summon,  to  sit  with  him  on  the  trial,  one  or 
more  citizens  of  the  United  States,  not  exceeding  four,  and  in 
capital  cases  not  less  than  four;  who  shall  be  taken  by  lot 
from  a  list  which  had  previously  been  submitted  to  and  ap- 
proved by  the  minister,  and  shall  be  persons  of  good  repute 
and  competent  for  the  duty.  Every  such  associate  shall  enter 
upon  the  record  his  judgment  and  opinion,  and  shall  sign  the 
same;  but  the  consul  shall  give  judgment  in  the  case.  If  the 
consul  and  his  associates  concur  in  opinion,  the  decision  shall, 
in  all  cases,  except  of  capital  offenses,  and  except  as  provided 
in  the  preceding  section,  be  final.  If  any  of  the  associates  dif- 
fer in  opinion  from  the  consul,  the  case,  without  further  pro- 
ceedings, together  with  the  evidence  and  opinions,  shall  be  re- 
ferred to  the  minister  for  his  adjudication,  either  by  entering 

15  U.  S.  R.  S.,  §  4102,  2  Fed.  St.  "  U.  S.  R.  S..  §  4104.  2  Fed.  St. 
Ann.  823,  Pierce's  Fed.  Code,  §  42(>4.  Ann.  824.  Pierce's  Fed.  Code.  §  4206. 

16  U.  S.   R.  S.,  §  4103,  2  Fed.  St.  18  U.  S.  R.  S..  §  4105.  2   Fed.  St. 
Ann.  823.  Pierce's  Fed.  Code.  §  42G5.  Ann.  824,  Pierce's  Fed.  Code.  §  4207. 


280  ORIGINAL    JURISDICTION.  [§    74 

up  judgment  therein,  or  by  remitting  the  same  to  the  consul 
with  instruction  how  to  proceed  therewith."  19  "Each  of  the 
consuls  mentioned  in  section  "four  thousand  and  eighty-three 
shall  have  at  the  port  for  which  he  is  appointed,  jurisdiction  as 
herein  provided,  in  all  civil  cases  arising  under  such  treaties, 
respectively,  wherein  the  damages  do  not  exceed  the  sum  of  fire 
hundred  dollars,  and,  if  he  sees  fit  to  decide  the  same  without 
aid,  his  decision  thereon  shall  be  final.  But  whenever  he  is  of 
opinion  that  any  such  case  involves  legal  perplexities,  and  that 
assistance  will  be  useful  to  him,  or  whenever  the  damages  de- 
manded exceed  five  hundred  dollars,  he  shall  summon,  to  sit 
with  him  on  the  hearing  of  the  case,  not  less  than  two  nor 
more  than  three  citizens  of  the  United  States,  if  such  are  resid- 
ing at  the  port,  who  shall  be  taken  from  a  list  which  had  pre- 
viously been  submitted  to  and  approved  by  the  minister,  ami 
shall  be  of  good  repute  and  competent  for  the  duty.  Every 
such  associate  shall  note  upon  the  record  his  opinion,  and  also, 
in  case  he  dissents  from  the  consul,  such  reasons  therefor  as  he 
thinks  proper  to  assign;  but  the  consul  shall  give  judgment  in 
the  case.  If  the  consul  and  his  associates  concur  in  opinion, 
the  judgment  shall  be  final.  If  any  of  the  associates  differ  in 
opinion  from  the  consul,  either  party  may  appeal  to  the  minis- 
ter, under  such  regulations  as  may  exist ;  but  if  no  appeal  is 
lawfully  claimed,  the  decision  of  the  consul  shall  be  final."*0 
"The  jurisdiction  allowed  by  treaty  to  the  ministers,  respect- 
ively, in  the  countries  named  in  section  four  thousand  and 
eighty-three  shall  be  exercised  by  them  in  those  countries,  re- 
spectively, wherever  they  may  be."21  ''The  jurisdiction 
of  such  ministers  in  all  matters  of  civil  redress,  or  of  crimes, 
except  in  capital  eases  for  murder  or  insurrection  against  the 
governments  of  such  countries,  respectively,  or  for  offenses 
against  the  public  peace  amounting  to  felony  under  the  laws 
of  the  United  States,  shall  be  appellate  only;  Provided,  That 
in  cases  where  a  consular  officer  is  interested,  either  as  party  or 
witness,  such  minister  shall  have  original  jurisdiction."  22  "All 
such  officers  shall  be  responsible  for  their  conduct  to  the  United 

19  U.  S.  R.  S.,  §  4106,  2  Fed.  St.  21  U.  S.  R.  S..  §  4108,  2  Fed.  St. 

Ann.  824,  Tierce's  Fed.  Code.  §  4208.  Ann.  825.  Pierce's  Fed.  Code.  §  4270. 

20TJ.  S.  R.  S.,  §  41(17.  2  Fed.  St.  22r.  s.   K.  S..  §  4109,  2  Fed.  St. 

Ann.  824.  Pierce's  Fed.  Code,  §  4269.  Ann.  825,  Pierce's  Fed.  Code,  §  4271. 


§  74]  CONSULAR  COURTS.  287 

States,  and  to  the  laws  thereof,  not  only  as  diplomatic  or  consu- 
lar officers,  but  as  judicial  officers,  when  they  perform  judicial 
duties,  and  shall  be  held  liable  for  all  negligences  and  miscon- 
duct as  public  officers."23  "The  President  is  authorized  to 
appoint  marshals  for  such  of  the  consular  courts  in  those 
countries  as  he  may  think  proper,  not  to  exceed  seven  in  number, 
namely:  one  in  Japan,  four  in  China,  one  in  Siam,  and  one  in 
Turkey,  each  of  whom  shall  receive  a  salary  of  one  thousand 
dollars  a  year,  in  addition  to  the  fees  allowed  by  the  regulations  • 
of  the  ministers,  respectively,  in  those  countries."24  "It  shall 
be  the  duty  of  the  marshals,  respectively,  to  execute  all  process 
issued  by  the  minister  of  the  United  States  in  those  countries, 
respectively,  or  by  the  consul  at  the  port  at  which  they  reside, 
and  to  make  due  return  thereof  to  the  officer  by  whom  it  was 
issued,  and  to  conform  in  all  respects  to  the  regulations  pre- 
scribed by  the  ministers,  respectively,  in  regard  to  their 
duties."25  "Each  marshal,  before  entering  upon  the  duties 
of  his  office,  shall  give  bond  for  the  faithful  performance  there- 
of in  a  penal  sum  not  to  exceed  ten  thousand  dollars,  with  two 
sureties  to  be  approved  by  the  Secretary  of  State.  Such  bond 
shall  be  transmited  to  the  Secretary  of  the  Treasury,  and  a 
certified  copy  thereof  be  lodged  in  the  office  of  the  minister."  26 
"Whenever  any  person  desires  to  bring  suit  upon  the  bond  of 
any  such  marshal,  it  shall  be  the  duty  of  the  Secretary  of  the 
Treasury,  or  of  the  minister  having  custody  of  a  copy  of  the 
same,  to  give  to  the  person  so  applying  a  certified  copy  thereof, 
upon  which  suit  may  be  brought  and  prosecuted  with  the  same 
effect  as  could  be  done  "upon  the  original :  Provided,  The  Secre- 
tary of  the  Treasury,  or  the  minister  to  whom  the  application 
is  made,  is  satisfied  that  there  is  probable  cause  of  action 
against  the  marshal."27  "Upon  a  plea  of  non  est  factum, 
verified  upon  oath,  or  any  other  good  cause  shown,  the  court 
or  the  consul  or  minister  trying  the  cause  may  require  the 
original  bond  of  the  marshal  in  those  countries  to  be  produced ; 

23  U.  S.  R.  S.,  §  4110,  2  Fed.  St.  &U.  s.  R.  S.,  §  4113,  2  Fed.  St. 
Ann.  825,  Pierce's  Fed.  Code,  §  4272.  Ann.  826,  Pierce's  Fed.  Code,  §  4273. 

24  U.  S.  R.  S.,  §  4111,  2  Fed.  St.  27  u.  S.  R.  S.,  §  4114,  2  Fed.  St. 
Ann.  825.  Pierce's  Fed.  Code,  §  4273.  Ann.  820,  Pierce's  Fed.  Code,  §  4276. 

25  U.  S.  R.  S.,  §  4112,  2   Fed.  St. 
Ann.  825,  Pierce's  Fed.  Code,  §  4274. 


288  ORIGINAL,    JUBJSDI.CTJON.  [§    7-t 

and  it  shall  be  the  duty  of  the  Secretary  of  the  Treasury  to 
forward  the  original  buud  to  the  court,_or  consul,  or  minister 
requiring  the  same."28  "All  rules,  orders,  "writs,  and  processes 
of  every  kind  which  are  intended  to  operate  or  be  enforced 
against  any  of  the  marshals,  in  any  of  the  countries  named  in 
this  Title,  shall  be  directed  to  and  executed  by  such  persons  as 
may  be  appointed  for  that  purpose  by  the  minister  or  consul 
issuing  the  same." 29  "In  order  to  organize  and  carry  into 
effect  the  system  of  jurisprudence  demanded  by  such  treaties, 
respectively,  the  ministers,  with  the  advice  of  the  several 
consuls  in  each  of  the  countries,  respectively,  or  of  so  many  of 
them  as  can  be  conveniently  .assembled,  shall  prescribe  the 
forms  of  all  processes  to  be  issued  by  any  of  the  consuls ;  the 
mode  of  executing  and  the  time  of  returning  the  same;  the 
manner  in  which  trials  shall  be  conducted,  and  how  the  records 
thereof  shall  be  kept ;  the  form  of  oaths  for  Christian  witnesses, 
and  the  mode  of  examining  all  other  witnesses ;  the  costs  to  be 
allowed  to  the  prevailing  party,  and  the  fees  to  be  paid  for 
judicial  services;  the  manner  in  which  all  officers  and  agents 
to  execute  process,  and  to  carry  this  Title  into  effect,  shall  be 
appointed  and  compensated;  the  form  of  bail-bonds,  and  the 
security  which  shall  be  required  of  the  party  who  appeals  from 
the  decision  of  a  consul ;  and  shall  make  all  such  further  decrees 
and  regulations  from  time  to  time,  under  the  provisions  of 
this  Title,  as  the  exigency  may  demand."30  "All  such  regu- 
lations, decrees,  and  orders  shall  be  plainly  drawn  up  in  writ- 
ing, and  submitted,  as  hereinbefore  provided,  for  the  advice  of 
the  consuls,  or  as  many  of  them  as  can  be  consulted  without 
prejudicial  delay  or  inconvenience,  and  such  consul  shall  signi- 
fy his  assent  or  dissent  in  writing,  with  his  name  subscribed 
thereto.  After  taking  such  advice,  and  considering  the  same, 
the  minister  in  each  of  those  countries  may,  nevertheless,  by 
causing  the  decree,  order,  or  regulation  to  be  published  with 
his  signature  thereto,  and  the  opinions  of  his  advisers  inscribed 
thereon,  make  it  binding  and  obligatory,  until  annulled  or  modi- 
tied  by  Congress ;  and  it  shall  take  effect  from  the  publication 

28  U.  S.  R.  S..  §  4115.  2  Fed.  St.  30  U.  S.  R.  S.,  §  4117,  2  Fed.  St. 
Ann.  826,  Pierce's  Fed.  Code,  §  4277.       Ann.  826,  Pierce's  Fed.  Code,  §  4279. 

29  T.  S.   R.   S..   §  4116,  2   Fed.  St. 
Ann.  826,  Pierce's  Fed.  Code,  §  4278. 


§  74]  CONSULAR  COURTS.  289 

or  any  subsequent  day  thereto  named  in  the  act."  31  "All  such 
regulations,  orders,  and  decrees  shall,  as  speedily  as  may  be 
after  publication,  be  transmitted  by  the  ministers,  with  the 
opinions  of  their  advisers,  as  drawn  up  by  them  severally,  to  the 
Secretary  of  State,  to  be  laid  before  Congress  for  revision.''32 
"It  shall  be  the  duty  of  the  minister  in  each  of  those  countries 
to  establish  a  tariff  of  fees  for  judicial  services,  which  shall  be 
paid  by  such  parties,  and  to  such  persons,  as  the  minister  shall 
direct;  and  the  proceeds  shall,  as  far  as  is  necessary,  be  applied 
to  defray  the  expenses  incident  to  the  execution  of  this  Title  ; 
and  regular  accounts,  both  of  receipts  and  expenditures,  shall 
be  kept  by  the  minister  and  consuls  and  transmitted  annually 
to  the  Secretary  of  State."33  "The  President,  when  provision 
is  not  otherwise  made,  is  authorized  to  allow,  in  the  adjustment 
of  the  accounts  of  each  of  the  ministers  or  consuls,  the  actual 
expenses  of  the  rent  of  suitable  buildings  or  parts  of  buildings 
to  be  used  as  prisons  for  American  convicts  in  those  countries, 
not  to  exceed  in  any  case  the  rate  of  six  hundred  dollars  a  year; 
and  also  the  wages  of  the  keepers  of  the  same,  and  for  the  care 
of  offenders,  not  to  exceed,  in  any  case,  the  sum  of  eight  hun- 
dred dollars  per  annum.  But  no  more  than  one  prison  shall 
be  hired  in  Japan,  four  in  China,  one  in  Turkey,  and  one  in 
Siam,  at  such  port  or  ports  as  the  minister,  with  the  sanction 
of  the  President,  may  designate,  and  the  entire  expense  of 
prison  and  prison-keepers  at  the  consulate  of  Bangkok,  in  Siam, 
shall  not  exceed  the  sum  of  one  thousand  dollars  a  year."34 
"The  provisions  of  this  Title,  so  far  as  the  same  relate  to  crimes 
and  offenses  committed  by  citizens  of  the  United  States,  shall 
extend  to  Turkey,  under  the  treaty  with  the  Sublime  Porte  of 
May  seventh,  eighteen  hundred  and  thirty,  and  shall  be  executed 
in  the  Ottoman  dominions  in  conformity  with  the  provisions 
of  the  treaty,  and  of  this  Title,  by  the  minister  and  the 
consuls  appointed  to  reside  therein,  who  are  hereby  ex-officio 
vested  with  the  powers  herein  conferred  upon  the  ministers  and 
consuls  in  China,  for  the  purposes  above  expressed,  so  far  as 
regards  the  punishment  of  crime,  and  also  for  the  exercise  of 

31  U.  S.  R.  S.,  §  4118,  2  Fed.  St.  33  u.  S.  R.  S..   §  4120.  2   Fed.  St. 
Ann.  827,  Pierce's  Fed.  Code,  §  4280.  Ann.  S27.  Pierce's  Fed.  Code.  §  4282. 

32  U.  S.  R.  S.,  §  4119,  2  Fed.  St.  34  1.-.  s.  R.  S.,  §  4121,  2  Fed.  St. 
Ann.  827,  Pierce's  Fed.  Code,  §  4281.  Ann.  827,  Pierce's  Fed.  Code,  §  42S3. 

Fed.  Prac.  Vol.  I.— 19. 


290  ORIGINAL    JURISDICTION.  [§    74 

jurisdiction  in  civil  cases  wherein  the  same  is  permitted  by  the 
laws    of    Turkey,    or    its    usages    in    its    intercourse    with    the 
Franks,    or   other    foreign    Christian    nations." 35      "The    pro- 
visions of  this  Title  shall  extend  to  Persia,   in  respect  to  all 
suits   and   disputes   which    may    arise   between   citizens   of  the 
United  States  therein;  and  the  minister  and  consuls  who  may 
be  appointed  to  reside  in  Persia  are  hereby  invested,  in  relation 
to  such  suits  and  disputes,  with  such  powers  as  are  by  this 
Title  conferred  upon  the  ministers  and  consuls  in  China.     All 
suits  and  disputes  arising  in  Persia  between  Persian  subjects 
and  citizens  of  the  United  States  shall  be  carried  before  the 
Persian  tribunal  to  which  such  matters  are  usually  referred,  at 
the  place  where  a  consul  or  agent  of  the  United   States  may 
reside,  and  shall  be  discussed  and  decided  according  to  equity, 
m  the  presence  of  an  employe  of  the  consul  or  agent  of  the 
United  States;  and  it  shall  be  the  duty  of  the  consular  officer 
to  attend  the  trial  in  person,  and  see  "that  justice  is  admin- 
istered.    All  suits  and  disputes  occurring  in  Persia  between  the 
citizens  of  the  United  States  and  the  subjects  of  other  foreign 
powers,  shall  be  tried  and  adjudicated  by  the   intermediation 
of   their   respective   ministers   or  consuls,    in   accordance   with 
such  regulations  as  shall  be  mutually  agreed  upon  by  the  minis- 
ter of  the  United  States  for  the  time  being,  and  the  ministers 
of  such   foreign  powers,   respectively,  which   regulations  shall 
from  time  to  time  be  submitted  to  the  Secretary  of  State."36 
"The  provisions  of  this  title  so  far  as  the  same  are  in  conformity 
with  the  stipulations  in  the  existing  treaties  between  the  United 
States  and  Tripoli,  Tunis,  Morocco,  Muscat,  and  the  Samoan  or 
Xavigator  Islands,  respectively,  shall  extend  to  those  countries, 
and   shall   be  executed   in   conformity   with   the   provisions   of 
the  treaties  and  of  the  provisions  of  this  title  by  the  consuls 
appointed  by  the  United  States  to  reside  therein,  who  are  here- 
by ex  officio  invested  with  the  powers  herein  delegated  to  the 
ministers  and  consuls  of  the  United  States  appointed  to  reside 
in  the  countries  named  in  section  four  thousand  and  eighty- 
three,  so  far  as  the  same  can  be  exercised  under  the  provisions 
of  treaties  between  the  United  States  and  the  several  countries 

35  1.   S.   R.  S.,   §   412-i.  2   Fed.  St.  36  U.  S.   R.  S..  §  4120,  2  Fed.  St. 

Ann.  S28.  Pierce's  Fed.  Code,  §  4287.       Ann.  829,  Pierce's  Fed.  Code,  §  4290. 


§  74]  CONSULAR  COURTS.  291 

mentioned  in  this  section,  and  in  accordance  with  the  usages 
of  the  countries  in  their  intercourse  with  the  Franks  or  other 
foreign  Christian  nations.  And  whenever  the  United  States 
shall  negotiate  a  treaty  with  any  foreign  government,  in  which 
the  American  consul-general  or  consul  shall  be  clothed  with 
judicial  authority,  and  securing  the  right  of  trial  to  American 
citizens  residing  therein  before  such  consul-general  or  consul, 
and  containing  provisions  similar  to  or  like  those  contained  in 
the  treaties  with  the  governments  named  in  this  act,  then  said 
title,  so  far  as  the  same  may  be  applicable,  shall  have  full  force 
in  reference  to  said  treaty,  and  shall  extend  to  the  country  of 
the  government  negotiating  the  same." 37  "If  at  any  time 
there  be  no  minister  in  either  of  the  countries  hereinbefore 
mentioned,  the  judicial  duties  which  are  imposed  by  this  Title 
upon  the  minister  shall  devolve  upon  the  Secretary  of  State, 
who  is  authorized  and  required  to  discharge  the  same."  38  "The 
provisions  of  this  Title  relating  to  the  jurisdiction  of  consular 
and  diplomatic  officers  over  civil  and  criminal  cases  in  the 
countries  therein  named,  shall  extend  to  any  country  of  like 
character  with  which  the  United  States  may  hereafter  enter 
into  treatv  relations."  39  "The  word  'minister '  when  used  in 
this  title  shall  be  understood  to  mean  the  person  invested  with, 
and  exercising,  the  principal  diplomatic  functions.  The  word 
'consul'  shall  be  understood  to  mean  any  person  invested  by 
the  United  States  with,  and  exercising,  the  functions  of  consul- 
general,  vice  consul-general,  consul  or  vice-consul  or  a  consular 
agent." 40  Formerly  the  acting  consul 41  or  acting  consul-gen- 
eral could  not  exercise  the  jurisdiction  conferred  by  those  stat- 
utes.42 Where  no  treaty  otherwise  provided,  it  was  the  opinion 
(if  Attorney  General  Gushing  that  the  authority  of  consuls  of 
the  United  States  in  foreign  countries,  in  cases  of  crime  at 
sea  or  in  port,  was  ministerial  and  not  judicial.44 

37  U.  S.  R.  S.,  §  4127,  2  Fed.  St.  41  Acting   Secretary    Adee,   March 
Ann.  82(1,  Pierce's  Fed.  Code,  §  4291.       22,    1894,   Moore's   Dig.,   §   204,   II.. 

38  U.  S.  R.  S.,  §  4128,  2  Fed.  St.       G22. 

Ann.  830,  Pierce's  Fed.  Code,  §  4292.  42  Moore,    §§    261-284,    Secretary 

39  T.  S.  R.  S..   §  4129,  2  Fed.  St.  Fish,  Feb'y  9,  1876,  Moore's  Dig.  § 
Ann.  830,  Pierce's  Fed.  Code,  §  4293.  264.  II.,  623. 

40  U.  S.  R.  S.,  §  4130,  2  Fed.  St.  44  8  Op.  A.  G.  830. 
Ann.  830.  Pierce's  Fed.  Code,  §  4294. 

Act  of  Feb'y.    1876,   as  amended  by 
19  St.  ut  L.  2. 


292  ORIGINAL    JURISDICTION.  [§    74 

Consuls  have  exclusive  jurisdiction  over  disputes  between 
captains  and  crews  of  vessels  of  the  United  States,  including 
questions  of  wages,  by  treaties  or  conventions,  in  the  following 
countries:  Austria-Hungary,  Belgium,  Columbia,  Denmark, 
Dominican  Republic,  France,  Germany,  Greece,  Italy,  Kongo 
Free  State,  Netherlands  (and  colonies),  Portugal,  Roumania, 
Salvator,  Sweden  and  Norway,  and  Tripoli.45  Similar  powers 
were  given  by  a  treaty  with  Russia ; 46  but  whether  that  will  be 
in  force  at  the  time  this  book  is  published,  is  a  doubtful  ques- 
tion. Tn  Sweden  and  Norway  at  least,  this  power  does  not 
extend  to  public  offenses,  nor  to  actual  breaches  of  the  public 
peace  or  other  differences  between  the  captains  and  crews  which 
"disturb  the  order  or  tranquility  of  the  country.'"  47  They  have 
also  power  to  adjust  damages  suffered  at  sea  and  in  matters  of 
wrecks  and  salvage,  granted  to  them  by  treaties  with  Austria- 
Hungary,  Belgium,  Bolivia,  Borneo,  China,  Columbia,  Domini- 
can Republic,  Ecuador,  France,  Germany,  Greece,  Guatemala, 
Hayti,  Honduras,  Italy,  Japan,  Corea,  Liberia,  Madagascar, 
Maskat,  Morocco,  Netherlands  (including  colonies),  Ottoman 
Porte,  Paraguay,  Roumania,  Salvador,  Siam,  Spain,  Sweden 
and  Norway,  Tripoli,  and  Tunis.48  In  Maskat  and  the  Ottoman 
dominions,  they  have  the  right,  in  the  absence  of  the  owner 
or  agent,  to  receive  the  property  of  American  citizens  wrecked 
or  captured  from  pirates.49  Conventions  secure  to  them  the 
right  to  take  depositions  in  Austria-Hungary,  Belgium,  Colum- 
bia, France,  Germany,  (for  American  citizens  only),  Italy, 
Kongo  Free  State,  Netherlands,  Roumania,  Servia  and  Salva- 
dor.50 The  advice  of  a  consul  in  a  foreign  port  gives  the  master 
of  a  vessel  no  justification  for  an  illegal  act.51  His  action  in 
discharging  a  seaman  in  a  foreign  port  is  not  conclusive  where 
the  latter  subsequently  files  a  libel  for  wages,52  and  where  he  has 
discharged  seamen  at  the  request  of  a  master,  the  consul  cannot 
detain  them  in  prison  as  a  punishment.53     A  consul  has  no  au- 

«  Consular  Regulations,  1890,  V.           50  ibid.  V.  87. 

88.  61  Wilson  v.  The  Mary,  Gilpin  31. 

46  Ibid.  52  Campbell    v.    The    Uncle    Sam, 

47  15  Op.  A.  G.  178.  McAllister  77. 

48  Consular  Regulations,  1896,  V.  53  Jordan  v.  Williams,  1  Curtis, 
90.  69. 

49  Ibid.  V.  90. 


§   74] 


CONSULAR    COURTS. 


293 


thority  to  order  the  sale  of  a  ship  in  a  foreign  port,  whether  on 
complaint  of  the  crew  or  otherwise.54  Where  such  a  sale  took 
place  and  the  consul  retained  the  money  for  the  payment 
of  sailors'  wages,  Attorney  General  Gushing  was  of  the  opinion 
that  the  United  States  were  not  liable  to  the  owners  for  the 
money  thus  illegally  collected  and  retained.55  He  has  no  au- 
thority to  demand  and  receive  from  the  master  of  a  vessel,  the 
money  and  effects  belonging  to  aa  deserter  from  the  same,56  nor 
to  retain  the  papers  of  vessels  which  he  suspects  are  destined 
for  the  slave  trade.57  American  consuls  have  no  authority  to 
require  masters  of  American  ships  to  carry  to  the  United  States 
for  trial,  persons  accused  of  crime.58  The  constitutionality  of 
the  statute  granting  judicial  powers  to  consuls  in  countries 
where  Christianity  does  not  prevail  has  been  sustained-  under 
the   treaty    power.59      The    consular   courts   have   jurisdiction 


54  6  Op.  A.  G.  617. 

55  Ibid. 

56]4  Op.  A..G.  520. 

57  9  Op.  A.  G.  426. 

58  7  Op.  A.  G.  722. 

59  Re  Ross,  140  U.  S.  453,  462- 
463,  11  Sup.  897,  35  L.  ed.  581,  per 
Field,  J.: 

"The  practice  of  European  gov- 
ernments to  send  officers  to  reside 
in  foreign  countries,  authorized  to 
exercise  a  limited  jurisdiction  over 
vessels  and  seamen  of  their  country, 
to  watch  the  interests  of  their  coun- 
trymen and  to  assist  in  adjusting 
their  disputes  and  protecting  their 
commerce,  goes  back  to  a  very  early 
period,  even  preceding  what  are 
termed  the  Middle  Ages.  During 
those  ages  these  commercial  magis- 
trates, generally  designated  as  con- 
suls, possessed  to  some  extent  a  rep- 
resentative character,  sometimes  dis- 
charging judicial  and  diplomatic 
functions.  In  other  than  Christian 
countries  they  were,  by  treaty  stipu- 
lations, usually  clothed  with  au- 
thority to  hear  complaints  against 
their  countrymen  and  to  sit  in  judg- 


ment upon  them  when  charged  with 
public  offenses.  After  the  rise  of 
Islamism,  and  the  spread  of  its  fol- 
lowers over  eastern  Asia  and  other 
countries  bordering  on  the  Mediter- 
ranean, the  exercise  of  this  judicial 
authority  became  a  matter  of  great 
concern.  The  intense  hostility  of 
the  people  of  Moslem  faith  to  all 
other  sects,  and  particularly  to 
Christians,  affected  all  their  inter- 
course, and  all  proceedings  had  in 
their  tribunals.  Even  the  rules  of 
evidence  adopted  by  them  placed 
those  of  different  faith  on  unequal 
grounds  in  any  controversy  with 
them.  For  this  cause,  and  by  rea- 
son of  the  barbarous  and  cruel  pun- 
ishments inflicted  in  those  countries, 
and  the  frequent  use  of  torture  to  en- 
force confession  from  parties  ac- 
cused, it  was  a  matter  of  deep  in- 
terest to  Christian  governments  to 
withdraw  the  trial  of  their  subjects, 
when  charged  with  the  commission 
of  a  public  offense,  from  the  arbi- 
trary and  despotic  action  of  the 
local  officials.  Treaties  conferring 
such  jurisdiction  upon  these  consuls 


?94 


ORTGIXAL    JURISniCTIOX. 


[J  74 


of  crimes  committed  on  water  within  the  territory  of  their 
district.60  A  consular  court  has  jurisdiction  of  a  criminal 
offense,  such  as  murder,  committed  in  a  port  of  its  district. 
by  a  citizen  of  a  foreign  State,  such  as  a  British  subject, 
while  duly  enrolled  as  a  seaman  on  a  merchant  vessel  of 
the  United  States.61  By  a  regulation  of  the  Minister  to  China, 
approved  by  the  State  Department,62  when  a  criminal  prose- 
cution was  pending  in  any  consular  district  of  China  against  a 
citizen  of  the  United  States,  who  might  be  found  in  another 
district,  the  consul  before  whom  the  prosecution  is  pending 
might  issue  a  warrant  for  the  arrest,  under  which,  when  based 
by  the  consul  of  the  latter  district,  the  accused  might  be  arrested 
and  transported  to  the  former  district  for  trial.63  The  State  De- 
partment has  expressed  the  opinion :  that  the  statutes  confer  no 
jurisdiction  over  citizens  of  the  United  States  serving  on  board 
foreign  vessels  of  war ; 64  nor  authority  to  make  a  regulation  re- 
quiring citizens  of  the  United  States  to  register  their  names, 
nor  power  to  enforce  such  a  regulation  judicially;65  nor  to 
banish  a  convict  to  China  or  another  foreign  country;66  nor  to 
try  a  criminal  charge  against  anyone  who  is  not  a  citizen  of  the 
United  States;67  nor  a  regulation  concerning  the  importation 
of  fire-arms  and  ammunities  into  a  port,  with  the  government  of 
which  there  is  no  treaty.68  The  provisions  of  the  Constitution 
which  guarantee  trial  by  jury  under  an  indictment  by  a  grand 
jury  do  not  apply  to  the  consular  courts,69  nor  to  their  juris- 


were  essential  to  the  peaceful  resi- 
dence of  Christians  within  those 
countries  and  the  successful  prose- 
cution of  commerce  with  their  peo- 
ple. The  treaty-making  power  vest- 
ed in  our  government  extends  to  all 
proper  subjects  of  negotiation  with 
foreign  governments.  It  can.  equally 
with  any  of  the  former  or  present 
governments  of  Europe,  make  treat- 
ies providing  for  the  exercise  of  ju- 
dicial authority  in  other  countries 
by  its  officers  appointed  to  reside1 
therein." 

60  Ee  Ross,  140  U.  S.  453,  11  Sup. 
Sy?,  35  L.  ed.  581. 

61  Ibid. 


62  Secretary  Olney,  Feb'y.  2,  1897. 

63  Moore's  Dig.,  §  263.  II:,  62li 

64  Mr.  Cadwalader,  November  26. 
1875.  Wharton's  Dig..  §  125,  Vol.  I.. 
p.  809. 

65  Secretary  Fish.  February  26, 
1873.  Wharton's  Dig..  §  125.  Vol. 
I.,   p.   803. 

66  Mr.  Fish.  September  10,  1870. 
\\  harton's  Dig..  §  125.  Vol.  I.,  p.  805. 

67  Mr.  Fish,  January  8,  1873, 
Wharton's   Dig.,    §    125.   Vol.    I.,    p. 

SIlS. 

68  Instruction  of  August  15.  1895, 
Moore's  Dig..  §  263,   I..  622. 

69  Re  Ross.  140  U.  S.  453,  464- 
465,  11   Sup.  Ct.  897.  35  L.  ed.  581, 


n] 


CONSULAR    COURTS. 


295 


diet imi  over  persons  charged  with  crimes  committed  within 
their  districts,70  or  upon  vessels  of  the  United  States.71  In  the 
trial  of  a  crime  hefore  a  consular  court,  the  accused  should  have 
an  opportunity  of  exhibiting  the  complaint  against  him  or 
should  be  presented  with  a  copy  stating  the  offense  he  has  com- 
mitted.72   At  least  in  the  absence  of  an  act  of  Congress  author- 


per  Field,  J.:  "By  the  Constitution 
a  government  is  ordained  and  estab- 
lished (for  the  United  States  of 
America),  and  not  for  countries 
outside  of  their  limits.  The  guar- 
antees it  affords  against  accusation 
of  capital  or  infamous  crimes,  ex- 
cept by  indictment  or  presentment 
by  a  grand  jury,  and  for  an  impar- 
tial trial  by  a  jury  when  thus  ac- 
cused, apply  only  to  citizens  and 
others  within  the  United  States,  or 
who  are  brought  there  for  trial  for 
alleged  offenses  committed  else- 
where, and  not  to  residents  or  tem- 
porary sojourners  abroad.  Cook  v. 
United  States,  138  U.  S.  157,  181, 
34  L.  ed.  906.  912.  The  Constitu- 
tion can  have  no  operation  in  an- 
other country.  When,  therefore, 
the  representatives  or  officers  of  our 
government  are  permitted  to  exer- 
cise authority  of  any  kind  in  an- 
other country,  it  must  be  on  such 
conditions  as  the  two  countries  may 
agree,  the  Taws  of  neither  one  being 
obligatory  upon  the  other.  The 
deck  of  a  private  American  vessel, 
it  is  true,  is  considered  for  many 
purposes  constructively  as  territory 
of  the  United  States,  yet  persons  on 
board  of  such  vessels,  whether  offi- 
cers, sailors,  or  passengers,  cannot 
invoke  the  protection  of  the  provi- 
sions referred  to  until  brought  with- 
in the  actual  territorial  boundaries 
of  the  United  States.  And.  besides, 
their  enforcement  abroad  in  numer- 
ous places,  where  it  would  be  highly 
important  to  have  consuls  invested 


with  judicial  authority,  would  be 
impracticable  from  the  impossibili- 
ty of  obtaining  a  competent  grand 
or  petit  jury.  The  requirement  of 
such  a  body  to  accuse  and  to  try 
an  offender  would,  in  a  majority  of 
cases,  cause  an  abandonment  of  all 
prosecution.  The  framers  of  the 
Constitution,  who  were  fully  aware 
of  the  necessity  of  having  judicial 
authority  exercised  by  our  consuls 
in  non-Christian  countries,  if  com- 
mercial intercourse  was  to  be  had 
with  their  people,  never  could  have 
supposed  that  all  the  guarantees  in 
the  administration  of  the  law  upon 
criminals  at  home  were  to  be  trans- 
ferred to  such  consular  establish- 
ments, and  applied  before  an  Amer- 
ican who  had  committed  a  felony 
there  could  be  accused  and  tried. 
They  must  have  known  that  such  a 
requirement  would  defeat  the  main 
purpose  of  investing  the  consul  with 
judicial  authority.  While,  there- 
fore, in  one  aspect  the  American 
accused  of  crime  committed  in  those 
countries  is  deprived  of  the  guar- 
antees of  the  Constitution  against 
unjust  accusation  and  a  partial 
trial,  yet  in  another  aspect  he  is 
the  gainer,  in  being  withdrawn  from 
the  procedure  of  their  tribunals, 
often  arbitrary  and  oppressive,  and 
sometimes  accompanied  with  ex- 
treme cruelty  and  torture." 

70  Ibid. 

71  Ibid. 

72  Ibid. 


296 


OIUGIXAL    JIKISIUCTIOX. 


[§  74 


izing  proof  by  the  depositions  of  witnesses  beyond  the  juris- 
diction, he  is  entitled  to  be  confronted  with  the  witnesses 
against  him  and  to  cross-examine  them.73  He  has  the  right  to 
be  represented  by  counsel.74  The  State  Department  has  dis- 
approved the  use  of  torture  to  elicit  testimony,  although  author- 
ized by  the  law  of  the  country  where  the  consul  holds  court,75 
and  the  infliction  of  flogging  as  a  punishment  for  wife-beating.76 
The  Attorney  General  has  expressed  the  opinion  that  a  consular 
court  cannot  execute  a  sentence  of  imprisonment  beyond  its 
territorial  jurisdiction,  so  that,  in  the  absence  of  legislation, 
a  convict  of  a  consular  court  cannot  be  imprisoned  in  the  United 
States.77  The  State  Department  has  directed  that,  in  all  cases 
of  capital  punishment,  the  execution  shall  be  postponed  until 
the  case  has  been  reported,  copies  of  the  judgment  and  testimony 
transmitted  to  the  Department,  and  the  President's  views  in  the 
premises  shall  have  been  received.78  Consuls  exercise  in  the 
Turkish  dominions,  by  usage,  the  power  to  adjudicate  contro- 
versies between  Christian  citizens  of  the  United  States  and  the 
trial  of  suits  by  foreign  Christians  against  the  same.79  Citizens 
of  a  foreign  country,  who  are  not  in  the  employ  of  the  consu- 
late, nor  enrolled  on  American  ships,  can  only  sue  in  the  courts 
of  the  United  States  by  comity.80  The  Attorney  General  has 
ruled  that  a  consular  court  cannot,  in  a  suit  by  a  person  not  a 
citizen  of  the  United  States,  enter  judgment  for  a  set-off  beyond 
the  extent  of  the  claim  asserted  by  the  plaintiff,  nor  render  a 
judgment  against  a  person  of  foreign  birth  not  a  citizen  of  the 
United  States.81  In  Oriental  countries,  consuls  may  probate 
wills.82     They  have  granted  decrees  of  divorce.83     In  Turkey, 


73  Ibid. 

74  Ibid. 

76  Assistant  Secretary  Hay,  Au- 
gust 16.  1880,  Wharton's  Dig..  (2nd 
ed.)   §  125.  Vol.  I,  p.  810. 

76  Moore's  Dig.,  §  266,  Vol.  II, 
p.  632. 

77  u  Op.  A.  G.  522. 

78  Wharton's  Dig..  §  125.  Vol.  I, 
p.  819. 

79  7  Op.  A.  G.  565;  Consular  Reg- 
ulations, XXX.  620.  See  V.  S.  R. 
S.,    §    4125,    2    Fed.    St.    Ann.    820, 


Pierce's   Fed.    Code,    §   4291,   quoted 
supra. 

80  Acting  Secretary  Davis,  August 
11,  1882,  Moore's  Dig.,  §  260,  Vol. 
II.  p.  604. 

81  11  Op.  A.  G.  474. 

82  Secretary  Evarts,  March  15, 
1879.  Moore's  Dig.,  §  265,  Vol.  II, 
p.  626. 

83  See  Xaggar's  Case  in  Cairo, 
Egypt.  Moore's  Dig.,  §  265,  Vol.  IT, 
p.  626.  Regulations  concerning  di- 
vorce   by    Minister    of    Japan    were 


74] 


CONSULAR   COURTS. 


297 


the  consular  courts  have  exclusive  jurisdiction  to  decide  who 
are  the  heirs  and  widow  of  an  American  citizen  who  died  when 
there  domiciled.84     It  seems  to  be  the  rule  that,  in  the  absence 
of  legislation  by  Congress,  consuls  and  consular  courts  have  no 
jurisdiction    over    the    property    of    Americans    in    a    foreign 
country   who   have    abandoned   their   residence   or   have   never 
resided  there.85     it  has  been  ruled  by  the  State  Department  that 
a  Consul  General  in  a  country  with  which  there  is  no  treaty. 
has  no  power  to  promulgate  a  regulation  concerning  tbe  validity 
of  mortgages  and    bills  of  sale,86  nor  to  adjudicate   upon"   the 
title  to  land  ;  but  that  he  may  pass  on  the  rights  of  landlord  and 
tenant  or  adverse  claims  to  the   right  of  possession  under   a 
written  contract.87    The  power  of  the  Secretary  of  State  to  exer- 
cise the  right  to  review  by  appeal  a  consular  decision  or  the  exer- 
cise of  other  judicial  functions,  has  been  said  to  be  doubtful.88 
It  has  been  said  that  where  the  consul  acts  bevond  his  iuris- 
diction,  his  order  may  be  set  aside  by  the  Secretary  of  State 
or  the  President,  but  tbat,  in  the  absence  of  a  treaty  giving  such 
authority,  this  cannot  be  done  in  case  of  an  erroneous  decision 
upon  the  merits  within  the  consular  jurisdiction.89     A  person 
imprisoned  within  the  United  States  by  the  order  of  a  consul 
or  a  consular  court  acting  beyond   its  jurisdiction  may,   in   a 
proper  case,  have  a  review  by  habeas  corpus.90     Except  possibly 
in  the  live  ports  of  China,91  an  action  will  lie  against  the  consul 
if  his  order  is  void  for  want  of  jurisdiction.92     It  has  been 


disapproved;  Secretary  Fish,  De- 
cember 26,  3  870,  Wharton's  Dig. 
(2nd  ed.),  §  125,  Vol.  T,  p.  807. 

84  Decree  of  Turkish  Council  of 
Ministers,  Moore's  Dig.,  §  265,  Vol. 
IT,  p.  627. 

85  Mr.  Fish,  December  20,  1870, 
Wharf  on's  Dig.,  §  125,  Vol.  1. 
p.  807.  See  Dainese  v.  Hale,  91  U. 
S.   13. 

86  Assistant  Secretary  Rockhill, 
Oct.  0,  1896,  Moore's  Dig.,  §  263, 
II,  622. 

87  Assistant  Secretary  Hunter, 
Sept.  3,  1874,  Moore's  Dig.,  §  265, 
IT,  627. 

88  Assistant     Secretary     Strobell, 


January  16,  1894,  concern  ing  the 
Madagascar  Treaty,  Moore's  Dig., 
§  266,  Vol.  IT.  p.  631.  See  Re  Ross, 
140  U.  S.  453,  11  Sup.  Ct.  897,  35 
L,  ed.  581. 

89  Pacific  Mail  S.  S.  Case,  by  Sec- 
retary Seward,  Moore's  Dig.,  Au- 
gust 18,  1868,  §  265,  Vol.  II,  p.  629. 

90  Be  Ross,  140  U.  S.  453,  11  Sup. 
Ct,  897,  35  L.  ed.  5S1. 

91  See  Lange  v.  Benedict,  73  N\  Y. 
12.  29  Am.  Rep.  SO. 

92  Dainese  v.  Hale.  91  U.  S.  13, 
23  L.  ed.  190;  Secretary  Seward  in 
Pacific  Mail  S.  S.  Case.  Moore's 
Dig.,   August    18,    1868,    §   265,    Vol. 


298 


ORIGINAL    JURISDICTION. 


[§ 


75 


held  that  a  Consular  Court  is  a  court  of  limited  jurisdiction 
and  that  all  the  jurisdictional  facts  must  be  alleged  in  the 
plaintiff's  libel,  petition  or  other  pleading,  which  otherwise 
will  be  insufficient.93 

§  75.  Jurisdiction  and  practice  of  the  Commerce  Court. 
The  Commerce  Court  is  composed  of  five  judges,  selected  from 
the  Circuit  Judges  of  the  United  States ;  in  the  first  instance, 
by  the  President,  and  in  the  case  of  subsequent  vacancies,  by 
the  Chief  Justice  of  the  United  States.1  A  quorum  must  con- 
sist of  four  judges  and  at  least  a  majority  of  the  whole  court 
must  concur  in  all  decisions.2  The  Commerce  Court  has  ex- 
elusive  jurisdiction  of  the  following  cases:  ''First.  All  cases 
afor  the  enforcement,  otherwise  than  by  the  adjudication  and 
"collection  of  a  forfeiture  or  penalty  or  by  infliction  of  criminal 
"punishment,  of  any  order  of  the  Interstate  Commerce  Corn- 
emission  other  than  for  the  payment  of  money.  Second. 
"Cases  brought  to  enjoin,  set  aside,  annul,  or  suspend  in  whole 
"or  in  part  any  order  of  the  Interstate  Commerce  Commission.3 
"Third.  Such  cases  as  by  section  three  of  the  Act,  which  is 
"usually  known  as  the  Interstate  Commerce  law,  entitled  'An 
"Act  to  further  regulate  commerce  with  foreign  nations  and 
"among  the  States,'  approved  February  nineteenth,  nineteen 
"hundred  and  three,  are  authorized  to  be  maintained  in  a  circuit 
"court  of   the  United    States.     Fourth.     All   such   mandamus 


II,  p.  629.  But  see  Lange  v.  Bene- 
dict, 73  N.  Y.  12,  29  Am.  Rep.  80. 

93  Steamer  Spark  v.  Lee  Choi 
Chum,  1  Sawyer,  713.  For  this  sub- 
ject generally,  see  Wharton's  Dig., 
§  125,  Vol.  I,  Moore's  Dig.  §§  259- 
266.  and  the  authorities  therein 
cited. 

§  75.  1  It  has  been  said  that  the 
phrase  "other  than  for  the  pay- 
ment of  money"  refers  to  actions 
in  which  there  is  a  right  under  the 
Constitution  to  a  trial  by  jury  and 
that  the  Commerce  Court  lias  juris- 
diction of  a  suit  to  annul  an  order 
of  the  commission  awarding  repara- 
tion in  damages  under  the  Inter- 
state Commerce  Act.  Southern  Ry. 
Co.  v.  U.  S.,  (Comm.  Ct.)  193  Fed. 
664. 


2  The  court  has  jurisdiction  of  a 
petition  by  a  carrier  to  restrain  an 
older  of  the  commission  directing 
it  to  desist  from  an  alleged  dis- 
crimination in  allowances  for  lith- 
erage.  U.  S.,  Interstate  Commerce 
Commission,  and  Federal  Sugar  Re- 
fining Co.  v.  The  Baltimore  &  Ohio 
Railroad  Co.,  (Comm.  Ct.)  225  U. 
S.  306,  56  L.  ed.  1100.  It  has  been 
said  that  an  order  of  the  commis- 
sion fixing  a  rate  should  be  set 
aside  when  it  is  not  based  upon  evi- 
dence which  the  carrier  has  had  an 
opportunity  to  answer.  Atlantic 
Coast  Line  R.  Co.  v.  Interstate  Cuin- 
merce  Commission,  (Comm.  Ct.) 
194  Fed.  449. 

3  Tn  such  a  suit  under  the  act  of 


§    75]       JURISDICTION  AND  TERMS  OF  COMMERCE  COURT.  299 


"proceedings4  as  under  the  provisions  of  section  twenty  or 
"section  twenty-three  of  the  Act,  which  is  usually  known 
"as  the  Elkins  law,  entitled  'An  Act  to  regulate  commerce,' 
"approved  February  fourth,  eighteen  hundred  and  eighty- 
"seven,  as  amended,  are  authorized  to  be  maintained  in  a 
"circuit  court  of  the  United  States.5  Fifth.  "Suits  to  en- 
"join,  set  aside,  annul,  or  suspend  any  order  of  the  Inter- 
state Commerce  Commission  shall  be  brought  in  the  Com- 
"merce  Court  against  the  United  States.  The  pendency  of 
"such  suit  shall  not  of  itself  stay  or  suspend  the  operation  of 
"the  order  of  the  Interstate  Commerce  Commission;  but  the 
"Commerce  Court,  in  its  discretion,  may  restrain  or  suspend, 
"in  whole  or  in  part,  the  operation  of  the  commission's  order 
"pending  the  final  hearing  and  determination  of  the  suit.  No 
"order  or  injunction  so  restraining  or  suspending  an  order  of 
"the  Interstate  Commerce  Commission  shall  be  made  by  the 
"Commerce  Court  otherwise  than  upon  notice  and  after  hear- 
"ing,  except  that  in  cases  where  irreparable  damage  would 
"otherwise  ensue  to  the  petitioner,  said  court,  or  a  judge  there- 
"of,  may,  on  hearing  after  not  less  than  three  days'  notice  to  the 
"Interstate  Commerce  Commission  and  the  Attorney  General, 
"allow  a  temporary  stay  or  suspension  in  whole  or  in  part  of 
"the  operation  of  the  order  of  the  Interstate  Commerce  Com- 
"mission  for  not  more  than  sixty  days  from  the  date  of  the 
"order  of  such  court  or  judge,  pending  application  to  the 
"coufct  for  its  order  or  injunction,  in  which  case  the  said  order 
"shall  contain  a  specific  finding,  based  upon  evidence  submitted 
"to  the  judge  making  the  order  and  identified  by  reference 
"thereto,  that  such  irreparable  damage  would  result  to  the 
"petitioner  and  specifying  the  nature  of  the  damage.  The  court 
"may,  at  the  time  of  hearing  such  application,  upon  a  like  find- 
"ing,  continue  the  temporary  stay  or  suspension  in  whole 
"or  in  part  until  its  decision  upon  the  application."6  "All 
"cases  and  proceedings  in  the  Commerce  Court  which  but  for 

March    2,    38S9,    the    Circuit    Court  *  See  U.  S.  v.  Louisville  &  N.  R. 

li ail   no  power  to   amend  or  modify  Co.,    (Comm.  Ct.)    195  Fed.  88. 

the    order    of    the    commission,    but  5  Jud.    Code,   §   207,   36   St.   at  L. 

v. as  obliged  to  enforce  it,  if  at  all,  1087. 

in     its    entirety.       Interstate    Com-  6  Ibid.  §  208. 

mercc  Comm.  v.  Lake  Shore  &  M.  S. 

Ry.  Co.,  3  34  Fed.  942. 


300  ORIGINAL    JURISDICTION.  [§    75 

"this  chapter  would  be  brought  by  or  against  the  Interstate 
"Commerce  Commission,  shall  be  brought  by  or  against  the 
"United  States,  and  the  United  States  may  intervene  in  any 
"case  or  proceeding  in  the  Commerce  Court  whenever,  though 
"it  has  not  been  made  a  party,  public  interests  are  involved."7 
The  attorney  general  has  charge  of  the  interests  of  the  govern- 
ment in  all  cases  and  proceedings  in  the  Commerce  Court  and 
in  the  Supreme  Court  of  the  United  States  upon  appeal  there- 
from. He  may  employ  special  attorneys  and  counsel  for  his 
assistants.8  The  Interstate  Commerce  Commission  and  any 
party  or  parties  in  interest  to  a  proceeding  before  the  com- 
mission, in  which  an  order  or  requirement  is  made,  may  appear 
as  parties  of  their  own  motion  and  as  of  right  and  may  be 
represented  by  their  own  counsel,  in  any  suit  wherein  is  in- 
volved the  validity  of  such  order  or  requirement  or  of  any  part 
thereof  and  the  interest  of  such  party.9  The  court  may  make 
all  such  rules  and  orders  as  to  such  appearance  and  represen- 
tations, the  number  of  counsel,  and  all  matters  of  procedure  and 
otherwise,  as  will  subserve  the  ends  of  justice  and  speed  the 
determination  of  such  suits.10  Communities,  associations,  cor- 
porations, firms  and  individuals,  interested  in  a  controversy  or 
question  before  the  Interstate  Commerce  Commission  or  in  any 
suit  relating  to  action  of  the  Interstate  Commerce  Commission, 
which  may  be  brought  in  the  Commerce  Court,  may  intervene 
in  such  suit  or  proceedings  at  any  time  after  the  institution 
thereof,  and  the  attorney  general  cannot  dispose  of  or  discon- 
tinue the  same  against  the  objection  by  such  party  or  inter- 
venor ;  but  such  intervenor  or  intervenors  may  prosecute,  de- 
fend or  continue  such  suit  by  proceedings  unaffected  by 'the 
action  or  non-action  of  the  attorney  general  therein.11  "Com- 
plainants before  the  Interstate  Commerce  Commission  in- 
terested in  a  case  shall  have  the  right  to  appear  and  be  made 
"parties  to  the  case  and  be  represented  before  the  courts  by 
"counsel,  under  such  regulations  as  are  now  permitted  in  similar 
"circumstances  under  the  rules  and  practice  of  equity  courts 
"of  the  United  States."  12  A  suit  in  the  Commerce  Court  is 
begun  by  filing  a  petition  setting  forth  briefly  the  facts  consti- 

1  Ibid.  §  2J1.  10  Ibid. 

8  II, id.  §  212.  "Ibid. 

9  Ibid.  12  Ibid.  §  215. 


§     75]       JURISDICTION  AXD  TERMS  OF  COMMERCE  COURT.  301 

tutiug  the  petitioner's  cause  of  action  and  specifying  the  relief 
sought.13     A   copy  of  the  petition  is  forthwith  served  by  the 
marshal  or  a  deputy  marshal  of  the  Commerce  Court  or  by  the 
proper  United  States  marshal  or  deputy  marshal  upon  every 
defendant  therein  named,  except  the  United  States,  and  upon 
the  United   States  when  a  defendant  by  filing  a  copy  of  the 
petition  in  the  office  of  the   Secretary  of  the  Interstate  Com- 
merce Commission  and   in   the  Department  of  Justice.14     An 
answer  to  the  petition  must  be  filed  in  the  clerk's  office  within 
thirty  days  after  its  service,  unless  the  time  is  extended  by  order 
of  the  court  or  a  judge  thereof,  and  at  the  same  time  a  copy  of 
the  answer  must  be  mailed  to  the  petitioner's  attorney.15     The 
answer  must  briefly  and  categorically  respond  to  the  allegations 
of  the  petition.16    This  sets  the  case  at  issue  and  no  replication 
or  other  pleading  is  required.17     Objections  to  the  sufficiency 
of  the  petition  or  answer,  as  not  setting  forth  a  cause  of  action 
or  defense,  as  the  case  may  be,  must  be  specifically  taken  at 
the  final  hearing  or  by  a  motion  to  dismiss  the  petition  made 
before  the  answer  is  filed.18     If  the  defendant  files  no  answer, 
the  petitioner  may  apply  on  notice  for  such  relief  as  may  be 
proper  upon  the  facts  alleged  in  the  petition.19     The  court  may 
by  rule  prescribe  the  method  of  taking  evidence  in  cases  there- 
in pending  and  it  may  prescribe  that  the  evidence  be  taken 
before  a  single  judge  with  power  to  rule  upon  the  admission 
of  evidence.20    Otherwise,  unless  there  is  a  rule  of  the  court  to 
the  contrary,  the  practice  and  procedure  in  the  Commerce  Court 
conforms  as  nearly  as  may  be  in  like  cases  to  that  of  the  Dis- 
trict Court  of  the  United  States.21     The  Commerce  Court  has 
no  jurisdiction  to  entertain  a  complaint  because  of  the  refusal 
of  the  commission  to  act;  its  jurisdiction  is  limited  to  the  re- 
view of  affirmative  orders  of  the  commission.22     Accordingly, 
this  court  has  no  jurisdiction  of  a  claim  by  a  shipper  to  re- 
cover from  a  carrier  excessive  freight  charges  which  has  not 

13  Ibid.  §  209.  19  Ibid. 

14  Ibid.  20  ibid. 

15  Ibid.  21  ibid. 

16  Ibid.  22  Proctor  &  Gamble  Co.  v.  U.  S., 
"Ibid.  225  U.  S.  282,  50  L.  ed.  1091,  (re- 
18  Ibid.  versing  188  Fed.  221  I. 


302 


ORIGINAL    JURISDICTION. 


[§  75 


been  presented  to  the  commission,2*  by  the  claimant84  nor  of 
a  claim  upon  which  the  commission  has  not  passed.25  nor  to 
review  the  denial  by  the  commission  of  a  petition  by  a  carrier 
tor  leave  to  refund  an  excessive  freight  charge.8'  ]t  seems  that 
the  District  Courts  of  the  United  States  are  not  deprived  of 
jurisdiction  of  actions  by  shippers  from  the  recovery  of  freight 
Charges  which  have  been  declared  by  the  commission  to  be  ex- 
cessive, **  and  to  recover  damages  under  the  statute  because  of 
secret  advantages  given  by  a  carrier  to  his  competitor,  in  vio- 
lation of  its  published  rates.28  It  seems  that  this  court  has 
jurisdiction  of  a  suit  to  annul  an  order  of  the  commission  which 
awards  reparation  to  a  complainant  under  the  Interstate  Com- 
merce Act.29  This  court  has  jurisdiction  over  a  constitutional 
question  dependent  upon  the  provisions  of  the  Interstate  Com- 
merce Act  when  reviewing  an  affirmative  order  of  the  Commis- 
sion, but  not  to  review  an  order  by  the  commission  denying  a 
constitutional  right  asserted  in  a  petition  to  it,  which  is  inde- 
pendent of  all  questions  of  rights  and  remedies  under  this 
statute.30  The  direction  that  the  order  shall  contain  a  finding 
concerning  irreparable  damages31  applies  only  to  a  stay  of  an 
older  of  the  commission  pending  an  application  to  the  court 
for  an  injunction.32  It  has  been  held  that  when  an  order  of  the 
commission  fixing  a  rate  for  the  transportation  of  freight  has 
been  directed  against  several  carriers,  either  of  them  may  pe- 
tition the  Commerce  Court  for  redress  without  joining  the  other 
parties,  since  the  suit  is  plenary  and  the  injury  is  several  and 
not  joint.33 


23  ibid. 

24  National  Pole  Co.  v.  Chicago  & 
\.  W.   Ry.  Co.,  200  Fed.  185. 

25  U.  8.  ex  rel.  Stony  Fork  Coal 
Co.  v.  Louisville  &  N.  R.  Co. 
(Conim.  Ct.)    195  Fed.  88. 

26  Arkansas  Fertilizer  Co.  v.  U. 
S.,    (Conim.  Ct.)    19.3   Fed.  667. 

27  Chicago,  B.  &  Q.  R.  Co.  v. 
Feintuch,   191    Fed.  482. 

28  A.  J.  Phillips  Co.  v.  Grand 
Trunk  Westei  n  Ry.  Co..  C.  C.  A.. 
!95  Fed.  12;  Langdon  v.  Pennsyl- 
vania R.  Co.,  194  Fed.  486. 


29  Arkansas  Fertilizer  Co.  v.  U. 
S.,  (Comm.  Ct.)  193  Fed.  667: 
Southern  Ry.  Co.  et  al.  v.  United 
States  (Interstate  Commerce  Com- 
mission, Intervener). 

30  Proctor  &  Gamble  Co.  v.  U.  S., 
225  U.  S.  282.  56  L.  ed.  1091. 

SlJud.  Code,  §  208:  .36  St.  at  L. 
1087. 

32  r.  S.  v.  P.  &  O.  R.  R.  Co.  225 
U.  S.  306. 

33  Atlantic  Coast  Line  R.  Co.  v. 
Interstate  C.  Commission,  (Comm. 
Ct.)    194  Fed.  449. 


§    76]  BOARD  OF  GENERAL  APPRAISERS.  303 

§  76.  Jurisdiction  of  the  Board  of  General  Appraisers. 
The  Payne  Tariff  Law  of  August  5,  1909,  contains  the  follow- 
ing provisions  concerning  the  Board  of  General  Appraisers  of 
merchandise :  "§  12.  That  there  shall  be  appointed  hy  the 
President,  by  and  with  the  advice  and  consent  of  the  Senate, 
nine  general  appraisers  of  merchandise.  Not  more  than  five  of 
such  general  appraisers  shall  be  appointed  from  the  same 
political  party.  They  shall  not  be  engaged  in  any  other 
business,  avocation,  or  employment.  That  the  office  of  said 
general  appraisers  shall  be  at  the  port  of  New  York,  and 
three  of  them  shall  be  on  duty  at  that  port  daily  as  a  board 
of  general  appraisers. 

"All  of  the  general  appraisers  of  merchandise  heretofore 
or  hereafter  appointed  under  the  authority  of  said  Act  shall 
hold  their  office  during  good  behavior,  but  may,  after  due  hear- 
ing, be  removed  by  the  President  for  the  following  causes,  and 
no  other:  Neglect  of  duty,  malfeasance  in  office,  or  inefficiency. 
"That  hereafter  the  salary  of  each  of  the  general  appraisers  of 
merchandise  shall  be  at  the  rate  of  nine  thousand  dollars  per 
annum.  "That  the  boards  of  general  appraisers  and  the  mem- 
bers thereof  shall  have  and  possess  all  the  powers  of  a  circuit 
court  of  the  United  States  in  preserving  order,  compelling  the 
attendance  of  witnesses,  and  the  production  of  evidence,  and 
in  punishing  for  contempt. 

"All  notices  in  writing  to  collectors  of  dissatisfaction  of  any 
decision  thereof,  as  to  the  rate  or  amount  of  duties  chargeable 
upon  imported  merchandise,  including  all  dutiable  costs  and 
charges,  and  as  to  all  fees  and  exactions  of  whatever  character 
( except  duties  on  tonnage),  with  the  invoice  and  all  papers  and 
exhibits,  shall  be  forwarded  to  the  board  of  nine  general  ap- 
praisers of  merchandise  of  New  York  to  be  bv  rule  thereof 
assigned  for  hearing  or  determination,  or  both.  The  President 
of  the  United  States  shall  designate  one  of  the  board  of  nine 
general  appraisers  of  merchandise  as  president  of  said  board 
and  others  in  order  to  act  in  his  absence.  Said  general  ap- 
praisers of  merchandise  shall  be  divided  into  three  boards  of 
three  members  each,  to  be  denominated  respectivly  Board  1, 
Board  2,  and  Board  :>.  The  president  of  the  board  shall  assign 
three  general  appraisers  to  each  of  said  boards  and  shall  desig- 
nate one  member  of*  each  of  said  boards  as  chairman  thereof. 


304  ORIGINAL    JURISDICTION.  [§    76 

and  such  assignment  or  designation  may  be  by  him  changed 
from  time  to  time,  and  he  may  assign  or  designate  all  boards 
of  three  general  appraisers  where  it  is  no  wor  heretofore  was 
provided  by  law  that  such  might  be  assigned  or  designated  by 
the  Secretary  of  the  Treasury.  The  president  of  the  board 
shall  be  competent  to  sit  as  a  member  of  any  board  or  assign 
one  or  two  other  members  thereto,  in  the  absence  of  or  inability 
of  any  one  or  two  members  of  such  board.  Each  of  the  boards 
of  three  general  appraisers  where  it  is  now  or  heretofore  was 
full  power  to  hear  and  determine  all  cases  and  questions  aris- 
ing therein  or  assigned  thereto;  and  the  general  board  of  nine 
general  appraisers,  each  of  the  boards  of  three  general  appraisers 
and  each  of  the  general  appraisers  of  merchandise,  shall  have 
all  the  jurisdiction  and  powers  and  proceed  as  now,  heretofore, 
and  herein  provided.  The  said  board  of  nine  general  appraisers 
shall  have  power  to  establish  from  time  to  time  such  rules  of 
evidence,  practice,  and  procedure,  not  inconsistent  with  the 
statutes,  as  may  be  deemed  necessary  for  the  conduct  and  uni- 
formity of  its  proceedings  and  decisions  and  the  proceedings 
and  decisions  of  the  boards  of  three  thereof;  and  the  production, 
care,  and  custody  of.  samples  and  records  of  said  board.  The 
president  of  the  board  shall  have  control  of  the  fiscal  affairs  and 
the  clerical  force  of  the  board,  make  all  recommendations  for 
appointment,  promotion,  and  otherwise  affecting  said  clerical 
force;  he  may  at  any  time  before  trial  under  the  rules  of  said 
board  assign  or  reassign  any  case  for  hearing,  determination, 
or  both,  and  shall  designate  a  general  appraiser,  or  a  board  of 
general  appraisers,  and,  if  necessary,  a  clerk  thereto,  to  proceed 
to  any  port  within  the  jurisdiction  of  the  United  States  for 
the  purpose  of  hearing,  or  determining  if  authorized  by  law, 
causes  assigned  for  hearing  at  such  port,  and  shall  cause  to  be 
prepared  duly  promulgated  dockets  therefor.  No  member  of 
any  of  said  boards  shall  sit  to  hear  or  decide  any  case  on  appeal 
in  the  decision  of  which  he  may  have  previously  participated. 
The  board  of  three  general  appraisers,  or  a  majority  of  them, 
who  decided  the  case,  may.  upon  motion  of  either  party  made 
within  thirty  days  next  after  their  decision,  grant  a  rehearing 
or  retrial  of  said  case  when  in  their  opinion  the  ends  of  justice 
may  require  it. 

"§   13.     That  the   appraisers   shall   revise   and  correct   the 


§  76]  BOARD  OF  GENERAL  APPRAISERS.  305 

reports  of  the  assistant  appraisers  as  he  may  judge  proper, 
and  the  appraisers"  at  ports  where  there  is  no  appraiser,  the 
person  acting  as  such,  shall  report  to  the  collector  his  decision 
as  to  the  value  of  the  merchandise  appraised.  At  ports  where 
there  is  no  appraiser  the  certificate  of  the  customs  officer  to 
whom  is  committed  the  estimating  and  collection  of  duties,  of 
the  dutiable  value  of  any  merchandise  required  to  be  appraised, 
shall  be  deemed  and  taken  to  he  the  appraisement  of  such 
merchandise.  If  the  collector  shall  deem  the  appraisement  of 
any  imported  merchandise  too  low,  he  may,  within  sixty  days 
thereafter,  appeal  to  reappraisement,  which  shall  he  made  by 
one  of  the  general  appraisers,  or  if  the  importer,  owner,  agent 
or  consignee  of  such  merchandise  shall  be  dissatisfied  with  the 
appraisement  thereof,  and  shall  have  complied  with  the  re- 
quirements of  law  with  respect  to  the  entry  and  appraisement 
of  merchandise,  he  may  within  ten  days  thereafter  given  notice 
to  the  collector,  in  writing,  of  such  dissatisfaction.  The  decision 
of  the  general  appraiser  in  cases  of  reappraisement  shall  be 
final  and  conclusive  as  to  the  dutiable  value  of  such  merchan- 
dise against  all  parties  interested  therein,  unless  the  importer 
owner,  consignee,  or  agent  of  the  merchandise  shall  be  dissatis- 
fied with  such  decision,  and  shall,  within  five  days  thereafter, 
give  notice  to  the  collector,  in  writing,  of  such  dissatisfaction, 
or  unless  the  collector  shall  deem  the  reappraisement  of  the 
merchandise  too  low,  and  shall  within  ten  days  thereafter  appeal 
to  re-appraisement;  in  either  case  the  collector  shall  transmit 
the  invoice  and  all  the  papers  appertaining  thereto  to  the  board 
of  nine  general  appraisers,  to  be  by  rule  thereof  duly  assigned 
for  determination.  In  such  cases  the  general  appraiser  and 
boards  of  general  appraisers  shall  proceed  by  all  reasonable 
ways  and  means  in  their  power  to  ascertain,  estimate,  and  de- 
termine  the  dutiable  value  of  the  imported  merchandise,  ami 
in  so  doms  may  exercise  both  judicial  and  inquisitorial  func- 
tions.  In  such  cases  hearings  may  in  the  discretion  of  the 
General  Appraiser  or  board  of  General  Appraisers  before  whom 
the  case  is  pending  be  open  and  in  the  presence  of  the  importer 
or  his  attorney  and  any  duly  authorized  representative  of  the 
Government,  who  may  in  like  discretion  examine  and  cross- 
examine  all  witnesses  produced.  The  decision  of  the  appraiser, 
or  the  person  acting  as  such  (in  case  where  no  objection  is 
Fed.  Prac.  Vol.  I.— 20. 


f!06  ORIGINAL    JURISDICTION.  [§    76 

made  thereto,  either  by  the  collector  or  by  the  importer,  owner, 
consignee  or  agent)  or  the  single  general  appraiser  in  case  of 
no  appeal,  and  the  board  of  three  general  appraisers  in  all  re- 
appraisement  cases,  shall  be  final  and  conclusive  against  all 
parties  and  shall  not  be  subject  to  review  in  any  manner  for 
any  cause  in  any  tribunal  or  court,  and  the  collector  or  the 
person  acting  as  such  shall  ascertain,  fix  and  liquidate  the  rate 
and  amount  of  the  duties  to  be  paid  on  such  merchandise,  and 
the  dutiable  costs  and  charges  thereon  according  to  law. 

''§  14.  That  the  decision  of  the  collector  as  to  the  rate  and 
amount  of  duties  chargeable  upon  imported  merchandise,  in- 
cluding all  dutiable  costs  and  charges,  and  as  to  all  fees 
and  exactions  of  whatever  character  (except  duties  on  ton- 
nage), shall  be  final  and  conclusive  against  all  persons  in- 
terested therein,  unless  the  owner,  importer,  consignee,  or 
agent  of  such  merchandise,  or  the  person  paying  such  fees, 
charges,  and  exactions  other  than  duties,  shall,  within  fifteen 
days  after  but  not  before  such  ascertainment  and  liquidation 
of  duties,  as  well  in  cases  of  merchandise  entered  in  bond 
as  for  consumption,  or  within  fifteen  days  after  the  payment 
of  such  fees,  charges,  and  exactions,  if  dissatisfied  with  such 
decision,  give  notice  in  writing  to  the  collector,  setting  forth 
therein  distinctly  and  specifically,  and  in  respect  to  each 
entry  or  payment,  the  reasons  for  his  objections  thereto,  and 
if  the  merchandise  is  entered  for  consumption  shall  pay  the 
full  amount  of  the  duties  and  charges  ascertained  to  be  due 
thereon.  Upon  such  notice  and  payment  the  collector  shall 
transmit  the  invoice  and  all  the  papers  and  exhibits  connected 
therewith  to  the  board  of  nine  general  appraisers,  for  due 
assignment  and  determination  as  hereinbefore  provided  ;  such 
determination  shall  be  final  and  conclusive  upon  all  persons 
interested  therein,  and  the  record  shall  be  transmitted  to  the 
proper  collector  or  person  acting  as  such,  who  shall  liquidate 
the  entry  accordingly,  except  in  cases  where  an  application 
shall  be  filed  in  the  United  States  Court  of  Customs  Appeals 
within  the  time  and  in  the  manner  provided  for  in  this  Act. 

"§  15.  That  the  general  appraisers,  or  any  of  them,  are 
herein-  authorized  to  administer  oaths,  and  said  general  ap- 
praisers, the  board  of  general  appraisers,  the  local  appraisers 
or  the  collectors,  as  the  case  may  be,  may  cite  to  appear  before 


§  76]  BOARD  OF  GENERAL  APPRA1SEKS.  307 

them,  and  examine  upon  oath  any  owner,  importer,  agent,  con- 
signee, or  other  person  touching  any  matter  or  thing  which 
they,  or  either  of  them,  may  deem  material  respecting  any 
imported  merchandise,  in  ascertaining  the  dutiable  value  or 
classification  thereof;  and  they,  or  either  of  them,  may  re- 
quire the  production  of  any  letters,  accounts,  or  invoices  relat- 
ing to  said  merchandise,  and  may  require  such  testimony  to 
be  reduced  to  writing,  and  when  so  taken  it  shall  be  filed  in 
the  office  of  the  collector,  and  preserved  for  the  use  or  reference 
until  the  final  decision  of  the  collector  or  said  board  of  ap- 
praisers shall  be  made  respecting  the  valuation  or  classification 
of  said  merchandise,  as  the  case  may  be. 

"§  16.  That  if  any  person  so  cited  to  appear  shall  neglect 
or  refuse  to  attend,  or  shall  decline  to  answer,  or  shall  refuse 
to  answer  in  writing  any  interrogatories,  and  subscribe  his 
name  to  his  deposition,  or  to  produce  such  papers  when  so  re- 
quired by  a  general  appraiser,  or  a  board  of  general  appraisers, 
or  a  local  appraiser  or  a  collector,  he  shall  be  liable  to  a  penalty 
of  one  hundred  dollars ;  and  if  such  person  be  the  owner,  im- 
porter, or  consignee,  the  appraisement  which  the  general  ap- 
praiser, or  board  of  general  appraisers,  or  local  appraiser  or 
collector,  where  there  is  no  appraiser,  may  make  of  the  mer- 
chandise shall  be  final  and  conclusive ;  and  any  person  who  shall 
willfully  and  corruptly  swear  falsely  on  an  examination  before 
any  general  appraiser,  or  board  of  general  appraisers,  or  local 
appraiser  or  collector,  shall  be  deemed  guilty  of  perjury;  and 
if  he  is  the  owner,  importer,  or  consignee,  the  merchandise 
shall  be  forfeited. 

*'§  17.  That  all  decisions  of  the  general  appraisers  and  of 
the  boards  of  general  appraisers,  respecting  values  and  rates 
of  duty,  shall  be  preserved  and  filed,  and  shall  be  open  to  in- 
spection under  proper  regulations  to  be  prescribed  by  the  Secre- 
tary of  the  Treasury.  All  decisions  of  the  general  appraisers 
shall  be  reported  forthwith  to  the  Secretary  of  the  Treasury 
and  to  the  board  of  general  appraisers  on  duty  at  the  port  of 
Kew  York,  and  the  report  to  the  board  shall  be  accompanied, 
whenever  practicable,  by  samples  of  the  merchandise  in  ques- 
tion, and  it  shall  be  the  duty  of  the  said  board,  under  the  di- 
rection of  the  Secretary  of  the  Treasury,  to  cause  an  abstract 
to  be  made  and  published  of  such  decisions  of  the  appraisers  as 


o 


08  ORIGINAL    JURISDICTION.  [§    76 


they  may  deem  important,  and  of  the  decisions  of  each  of  the 
general  appraisers  and  boards  of  general  appraisers,  which 
abstract  shall  contain  a  general  description  of  the  merchandise 
in  question,  and  of  the  value  and  rate  of  duty  fixed  in  each  case, 
with  reference,  whenever  practicable,  by  number  or  other  des- 
ignation, to  samples  deposited  in  the  place  of  samples  al  New 
York,  and  such  abstract  shall  be  issued  from  time  to  time,  at 
least  once  in  each  week,  for  the  information  of  customs  officers 
and  the  public. 

*'§  22.  No  allowance  shall  be  made  in  the  estimation  and 
liquidation  of  duties  for  shortage  or  non-importation  caused  by 
decay,  destruction  or  injury  to  fruit  or  other  perishable  articles 
imported  into  the  United  States  whereby  their  commercial 
value  has  been  destroyed,  unless  under  regulations  prescribed 
by  the  Secretary  of  the  Treasury.  Proof  to  ascertain  such 
destruction  or  non-importation  shall  be  lodged  with  the  col- 
lector of  customs  of  the  port  where  such  merchandise  has  been 
landed,  or  the  person  acting  as  such,  within  ten  days  after  the 
landing  of  such  merchandise.  The  provisions  hereof  shall 
apply  whether  or  not  the  merchandise  has  been  entered,  and 
whether  or  not  the  duties  have  been  paid  or  secured  to  be  paid, 
and  whether  or  not  a  permit  of  delivery  has  been  granted  to 
the  owner  or  consignee.  Nor  shall  any  allowance  be  made  for 
damage,  but  the  importers  may  within  ten  days  after  entry 
abandon  to  the  United  States  all  or  any  portion  of  goods,  wares 
or  merchandise  of  every  description  included  in  any  invoice 
and  be  relieved  from  the  payment  of  the  duties  on  the  portion 
so  abandoned:  Provided,  That  the  portion  so  abandoned  shall 
amount  to  ten  per  centum  or  more  of  the  total  value  or  quantity 
of  the  invoice.  The  right  of  abandonment  herein  provided  for 
may  be  exercised  whether  the  goods,  wares  or  merchandise 
have  been  damaged  or  not,  or  whether  or  not  the  same  have 
any  commercial  value.  Provided  further,  That  section  twenty- 
eight  hundred  and  ninety-nine  of  the  Revised  Statutes,  relat- 
ing to  the  return  of  packages  unopened  for  appraisement,  shall 
in  no  wise  prohibit  the  right  of  importers  to  make  all  needful 
examinations  to  determine  whether  the  right  to  abandon  accrues, 
or  whether  by  reason  of  total  destruction  there  is  a  non-im- 
portation in  whole  or  in  part.  All  merchandise  abandoned  to 
the  Government  by  the  importers  shall  be  delivered  by  the  im- 


§    76]  BOARD  OF  GENERAL  APPRAISERS.  309 

porters  thereof  at  such  place  within  the  port  of  arrival  as  the 
chief  officer  of  customs  may  direct,  and  on  the  failure  of  the 
importers  to  comply  with  the  direction  of  the  collector  or  the 
chief  officer  of  customs,  as  the  case  may  he,  the  abandoned 
merchandise  shall  be  disposed  of  by  the  customs  authorities 
under  such  regulations  as  the  Secretary  of  the  Treasury  may 
prescribe,  at  the  expense  of  such  importers.  Where  imported 
fruit  or  perishable  goods  have  been  condemned  at  the  port  of 
original  entry  within  ten  days  after  landing  by  health  officers 
or  other  legally  constituted  authorities  the  importers  or  their 
agents  shall,  within  twenty-four  hours  after  such  condemnation, 
lodge  with  the  collector,  on  the  person  acting  as  collector,  of 
said  port,  notice  thereof  in  writing,  together  with  an  invoice 
description  and  the  quantity  of  the  articles  condemned,  their 
location,  and  the  name  of  the  vessel  in  which  imported.  Upon 
receipt  of  said  notice  the  collector,  or  person  acting  as  col- 
lector, shall  at  once  cause  an  investigation  and  a  report  to  be 
made  in  writing  by  at  least  two  customs  officers  touching  the 
identity  and  quantity  of  fruit  or  perishahle  goods  condemned, 
and  unless  proof  to  ascertain  the  shortage  of  non-importation 
of  fruit  or  perishable  goods  shall  have  been  lodged  as  herein  re- 
quired, or  if  the  importer  or  his  agent  fails  to  notify  the  col- 
lector of  such  condemnation  proceedings  as  herein  provided, 
proof  of  such  shortage  or  non-importation  shall  not  be  deemed 
established  and  no  allowance  shall  be  made  in  the  liquidation 
of  duties  chargeable  thereon. 

"Sec.  23.  That  whenever  it  shall  be  shown  to  the  satisfaction 
of  the  Secretary  of  the  Treasury  that,  in  any  case  of  unascer- 
tained or  estimated  duties,  or  payments  made  upon  appeal,  more 
money  has  been  paid  to  or  deposited  with  a  collector  of  customs 
than,  as  has  heen  ascertained  by  final  liquidation  thereof,  the 
law  required  to  be  paid  or  deposited,  the  Secretary  of  the  Treas- 
ury shall  direct  the  Treasurer  to  refund  and  pay  the  same  out 
of  any  money  in  the  Treasury  not  otherwise  appropriated.  The 
necessarv  moneys  therefor  are  hereby  appropriated,  and  this 
appropriation  shall  he  deemed  a  permanent  indefinite  appro- 
priation; and  the  Secretary  of  the  Treasury  is  hereby  author- 
ized to  correct  manifest  clerical  errors  in  any  entry  or  liquida- 
tion, for  or  against  the  United  States,  at  any  time  within  one 
vear  of  Hie  date  of  such  entrv,  hut  not  afterwards:   Provided, 


310  ORIGINAL    JURISDICTION.  [§    77 

That  the  Secretary  of  the  Treasury  shall,  in  his  annual  report 
to  Congress,  give  a  detailed  statement  of  the  various  sums  of 
money  refunded  under  the  provisions  of  this  Act  or  of  any  other 
Act  of  Congress  relating  to  the  revenue,  together  with  copies 
of  the  rulings  under  which  repayments  were  made."  * 

§  77.  Jurisdiction  of  the  Court  of  Customs  Appeals. 
The  Court  of  Customs  Appeals  was  created  by  the  Payne  Tariff 
Law  of  August  5,  1909.1  It  was  continued  by  the  Judicial 
Code  which  provides  for  the  same  as  follows: 

§  188.  There  shall  be  a  United  States  Court  of  Customs  Ap- 
peals, which  shall  consist  of  a  presiding  judge  and  four  associate 
judges,  each  of  whom  shall  be  appointed  by  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate,  and  shall  receive 
a  salary  of  seven  thousand  dollars  a  year.  The  presiding  judge 
shall  be  so  designated  in  the  order  of  appointment  and  in  the 
commission  issued  to  him  bv  the  President ;  and  the  associate 
judges  shall  have  precedence  according  to  the  date  of  their  com- 
missions. Any  three  members  of  said  court  shall  constitute  a 
quorum,  and  the  concurrence  of  three  members  shall  be  neces- 
sary to  any  decision  thereof.  In  case  of  a  vacancy  or  of  the 
Temporary  inability  or  disqualification,  for  any  reason,  of  one 
or  two  of  the  judges  of  said  court,  the  President  may,  upon 
the  request  of  the  presiding  judge  of  said  court,  designate  any 
qualified  United  States  circuit  or  district  judge  or  judges  to 
act  in  his  or  their  place ;  and  such  circuit  or  district  judges 
shall  be  duly  qualified  to  so  act. 

"§  180.  The  said  court  of  Customs  Appeals  shall  always  be 
open  for  the  transaction  of  business,  and  sessions  thereof  may, 
in  the  discretion  of  the  court,  be  held  in  the  several  judicial 
circuits,  and  as  such  places  as  said  court  may  from  time  to  time 
designate. 

"§  104.  The  said  Court  of  Customs  Appeals  shall  be  a  court 
of  record,  with  jurisdiction  as  in  this  chapter  established  and 
limited.  It  shall  prescribe  the  form  and  style  of  its  seal,  and 
the  form  of  its  writs  and  other  process  and  procedure,  and  exer- 
cise such  powers  conferred  by  law  as  may  be  conformable  and 
necessary  to  the  exercise  of  its  jurisdiction.  It  shall  have  power 
to  establish  all  rules  and  regulations  for  the  conduct  of  the  busi- 

§  7G.     136  St.  at  L.  11.  §  77.     136  St.  at  L.  11,  105, 


§    77]  COURT    OF    CUSTOMS    APPEALS.  311 

ness  of  the  court,  and  as  may  be  needful  for  the  uniformity  of 
decisions  within  its  jurisdiction  as  conferred  by  law.  It  shall 
have  power  to  review  any  decision  or  matter  within  its  juris- 
diction, and  may  affirm,  modify,  or  reverse  the  same  and  remand 
the  case  with  such  orders  as  may  seem  to  it  proper  in  the  prem- 
ises, which  shall  be  executed  accordingly. 

"§  195.  The  Court  of  Customs  Appeals  established  by  this 
chapter  shall  exercise  exclusive  appellate  jurisdiction  to  review 
by  appeal,  as  herein  provided,  final  decisions  by  a  Board  of 
General  Appraisers  in  all  cases  as  to  the  construction  of  the 
law  and  the  facts  respecting  the  classification  of  merchandise 
and  the  rate  of  duty  imposed  thereon  under  such  classification, 
and  the  fees  and  charges  connected  therewith,  and  all  appealable 
questions  as  to  the  jurisdiction  of  said  board,  and  all  appealable 
questions  as  to  the  laws  and  regulations  governing  the  collec- 
tion of  the  customs  revenues;  and  the  judgments  and  decrees  of 
said  Court  of  Customs  Appeals  shall  be  final  in  all  such  cases. 

"§  196.  After  the  organization  of  said  court,  no  appeal  shall 
be  taken  or  allowed  from  any  Board  of  United  States  General 
Appraisers  to  any  other  court,  and  no  appellate  jurisdiction  shall 
thereafter  be  exercised  or  allowed  by  any  other  courts  in  eases 
decided  by  said  Board  of  United  States  General  Appraisers ;  but 
all  appeals  allowed  by  law  from  such  Board  of  General  Apprais- 
ers shall  be  subject  to  review  only  in  the  Court  of  Customs 
Appeals  hereby  established,  according  to  the  provisions  of  this 
chapter:  Provided,  That  nothing  in  this  chapter  shall  be 
deemed  to  deprive  the  Supreme  Court  of  the  United  States  of 
jurisdiction  to  hear  and  determine  all  customs  cases  which  have 
heretofore  been  certified  to  said  court  from  the  United  States 
circuit  courts  of  appeals  on  applications  for  writs  of  certiorari 
or  otherwise,  nor  to  review  by  writ  of  certiorari  any  customs 
case  heretofore  decided  or  now  pending  and  hereafter  decided 
by  any  circuit  court  of  appeals,  provided  application  for  said 
writ  be  made  within  six  months  after  August  fifth,  nineteen 
hundred  and  nine;  Provided  further,  That  all  customs  case- 
decided  by  a  circuit  or  district  court  of  the  United  States  or  a 
court  of  a  Territory  of  the  United  States  prior  to  said  date 
above  mentioned,  and  which  have  not  been  removed  from  said 
courts  by  appeal  or  writ  of  error,  and  all  such  cases  theretofore 
submitted  for  decision  in  said  courts  and  remaining  undecided 


;J12  ORIGINAL    JURISDICTION.  [§    77 

may  be  reviewed  on  appeal  at  the  instance  of  either  party  by  the 
United  States  Court  of  Customs  Appeals,  provided  such  appeal 
be  taken  within  one  year  from  the  date  of  the  entry  of  the  or- 
der, judgment,  or  decrees  sought  to  be  reviewed."2 

"§  198.  If  the  importer,  owner,  consignee,  or  agent  of  any 
imported  merchandise,  or  the  collector  or  Secretary  of  the 
Treasury,  shall  be  dissatisfied  with  the  decision  of  the  Board 
of  General  Appraisers  as  to  the  construction  of  the  law  and  the 
facts  respecting  the  classification  of  such  merchandise,  and 
the  rate  of  duty  imposed  thereon  under  such  classification,  or 
with  any  other  appealable  decision  of  said  board,  they,  or  either 
of  them,  may,  within  sixty  days  next  after  the  entry  of  such  de- 
cree or  judgment,  and  not  afterwards,  apply  to  the  Court  of 
Customs  Appeals  for  a  review  of  the  questions  of  law  and  fact 
involved  in  such  decision:  Provided,  That  in  Alaska  and  in 
the  insular  and  other  outside  possessions  of  the  United  States 
ninety  days  shall  be  allowed  for  making  such  application  to  the 
Court  of  Customs  Appeals.  Such  application  shall  be  made  by 
filing  in  the  office  of  the  clerk  of  said  court  a  concise  statement 
of  errors  of  law  and  fact  complained  of;  and  a  copy  of  such 
statement  shall  be  served  on  the  collector,  or  on  the  importer, 
owner,  consignee,  or  agent,  as  the  case  may  be.  Thereupon  the 
court  shall  immediately  order  the  Board  of  General  Appraisers 
to  transmit  to  said  court  the  record  and  evidence  taken  by 
them,  toe-ether  with  the  certified  statement  of  the  facts  involved 
in  the  case  and  their  decision  thereon  ;  and  all  the  evidence  taken 
by  and  before  said  board  shall  be  competent  evidence  before 
said  Court  of  Customs  Appeals.  The  decision  of  said  Court 
of  Customs  Appeals  shall  be  final,  and  such  cause  shall  be  re- 
manded to  said  Board  of  General  Appraisers  for  further  pro- 
ceedings to  be  taken  in  pursuance  of  such  determination. 

"§  190.  Immediately  upon  receipt  of  any  record  transmitted 
to  said  court  for  determination  the  clerk  thereof  shall  place 
the  same  upon  the  calendar  for  hearing  and  submission,  and 
such  calendar  shall  be  called  and  all  cases  thereupon  submitted, 
except  for  good  cause  shown,  at  least  once  every  sixty  days: 
Provided,  That  such  calendar  need  not  be  called  during  the 
month  of  July  and  August  of  any  Year."  Prior  to  the  creation 
of  this  court,  the  (pies!  ions  of  law  and  fact  involved  in  the  de- 

2  36  St.  at  L.  1087. 


^    77]  COURT    OF    CUSTOMS    APPEALS.  313 

cisions  of  the  Board  of  General  Appraisers  were  reviewed  by 
the  Circuit  Court  of  the  United  States  within  the  district  in 
which  the  matter  arose.3  No  appeal  would  lie  from  the  deci- 
sion of  the  Hoard  of  General  Appraisers  ascertaining  and  fixing 
the  dutiable  value  of  goods  when  the  board  had  acted  regularly 
and  without  fraud  or  other  misunderstanding.4  The  return  of 
the  hoard  was  compared  to  a  master's  report.5  Where,  on  re- 
view by  a  Circuit  Court  of  a  decision  of  the  Board  of  General 
Appraisers,  the  record  returned  by  the  Board  was  defective  by 
reason  of  the  loss  of  the  evidence  on  which  the  Board's  findings 
were  based,  it  wjis  held  that,  no  other  evidence  being  presented, 
is  must  be  conclusively  presumed  that  the  findings  by  the  Board 
were  proper  and  justifiable.6  The  Board  may  make  a  different 
finding  from  the  local  appraiser  without  taking  additional  evi- 
dence.7 In  a  case  where  the  only  fact  certified  by  the  appraisers 
was  that  "silk  is  the  component  material  of  chief  value,"  it  was 
held  that  the  return  should  be  sent  back  for  a  further  statement. 
Judge  Lacombe  then  said:  "Had  the  board  also  certified  that 
the  articles  were  correctly  described  in  the  invoice  or  entry,  or 
in  the  appraisers'  return,  there  might  be  sufficient;  but,  as  it  is, 
there  is  nothing  to  show  wdiat  the  articles  really  are."8  In  a 
case  where  the  return  stated  that  "all  the  facts  involved  in  said 
case,  so  far  as  ascertained  by  the  board,  are  fully  stated  in  [a 
certain  opinion]  and  decision  annexed  thereto;  and  in  such 
opinion  it  was  stated,  that  inasmuch  as  some  of  the  questions 
raised  by  protest  were  "understood  to  be  now  pending  in  the 
United  States  courts,  [they]  do  not  deem  it  advisable  to  enter 
into  the  merits  of  the  same,  but  affirmed  the  [collector's]  as- 
sessment of  dues;"  a  further  return  was  ordered.9  A  single 
day's  delay  after  the  period  of  thirty  days  allowed  for  filing  the 
application  compelled  the  dismissal  of  the  appeal  although  the 
parties  have  gone  to  trial  in  the  Circuit  Court  upon  the  merits  "' 


10 


3  26    St.    at    L.,    ch.    407,    §    15,  6  Schoellkopf,     Hartford     &     Ma- 

p.  131;  35  St.  at  L.  403.    See  Louis-  clagan  v.  U.  S.,  147   Fed.  855. 

ville   Pub.   W.    Co.   v.    Collector,   49  7  TJ.  S.  v.  Strauss  Bros.  &  Co.,  128 

Fed.  501.  Fed.  473. 

4Passavant   v.   U.   S.,    148   U.    S.  8  R e  DieckerhofT.  45  Fed.  235. 

214,  37  L.  ed.  420.  9  Re   Blumlein,   45    Fed.   230:    Re 

5  Re  Van  Blankeusteyn,  C.  C.  A.,  Downing.  45    Fed.  412. 

56  Fed.  474.  10  Carriere   &    Son   v.    U.    S.,    163 

Fed.  1009. 


314: 


OlUGINAL    JURISDICTION. 


[§  77 


The  provision  in  the  former  Act,  that  upon  an  appeal  to  the 
Circuit  Court  the  board  should  return  "the  record  and  the  evi- 
dence taken  before  them,"  was  held  not  to  require  the  return  of 
evidence  which  was  excluded.11  Where  a  party  wished  to  have 
the  court  upon  appeal  review  evidence  that  had  been  excluded, 
he  was  required  either  to  except  below  to  the  ruling  excluding 
the  same  and  bring  the  matter  up  by  assignments  of  error  or  else 
offer  it  as  additional  evidence  upon  the  appeal.12  An  importer 
who  had  offered  evidence  before  the  board  was  not  thereby  pre- 
cluded from  introducing  new  evidence  in  the  Circuit  Court 
upon  an  appeal  from  the  board's  decision.13  Where  no  new  evi- 
dence was  offered  by  the  importers  before  the  Board  of  General 
Appraisers,  it  was  held  that  they  could  offer  none  before  the 
Circuit  Court.14 


11  Harris  v.  U.  S.,  177  Fed.  475. 

12  Ibid. 

13  Wm.  Wolff  &  Co.  v.  U.  S.,  168 
Fed.  970. 

14  William  F.  Allen  &  Co.  .v.  U. 
S.,  127  Fed.  777.  See  also  U.  S. 
v.  Klingenberg,  153  U.  S.  93,  38  L. 
od.  (547;  U.  S.  v.  Jahn,  155  U.  S. 
109,  39  L.  ed.  87;  U.  S.  v.  Lies,  170 
U.  S.  628,  42  L.  ed.  1170;  Earn- 
shaw  v.  U.  S.  146  U.  S.  60,  36 
L.  ed.  887 ;  Apgar  v.  Q.  S.,  C.  C.  A., 
78  Fed.  332;  Marine  v.  Lyon,  C.  C. 
A.,  65  Fed.  992;  U.  S.  v.  Davis,  C. 
C.  A.,  54  Fed.  147 ;  Re  Marquand,  57 
Fed.  189;  U.  S.  v.  Rosenwald,  C.  C. 
A.,  67  Fed.  323;  White  v.  U.  S.,  C. 
C.  A.,  72  Fed.  251 ;  U.  S.  v.  Lies,  74 
Fed.  546;  U.  S.  v.  Kenwortliy,  C. 
C.  A.,  68  Fed.  904;  "Zante  Cur- 
rants," 73  Fed.  183;  Sang  Lung 
v.  Jackson,  85  Fed.  502;   Foster  v. 


Vocke,  60  Fed.  745;  Be  Chase,  50 
Fed.  695;  Re  Wyman,  45  Fed.  469; 
Re  Sternbach,  44  Fed.  413;  Re 
Sherman,  49  Fed.  224 ;  s.  c,  sub 
nom.  Re  Collector  of  Customs,  C. 
C.  A.,  55  Fed.  276;  Re  Kursheedt 
Mfg.  Co.,  49  Fed.  633;  s.  c,  C.  C. 
A.,  54  Fed.  159;  Re  Muser,  49  Fed. 
831;  Re  Crowly,  50  Fed.  465;  S.  c, 
C.  C.  A.,  55  Fed.  283;  Re  Bache,  54 
Fed.  371 ;  s.  c,  U.  S.  v.  Baehe,  C.  C. 
A.,  59  Fed.  762;  Mexican  Onyx  & 
Tr.  Co.  v.  U.  S.,  66  Fed.  732;  Re 
Buffalo  Natural  Fuel  Co.,  73  Fed. 
191;  s.  c,  U.  S.  v.  Buffalo  N.  G.  F. 
Co.,  C.  C.  A.,  78  Fed.  110;  Stern 
v.  U.  S.,  77  Fed.  607;  Lesser  v.  U. 
S.,  89  Fed.  197;  U.  S.  v.  Hahn,  91 
Fed.  755;  Morris  E.  &  A.  Ex.  Co. 
v.  U.  S.,  94  Fed.  643;  Re  F.  W. 
Myers  &  Co.,  123  Fed.  952. 


CHAPTER  II. 

JURISDICTION   IN   EQUITY. 

§  78.  Equitable  jurisdiction  in  general.  Equity  is  that 
system  of  jurisprudence  which  was  administered  by  the  High 
Court  of  Chancery  of  England  in  the  exercise  of  its  extraordi- 
nary jurisdiction,  and  which  has  been  amplified  and  extended  by 
the  more  modern  decisions  of  the  English  and  American  courts. 
It  owed  its  origin  to  a  desire  upon  the  part  of  the  English  sov- 
ereigns and  their  chancellors  to  supplement  the  deficiencies  and 
soften  the  rigors  of  the  common  law;  and  whereas  the  well- 
springs  of  this  were  such  of  the  customs  of  the  German  tribes 
as  had  been  brought  with  them  from  their  Fatherland  by  the 
Jutes  and  Angles ; 2  those  of  that,  which  was  administered  at 
first  conclusively  bv  ecclesiastics  are  in  the  canon,  which  was 
itself  derived  from  the  greatest  monument  of  the  genius  of 
Ancient  Rome,  the  civil  law.3  Since  the  time  of  Xottingham, 
before  whom  each  succeeding  chancellor  had  decided  the  cases 
brought  before  him  in  accordance  with  his  own  notions  of  what 
was  proper,  or  in  the  language  of  Selden,4  measured  justice  out 
by  the  length  of  his  foot,  the  same  respect  has  been  paid  to 
precedent  in  the  courts  of  equity  and  common  law.  But  the 
rules  regulating  the  remedies  administered  by  the  former  are 
much  more  plastic.  And  even  at  the  present  time  cases  often 
occur  where  the  judges  sitting  at  equity,  with  the  approval  and 
assistance  of  the  profession,  invent  and  adopt  new  remedies 
suited  to  a  state  of  society  and  of  civilization  unknown  and  not 
anticipated  when  the  procedure  in  chancery  first  assumed  the 
form  that  it  still  substantially  retains.5     The  chronicles  of  the 

§  78.    1  Mitford's  Pleadings ;  Bisp-  5  Kennedy   v.   St.   Paul   &   Pacific 

ham's  Equity.  §  1.  E.    Co.,    2    Dill.    448;     Wallace    v. 

2  Holmes'  Com.  Law.  Loomis,  07  U.  S.  140.  24  L.  ed.  895; 

8Langdell's  Eq.  PI.,  Introduction.  Joy  v.   St.  Louis.   138   U.  S.   1,   50, 

4  Seld°en's      Table       Talk,      Title  34  L.  ed.  843,  850 ;  Toledo,  A.  A.  & 

"Equity."  N-  M-  Ry-  Co-  v-  Pennsylvania  Co., 

315 


316 


JURISDICTION    IX    EQUITY, 


[{ 


growth   and  development  of  equity  abound  with  names  well 
known  to  the  students,  as  well  of  general  history  as  of  juris- 
prudence.      Among    them    Wolsey,    More,    Bacon,    Clarendon, 
Somers,  and  Erskine  are  the  most  familiar  to  the  former,  while 
the  members  of  the  profession  look  back  with  especial  admira- 
tion upon  the  careers  of  Nottingham,  Hardwicke,  Eldon,  West- 
bury,   Kent,   Story,   and  Taney.      Although  originally  no  one 
could  seek  their  aid  who  was  not  denied  justice  by  the  courts 
of  common  law ;  yet  after  he  had  once  shown  a  title  to  their  as- 
sistance, courts  of  equity  would  almost  always  give  a  suitor  com- 
plete relief  in  the  matter  about  which  he  complained.6     And 
now  that  since  the  time  of  Mansfield  the  courts  of  common  law 
have,  abandoning  their  former  jealousy,  in  many  instances  of 
their  own  accord  as  well  as  under  the  compulsion  of  statutes, 
accepted  doctrines  first  created  by  courts  of  equity,7  the  latter 
have  not  felt  obliged  to  relinquish  the  jurisdiction  which  they 
formerly  acquired.8     One  of  the  marked  characteristics  which 
distinguish  equity  from  the  common  law,  is  that,  while  the  lat- 
ter, as  a  general  rule,  acts  against  and  exercises  control  over 
property  alone;  has  but  a  very  limited  and  merely  incidental 
power,  mostly  borrowed  from  chancery,  to  enforce  obedience  to 
a  personal  command,   its  procedure  being  founded  upon   the 
theory  that  the  parties  to  an  action  owe  no  obedience  to  the 
court;9  and  is  consequently  restricted   in   its  operation   when 
the  property  which  is  the  subject  of  a  contention  is  beyond  the 
reach  of  its  writs ;   equity  acts  directly  against  and  exercises 
complete  control  over  persons,   and   does  not  lose  jurisdiction 
when  the  parties  are  subject  to  its  process,  because  the  property 
over  which  it  thereby  assumes  control  is  beyond  the  territory 
under  those  laws  whence  its  own  power  is  derived.10 


19  L.R.A.  395,  5  Inters.  Com.  Rep. 
545,  54  Fed.  746,  751;  Wallwortb. 
v.  Holt,  4  Mylne  &  Cr.  G19. 

6  1  Fonblanque's  Equity,  b.  i,  ch. 
i;  §  3,  note  (/)  ;  Motteux  v.  London 
Assur.  Co..  1  Atk.  545:  Tayloe  v. 
Merchants'  Fire  Tns.  Co.,  9  How. 
390,  405,  13  L.  ed.  187. 

7  Moses  v.  Macferlan,  2  Burr. 
1005;  Dickerson  v.  Colgrove,  100 
U.  S.  578,  25  L.  ed.  618. 


8  Putnam  v.  New  Albany,  4  Biss. 
365. 

9  Langdell's  Eq.  PL,  §  40. 

10  Archer  v.  Preston,  1  Eq.  Cas. 
Ab.  133,  pi.  3,  cited  and  followed 
in  Arglasse  v.  Muschamp,  1  Vern. 
75;  s.  c..  1  Vein.  135:  Penn  v.  Lord 
Baltimore.  1  Yes.  Sr.  444;  Massie  v. 
Watts.  6  Crunch.  148,  3  L.  ed.  181; 
Muller  v.  Dows,  94  U.  S.  443,  24  L. 
ed.  207,  at  Pages  449-450.     The  au- 


§   TO] 


SURVEY   OF   EQUITABLE    JURISDICTION. 


317 


§  79.  General  survey  of  the  jurisdiction  of  courts  of 
equity.  The  jurisdiction  of  courts  of  equity  is  exercised  either 
for  the  protection  of  rights  which  the  common  law  does  not  rec- 
ognize; or  for  the  prevention  or  redress  of  wrongs  for  which 
the  common  law  affords  no  adequate  remedy.  A  full  considera- 
tion of  this  topic  is  beyond  the  scope  of  this  treatise.  The  fol- 
lowing summary,  although  imperfect,  may  occasionally  assist 
the  reader.  The  rights  which  a  court  of  equity  alone  respects 
are:  the  rights  of  beneficiaries  under  a  trust,1  either  express  or 


thorities  are  well  collected  in  a 
learned  opinion  by  Judge,  subse- 
quently Chief  Judge,  Henry  E. 
Davies,  in  Gardner  v.  Ogden,  22  N. 
Y.  327,  78  Am.  Dec.  192.  Cf.  Car- 
penter v.  Strange,  141  U.  S.  87,  106, 
35  L.  ed.  640,  647,  cited  infra, 
§  325. 

§  79.  l  Stuart  v.  Mellish,  2  Atk. 
610;  New  Orleans  v.  Morris,  105  U. 
S.  600,  26  L.  ed.  1184;  Smith  v. 
Am.  Nat.  Bank,  C.  C.  A.,  89  Fed. 
832.  By  a  legatee  against  an  ex- 
ecutor, Mayer  v.  Foulkrod,  4  Wash. 
C.  C.  349;  Speckart  v.  Schmidt,  C. 
C.  A.,  190  Fed.  499;  and  by  one 
of  the  next  of  kin  against  an  ad- 
ministrator and  his  sureties,  Payne 
v.  Hook,  7  Wall.  425,  19  L.  ed.  200; 
Pratt  v.  North  am,  5  Mason,  95, 
supra,  §  54 ;  to  recover  the  com- 
plainant's share  of  a  decedent's  es- 
tate. So  may  an  executor  to  estab- 
lish his  individual  claim  against 
the  estate.  Glover  v.  Patten,  165 
U.  S.  394,  41  L.  ed,  760.  By  a 
married  woman  to  recover  money 
which  belongs  to  her  separate  es- 
tate, Hunt  v.  Danforth,  2  Curt.  592. 
By  a  municipal  corporation  to  en- 
join the  sale  on  execution  of  prop- 
erty held  by  it  in  trust,  New  Or- 
leans v.  Morris,  105  U.  S.  600,  20 
L.  ed.  1184.  By  a  trustee  and  his 
beneficiary  to  obtain  possession  of 
land  subject  to  the  trust,  Harrison 
v.   Rowan,  4   Wash.  C.  C.  202.     To 


recover  from  a  bank  money  of  the 
plaintiff  deposited  by  a  third  per- 
son in  the  latter's  name,  Union  S. 
Y.  Bank  v.  Gillespie,  137  U.  S.  411, 
420,  34  L.  ed.  724,  727;  National 
Bank  v.  Insurance  Co.,  104  U.  S. 
54,  26  L.  ed.  658.  To  compel  the 
assignment  to  a  principal  by  his 
agent  of  judgments  recovered  by  the 
latter  for  the  benefit  of  the  former, 
Burke  v.  Davis,  63  Fed.  456.  But 
not  a  bill  by  the  assignee  of  a  cause 
of  action  to  enforce  for  his  own  use 
the  legal  right  of  his  assignor,  when 
he  seeks  the  aid  of  equity  merely 
upon  the  ground  that  he  cannot 
maintain  an  action  at  law  in  his 
own  name,  Hayward  v.  Andrews, 
100  U.  S.  672.  27  L.  ed.  271:  New 
York  Guaranty  Co.  v.  Memphis 
Water  Co.,  107  U.  S.  205,  27  L.  ed. 
484.  In  the  absence  of  any  statu- 
tory restrictions,  by  a  resident  tax- 
payer in  a  county  to  prevent  an  ille- 
gal disposition  of  the  county  funds, 
or  the  illegal  creation  of  a  debt 
which  he  in  common  with  the  other 
property  holders  there  may  be  com- 
pelled to  pay,  Field,  J.,  in  Cramp- 
ton  v.  Zabriskie,  101  U.  S.  601.  609, 
25  L.  ed.  1070,  1071.  By  the  bene- 
ficiary of  a  trust  against  his  trus- 
tee and  a  debtor  of  the  trust  estate 
to  enforce  a  cause  of  action  be- 
longing  to  the  trust  estate,  upon 
which  the  trustee  has  refused  to 
sue,  U.  S.  v.  Myers,  2  Brock.   516: 


318 


J  l  KISDICTION   IN    EQUITY, 


[i 


Davis  v.  Davis,  89  Fed.  532;  Brun 
v.  Mann,  12  L.R.A.(N.S.)  154,  151 
Fed.  145.  By  a  stockholder  in  a 
corporation  to  recover  its  money 
fraudulently  misappropriated  by  its 
directors,  Gindrat  v.  Dane,  4  Cliff. 
260.  See  infra,  §  145.  But  not,  by 
a  stockholder,  to  recover  damages 
for  a  depreciation  of  his  stock,  by 
an  injury  to  the  property  or  busi- 
ness of  the  corporation,  Kelly  v. 
Mississippi  River  Coaling  Co.,  175 
Fed.  4S2.  For  a  case  where  a  mi- 
nority dissenting  stockholder  was 
refused  a  decree  for  an  accounting 
by  a  consolidated  railroad  company, 
when  he  objected  to  the  merger  of 
his  corporation  therein,  see  Miller 
v.  Chicago  &  A.  R.  Co.,  198  Fed. 
G95.  By  a  stockholder  against  a 
corporation  to  compel  the  transfer 
of  stock  fraudulently  transferred  to 
another.  Kilgour  v.  N.  0.  Gas-Light 
Co.,  2  Woods,  144;  and  to  compel 
the  transfer  of  stock  to  its  equita- 
ble owners,  Mechanics'  Bank  v. 
Seton,  1  Pet.  299,  7  L.  ed.  152; 
Jessup  v.  Chicago  &  N.  W.  Ry.  Co., 
188  Fed.  931,  unless  it  has  been 
acquired  unconscientiously  or  for 
speculative  purposes,  Mississippi  & 
Mo.  R.  Co.  v.  Cromwell.  91  U.  S. 
043.  23  L.  ed.  307;  Foil's  Appeal, 
91  Pa.  St.  434,  438,  36  Am.  Rep, 
671;  Randolph's  Ex'r  v.  Quidnick 
Co.,  135  U.  S.  457,  34  L.  ed.  200. 
'"It  has  been  held  that  a  person 
may  purchase  stock  in  a  corpora- 
tion for  the  very  purpose  of  bring- 
ing a  stockholder's  suit,  and  that 
the  law  will  not  inquire  into  the 
motive  which  actuated  his  purchase. 
Bloxom  v.  Met.  Railway,  L.  R.  3 
Ch.  App.  337:  Seaton  v.  Grant,  L. 
R.  2  Ch.  App.  459;  Elkins  v.  Cam- 
den &  Atlantic  Railroad.  30  N.  J. 
Fq.  5."  Brown,  J.,  in  Dickerman 
v.  Northern  Trust  Co..  176  U.  S. 
181,    192,   44   L.   ed.   423,   430.      See 


Jahu  v.  Champagne  Lumber  Co., 
147  Fed.  631.  In  the  absence  of 
statutory  authority,  a  private  indi- 
vidual cannot  file  a  bill  to  obtain 
the  forfeiture  of  a  corporate  fran- 
chise, Gaylord  v.  Fort  Wayne,  M.  & 
C.  R.  Co.,  6  Biss.  286.  Nor  a  stock- 
holder a  bill  to  dissolve  a  foreign 
corporation  under  a  statute  of  the 
country  which  chartered  it,  Repub- 
lican Silver  Mines  v.  Brown,  24 
L.R.A.  776,  58  Fed.  644.  But  see 
F.  L.  &  Tr.  Co.  v.  Sioux  Falls.  131 
Fed.  890.  Nor,  in  the  absence  of  a 
State  or  Federal  statute,  can  a  bill 
for  the  dissolution  of  a  State  cor- 
poration be  maintained,  Jacobs  v. 
Mexican  Sugar  Co.,  130  Fed.  589, 
592.  where  the  court  said  that  the 
New  Jersey  statute,  authorizing  a 
dissolution  of  a  corporation  by  the 
state  court  of  chancery,  could  be 
followed  by  the  Federal  court.  Tn 
Conklin  v.  U.  S.  Ship  Building  Co., 
140  Fed.  219,  held,  that  such  a  stat- 
ute could  not  be  followed  by  the 
Federal  court,  infra,  §  82.  For  the 
power  of  congress  to  enact  a  statute 
regulating  the  internal  management 
of  state  corporations  and  authoriz- 
ing the  disintegration  of  its  assets 
by  the  Federal  courts,  see  Northern 
Securities  Co.  v.  U.  S.,  193  U.  S. 
197,  48  L.  ed.  679.  Nor  can  a  cor- 
poration be  enjoined  from  acting  be- 
yond its  legal  powers  at  the  suit  of 
a  business  rival  not  one  of  its  stock- 
holders, Railroad  Co.  v.  Fllerman, 
105  U.  S.  160,  26  L.  ed.  1015.  To 
compel  specific  performance  of  a 
contract  for  the  sale  of  a  patent- 
right.  Hall  v.  Pitrat,  45  Fed.  94, 
of  a  contract  to  issue  an  insurance 
policy,  and  in  the  same  suit  to  com- 
pel payment  of  the  policy,  Tayloe 
v.  Merchants'  F.  Ins.  Co.,  9  How. 
390,  13  L.  ed.  187;  Hebert  v.  Mu- 
tual L.  Ins.  Co..  12  Fed.  S07 :  Brug- 
ger    v.    State   Inv.   Ins.    Co..   5   Saw. 


79] 


SURVEY   OF   EQUITABLE    JURISDICTION. 


319 


304;  of  a  contract  for  the  purchase 
of  an  entire  stock  of  general  mer- 
chandise for  a  lump  sum,  that  had 
been  paid  when  it  was  alleged  that 
defendant  had  delivered  about  two- 
tin  rds  of  the  goods,  but  refused  to 
deliver  the  remainder,  which  he  had 
concealed,  so  that  complainant  could 
not  obtain  them  by  an  action  of  re- 
plevin, Raymond  Syndicate  v. 
Brown,  124  Fed.  80;  of  a  contract 
between  a  railroad  and  a  telegraph 
company,  authorizing  the  mainte- 
nance and  operation  of  the  tele- 
graph line  upon  the  railroad  com- 
pany's right  of  way,  with  a  provi- 
sion for  free  telegraph  service  to  be 
given  to  the  railroad  company,  and 
a  graoit  to  the  railroad  company  of 
the  right  to  string  and  use  a  wire. 
Western  Union  Tel.  Co.  v.  Pennsyl- 
vania Co.,  C.  C.  A.,  68  L.R.A.  968, 
129  Fed.  849;  Pennsylvania  R.  Co. 
v.  St.  L.,  A.  &  T.  H.*R.  Co.,  118  U. 
S.  290,  30  L.  ed.  83;  Franklin  Tel. 
Co.  v.  Harrison,  145  U.  S.  459,  30 
L.  ed.  83;  St.  Louis  A.  &  T.  H.  R. 
Co.  v.  I.  &  St.  L.  R.  Co.,  9  Biss.  144. 
But  not  of  a  contract  containing  a 
power  of  revocation  by  the  defend- 
ant, Express  Co.  v.  Railroad  Co.,  99 
U.  S.  191,  25  L.  ed.  319.  It  has 
been  held  that  a  provision  that  the 
employer  may  terminate  by  ten 
days'  notice  a  contract  does  not  pre- 
vent his  obtaining  an  injunction 
against  its  violation  by  the  em- 
ployee. Phila.  Ball  Club  v.  Lajoie, 
202  Pa.  210,  58  L.R.A.  227,  90  Am. 
St.  Rep.  627,  51  Atl.  973.  Nor  of 
a  bill  to  compel  a  railway  company 
to  maintain  its  permanent  terminus 
at  a  certain  place,  Texas  &  Pac.  Ry. 
Co.  v.  Marshall,  136  U.  S.  393,  34 
L.  ed.  385.  But  a  bill  was  sustained 
to  compel  specific  performance  of  a 
covenant,  to  construct  and  to  main- 
tain a  station  upon  land  which  the 
complainant  had  conveyed  to  a  rail- 


road company,  Murray  v.  North- 
western R.  Co.,  64  S.  C.  520,  42  S. 
E.  617.  Nor,  except  perhaps  under 
special  circumstances,  to  compel  a 
railroad  company  to  compel  specific 
performance  by  either  party  to  a 
contract  for  the  construction  of  a 
railroad,  Strang  v.  Richmond,  P.  & 
C.  R.  Co.,  93  Fed.  71.  See  also  Fal- 
lon v.  Railroad  Co.,  1  Dill.  121; 
Ross  v.  Union  Pac.  Ry.  Co.,  1 
Woolw.  26.  As  early  as  Year  Book 
8  ed.  IV.  4,  it  was  held  that  spe- 
cific performance  of  a  contract  to 
build  could  be  decreed.  But  the 
adequacy  of  the  plaintiff's  remedy 
at  law,  as  he  could  have  the  work 
done  by  a  stranger  to  the  contract, 
as  well  as  the  difficulty  of  super- 
vision, afterwards  led  the  courts  to 
refuse  to  take  jurisdiction  in  the 
case  of  an  ordinary  building  con- 
tract. Errington  v.  Aynesly  (1788) 
2  Bro.  Ch.  341 ;  Lucas  v.  Commer- 
ford  (1790)  3  Bro.  Ch.  166.  Where, 
however,  the  building  is  to  be  done 
on  land  conveyed  to  the  defendant 
as  consideration  the  plaintiff  can 
obtain  the  expected  benefit  in  no 
other  way;  and  in  such  cases  the 
courts  do  not  always  find  insur- 
mountable the  difficulty  that  super- 
vision of  the  construction  or  even 
of  indefinite  maintenance  is  in- 
volved. Hood  v.  N.  E.  R.  Co. 
(1869)  L.  R.  8  Eq.  666;  Gregory 
v.  Ingwersen  (1880),  32  N.  J.  Eq. 
199;  Lawrence  v.  Saratoga  Lake  R. 
Co.  (1885).  36  Hun,  467;  Jones  v. 
Parker  (1895),  163  Mass.  564,  47 
Am.  St.  Rep.  485,  40  N.  E.  1044. 
It  has  been  said  that  a  court  of 
equity  has  no  power  to  seize  a  man's 
property,  and  through  its  officers 
complete  a  bridge  in  pursuance  of 
a  contract  which  he  has  made. 
Texas  &  St.  Louis  Ry.  Co.  v.  Rust, 
17  Fed.  275.  To  establish  an  attor- 
ney's lien.     Coram  v.  Ingersoll,  211 


320 


JUKI  SDK  TION    IN    EQUITY. 


[§   79 


implied, — which  latter  term  includes  those  which  are  resulting' 
or  constructive : 3  the  right  to  be  relieved  from  an  obligation 
which  has  been  entered  into,  or  to  recover  a  right  which  has  been 
lost  by  accident, — 4  which  expression  is  said  to  include  the  cases 
where  one  has  become  subject  to  a  penalty  or  forfeiture.5  or  has 
lost  a  document  the  possession  of  which  was  essential  to  his 
success  in  an  action  at  common  law,6  and  is  also  often  used  to 
bolster  up  a  weak  equity  of  another  kind — ;7  by  mistake,8 — 
which  must  be  mutual,  material,  and  not  caused  by  the  negli- 
gence of  the  party  seeking  relief,9  and  which,  if  solely  of  a  point 


U.  S.  335.  By  the  holder  of  a  cor- 
porate bond  or  other  claim  to  en- 
force his  lien  upon  tolls  or  other 
income  pledged  to  secure  its  pay- 
ment. Good  Templars'  L.  Ass'n  v. 
United  L.  I.  Ass'n,  59  Fed.  220; 
Grand  Trunk  Ry.  Co.  v.  Central  Vt. 
Ry.  Co.,  85  Fed.  ST.  See  Townsend 
v.  Yanderwerker,  160  U.  S.  171,  40 
L.  ed.  383;  Vallette  v.  White  W.  V. 
C.  Co.,  4  McLean,  192. 

2  Dyer  v.  Dyer,  2  Cox  Eq.  Cas.  92 ; 
Hoxie  v.  Carr,  1  Sumn.  173. 

3  National  Bank  v.  Insurance  Co., 
104  U.  S.  54,  64-71,  26  L.  ed.  693, 
698-700. 

4L.  Bucki  &  Son  Lumber  Co.  v. 
Atlantic  Coast  Line  Co.,  C.  C.  A., 
116  Fed.  1.  To  enjoin  a  township 
from  setting  up,  as  a  defense  to  an 
action  upon  bonds  issued  by  it,  the 
accidental  omission  of  the  town  seal 
thereon.  Bernard's  Township  v. 
Stebbins,  109  U.  S.  341,  27  L.  ed. 
956. 

5  1  Spence  Eq..  §§  629,  630:  Bisp- 
ham's  Eq.,  §  178.  Mortgages  are 
included  under  this  head.  Mitford's 
PI.  118-276;  Story's  Eq.  Jur.,  §  89. 
To  set  aside  a  contract  entered  into 
by  a  mistake  of  law,  the  execution 
of  which  would  subject  the  com- 
plainant to  penalties  under  the 
anti-trust  law.  Chalmers  Chemical 
Co.  v.  Chadeloid  Chemical  Co.,  175 
Fed.  995. 


6  Savannah  Nat.  Bank  v.  Haskins, 
101  Mass.  370,  3  Am.  Rep.  373; 
Donaldson  v.  Williams,  50  Mo.  408; 
Story's  Eq.  Jur.,  §  84;  Bispham's 
Eq.,  §§  176,  177.  But  not.  it  has 
been  said,  to  assist  in  maintaining 
an  action  for  a  tort.  Security  S. 
&  L.  Ass'n  v.  Buchanan,  C.  C.  A., 
66  Fed.  799. 

Story's  Eq.  Jur.,  §§  90-99;  Bisp- 
ham's Eq.,  §§  182,  183.  Cases  where 
this  head  of  equity  is  invoked  for 
relief  against  a  defective  execution 
of  a  power  are  included  here. 

8  For  a  case  where  relief  was  de- 
nied because  of  negligence,  see  Ar- 
mour &  Co.  v.  Renaker,  191  Fed.  48. 
The  court  refused  to  set  aside  a 
judgment  recovered  in  favor  of  the 
United  States  through  an  alleged 
misunderstanding  between  the  de- 
fendant and  the  district  attorney. 
Buckley  v.  U.  S.,  196  Fed.  429. 

9  Bispham's  Eq.,  §  191;  Whitte- 
more  v.  Farrington,  76  N.  Y.  452; 
McFerran  v.  Taylor,  3  Cranch,  281, 
2  L.  ed.  440;  Elliott  v.  Sackett,  108 
U.  S.  132,  27  L.  ed.  678;  Williams 
v.  U.  S..  138  U.  S.  514,  34  L.  ed. 
1026;  Duke  of  Beaufort  v.  Neeld, 
12  CI.  &  Fin.  248,  286;  Stephenson 
v.  Wilson,  2  Vern.  325:  New  River 
Mineral  Co.  v.  Seeley,  C.  C.  A.,  120 
Fed.  193.  To  reform  an  instrument 
executed    by    mistake.      Walden    v. 


§   T9] 


SURVEY   OF    EQUITABLE    JURISDICTION. 


321 


of  law,  will  very  rarely  release  one  from  his  contractual  obli- 
gations— ; 10  by  fraud,  whether  actual  n  or  constructive ; 12  or  by 


Skinner,  101  U.  S.  577,  25  L.  ed. 
963. 

io  Hunt  v.   Rousmanier's   Adm'rs, 

8  Wheat.  174.  215,  5  L.  e<l.  589, 
500;  s.  c,  1  Pet.  1,  14,  7  L.  ed.  33; 
Snell  v.  Insurance  Co.,  98  U.  S.  85, 
25  L.  ed.  52;  Pitcher  v.  Hennessey, 

48  N.  Y.  415:  Adair  v.  Brimmer,  74 
X.  Y.  539;  Relief  F.  Ins.  Co.  v. 
Shaw,  94  U.  S.  574,  24  L.  ed.  291; 
Allen  v.  Calloway.  30  Fed.  400; 
Cooper  v.  Phibbs,  L.  R.  2  II.  L.  170; 
Elliott  v.  Sackett,  108  U.  S.  132, 
142,  27  L.  ed.  078,  082:  Taylor  v. 
Holmes,  127  U.  S.  489,  32  L.  ed. 
179:  Pope  Mfg.  Co.  v.  Gormully, 
144  U.  S.  224,  30  L.  ed.  414:  Pope 
Mfg.  Co.  v.  Gormully  &  Jeffery  Co., 
144  U.  S.  238,  36  L.  ed.  420;  Gris- 
wold  v.  Hazard.  141  U.  S.  200.  35 
L.  ed.  078;  Mutual  Life  Ins.  Co.  v. 
Fliinney,  178  U.  S.  327,  342,  44  L. 
ed.  1088.  1095:  Hamhlin  v.  Bishop, 
41  Fed.  74:  Bailey  v.  Am.  Cent.  Ry. 
Co.,  13  Fed.  250:  Sias  v.  Roper  Wil- 
liams Ins.  Co.,  8  Fed.  183:  Sampson 
v.  Mudge,  13  Fed.  200. 

11  Cobbeltiom  v.  William,  Chan. 
Cal.  II;  Stonehouse  v.  Starishaw, 
Chan.  Cal.  XXTX ;  Bief  v.  Dyer. 
Chan.  Cal.  XI:  Bacon  v.  Bronson, 
7  Johns.  Ch.  (X.  Y.)  194,  11  Am. 
Dec.  449:  Jones  v.  Bolles,  9  Wall. 
364,  19  L.  ed.  734.  A  bill  was  sus- 
tained when  tiled  by  the  Consul  of 
Austria  and  Hungary,  to  restrain  a 
beneficial  association  from  using  the 
name  of  the  Emperor  of  Austria  and 
Hungary,  as  a  part  of  its  corporate 
name,  and  the  use  of  his  portrait 
as  a  part  of  its  advertising  litera- 
ture, in  order  fraudulently  to  in- 
duce bis  subjects,  residents  in  the 
United  States,  to  believe  that  the 
association  is  conducted  under  the 
customs  of  their  own  country,  and 
Fed.   Prac.  Vol.  I— 21. 


that  their  Emperor  is  identified 
with  the  same  and  a  patron  thereof. 
Von  Thororovich  v.  Franz  Josef 
Beneficial  Ass'n,  154  Fed.  911.  But 
not  a  bill  to  recover  damages  for  a 
fraudulent  misrepresentation.  Rus- 
sell v.  Clark,  7  Cranch,  69,  3  L.  ed. 
271;  White  v.  Boyce,  21  Fed.  228. 
"In  cases  of  fraud  and  mistake,  as 
under  any  other  head  of  chancery 
jurisdiction,  a  court  of  the  United 
States  will  not  sustain  a  bill  in 
equity  to  obtain  only  a  decree  for 
the  payment  of  money  by  way  of 
damages,  when  the  like  amount  can 
be  recovered  in  an  action  sounding 
in  tort  or  for  money  had  and  re- 
ceived." Per  Gray.  J.,  in  Buzard 
v.  Houston,  119  U.  S.  347.  352,  30 
L.  ed.  451,  453.  Even  when  sought 
as  an  alternative  to  a  prayer  for 
a  rescission.  Alger  v.  Anderson,  92 
Fed.  090.  Xor  for  a  fraudulent 
conspiracy.  Ambler  v.  Choteau,  107 
U.  S.  580.  27  L.  ed.  322.  Xor,  it 
has  been  held,  a  bill  filed  by  an 
insurance  company,  after  a  loss  has 
occurred,  to  obtain  the  cancellation 
of  a  policy  procured  by  fraud. 
Home  Ins.  Co.  v.  Stanchlield.  1 
Dill.  424;  Insurance  Co.  v.  Bailey. 
13  Wall.  616,  20  L.  ed.  501  ;  Mutual 
Life  Ins.  Co.  v.  Griesa,  156  Fed. 
398;  Griesa  v.  Mutual  Life  Tns.  Co., 
C.  C.  A..  109  Fed.  509.  Xot  even 
where  the  State  courts  of  equity 
took  jurisdiction  of  bills  of  a  simi- 
lar character.  Niagara  Fire  Ins. 
Co.  v.  Adams.  C.  C.  A.,  198  Fed.  822. 
Contra,  U.  S.  Life  Ins.  Co.  v.  Cable. 
C.  C.  A.,  98  Fed.  761;  Mutual  Life 
Ins.  Co.  v.  Pearson.  114  Fed.  39.5. 
Xor.  it  has  been  held,  where  the 
suit  is  brought  by  several  insurers. 
the  liability  of  each  being  propor- 
tioned to  the  total  amount  of  valid 


322 


JURISDICTION    IN    EQUITY. 


[§   TO 


duress; 13  and  the  rights  of  those  who  are  justly  entitled  to  com- 
pel election  under  a  will,14  subrogation 15  or  an  adjustment 
of  liabilities, — under  which  term  are  included  set-ofT,16  con- 
tribution,17 exoneration,18  and  marshaling-  of  securities.19  The 
cases  where  the  jurisdiction  of  equity  is  exercised  merely  for 
the  sake  of  the  remedy  are  where  its  interposition  is  needed  to 
assist  in  obtaining  a  judgment  at  law  by  compelling  a  discovery 
from  a  defendant,20  or  the  perpetuation  of  the  testimony  of  wit- 
nesses,21 or  their  examination  abroad,22  when  it  is  feared  that 


insurance,  and  an  accounting  be- 
tween them  is  prayed.  Mechanics' 
Ins.  Co.  v.  C.  A.  Hoover  Distilling 
Co.,  ('.  C.  A.,  173  Fed.  8S8,  32 
L.R.A.(N.S.)    940. 

l2Maekreth  v.  Fox,  4  Bro.  P.  C. 
258 ;  Ex  parte  Lacey,  6  Ves.  625 ; 
Villa  v.  Rodriguez,  12  Wall.  323, 
339,  20  L.  ed.  406,  410;  Adams  v. 
Cowen,  177  U.  S.  471,  484,  44  L.  ed. 
851,  855. 

WNicholls  v.  Nicholls,  1  Atk. 
409;  Gould  v.  Okeden,  4  Bro.  P.  C. 
]98;  Baker  v.  Morton,  12  Wall.  150, 
20  L.  ed.  262. 

14  Arnold  v.  Kempstead,  1  Amb. 
466;  Jones  v.  Collier,  2  Amb.  730; 
Herbert  v.  Wren,  7  Cranch,  370,  378, 
3  L.  ed.  374,  377. 

15  First  Nat.  Bank  v.  City  Tr.,  S. 
D.  &  Surety  Co.,  C.  C.  A.,  114  Fed. 
529. 

16  Chapman  v.  Derby,  2  Vern. 
117:  Lord  Lanesborough  v.  Jones, 
1  P.  Wms.  325:  2  Story's  Eq.  Jur., 
§  1433:  Story,  J.,  in  Greene  v.  Dar- 
ling, 5  Mason,  201,  207-213;  North 
Chicago  R.  M.  Co.  v.  St.  Louis  O. 
&  S.  Co.,  152  U.  S.  596,  38  L.  ed. 
565;  Anglo-Am.  Provision  Co.  v. 
Davis  Pr.  Co.,  112  Fed.  574;  Suther- 
land limes  Co.  v.  American  Wired 
Hoop  Co..  C.  C.  A.,  113  Fed.  1S3: 
L.  Bucki  &  Son  Lumber  Co.  v.  At- 
lantic Lumber  Co.,  C.  C.  A..  116 
Fed.  1.  Loy  v.  Alston.  C.  C.  A.,  172 
Fed.  90. 


17  Layer  v.  Nelson,  1  Vern.  456; 
Howards  v.  Selden,  5  Fed.  465.  473. 
A  bill  for  an  account  of  general 
average  and  decree  of  contribution 
lias  been  sustained.  Sturgess  v. 
Cary,  2  Curt.  59. 

iSGalton  v.  Hancock,  2  Atk.  425; 
Walker  v.  Jackson,  2  Atk.  625; 
Bank  of  U.  S.  v.  Beverly,  1  How. 
134,  151,  11  L.  ed.  75,  82. 

WAldrich  v.  Cooper,  8  Ves.  394; 
Trimmer  v.  Bayne,  9  Ves.  209;  Re 
Metropolitan  Railway  Receivership, 
208  U.  S.  90,  52  L.  ed.  403.  A  bill 
may  be  sustained  when  the  defend- 
ant's land  is  so  encumbered,  by  dif- 
ferent liens,  that  it  does  not  appear 
probable  that  it  could  be  sold  ad- 
vantageously without  an  adjust- 
ment of  the  priority  and  rights  of 
the  several  lienholders.  Huff  v. 
Bidwell,  C.  C.  A.,  151  Fed.  563. 

20  Finch  v.  Finch,  2  Ves.  Sr.  491; 
Moodalay  v.  Morton,  1  Bro.  C.  C. 
469;  Brown  v.  Swann,  10  Pet,  497, 
500,  9  L.  ed.  508;  Heath  v.  Erie 
Ry.  Co.,  9  Blatchf.  316. 

21  Earl  of  Suffolk  v.  Green,  1  Atk. 
450;  Pearson  v.  Ward,  1  Cox  Eq. 
177;  Lord  Dursley  v.  Berkeley,  6 
Ves.  251  ;  Richter  v.  Union  Tr.  Co., 
115  U.  S.  55,  29  L.  ed.  345;  N.  Y. 
&  B.  C.  P.  Co.  v.  N.  Y.  C.  P.  Co., 
9  Fed.  578.  See  U.  S.  R.  S.,  §§  863- 
867,  and   infra.  §  345. 

22  Moodalay  v.  Morton,  1  Bro.  C. 
C.  469. 


§  79] 


SURVEY   OF   EQUITABLE    JURISDICTION. 


323 


on  account  of  death,  illness,  or  absence,  they  cannot  be  obliged 
to  attend  upon  the  trial ;  in  rare  cases  to  grant  a  new  trial ;  to 
satisfy  a  judgment  out  of  property  of  a  debtor  which  cannot  be 


23  Folsom  v.  Ballard,  C.  C.  A.,  70 
Fed.  12.     To   set  aside  a  judgment 
obtained    by    accident,    mistake,    or 
fraud.     Metcalf  v.  Williams,  104  U. 
S.  93,  05.  20  L.  ed.  665,  666:    Cole- 
man v.  U.  S.,  181   Fed.  599.     To  set 
aside  an  award  by  arbitrators  upon 
allegations    of    misconduct    not    ap- 
parent   on    the    face    of    the    award, 
nor  affecting  the  jurisdiction  of  the 
arbitrators.      Hartford    F.    Ins.    Co. 
v.   Bonner   Mercantile   Co.,   44   Fed. 
151,   156.     But  not  to  set  aside  or 
enjoin     proceedings     to     enforce     a 
judgment  at  law  because  of  fraud; 
unless    the    complainant    had    a    de- 
fense to  the  action  upon  the  merits. 
White   v.   Crow,   110   U.   S.   183,   28 
L.  ed.  113.     Contra,  Mills  v.  Scott, 
43   Fed.   452;    and   either  the   fraud 
was    extrinsic    to    the    matter    tried 
and  not  in  issue  in  the  former  suit, 
nor  then  known  to  the  complainant, 
or  else  some  unconscientious  advan- 
tage   was    taken    of    the    successful 
judgment   debtor   during   the    prog- 
ress  of  the   suit  without  any  fault 
or   negligence   upon    bis   part.      Life 
Ins.   Co.   v.   Bangs,    103   U.   S.    780, 
782,  26   L.  ed.   60S,   609;    Cragin   v. 
Lovell,  109  U.  S.  194,  27  L.  ed.  903: 
Nat.   Surety   Co.   v.  State  Bank,   C. 
C.  A.,  61  L.R.A.  394;  120  Fed.  593; 
Aldrich    v.    Crump,    128    Fed.    984. 
See  Knox  County  v.  Harshman,  133 
U.   S.   152,   33   L.   ed.   586;    Leaven- 
worth County  Com'rs  v.  Chicago,  R. 
I.  &  P.  Ry.  Co..   134  U.  S.  688.  33 
L.  ed.  1064:   Sanford  v.  White,  132 
Fed.  531.     Nor  to  set  aside  a  judg- 
ment  at   law.      Lewis  v.   Cocks,   23 
Wall.    466:    or    a   decree    in    equity. 
Yeatman  v.  Bradford.  44  Fed.  536; 
for    an    omission    to    serve    a    party 


to   the   same,   except   perhaps   when 
the  record  shows  an  apparent  serv- 
ice.    Where  a  party  refused  to  carry 
out  a  lost  stipulation,  that  a  judg- 
ment  should    abide   the   result   of   a 
\\  rit  of  error  to  another    judgment, 
but  did  not  deny  that  he  had  made 
the  same,  it  was  held  that  a  bill  in 
equity  to  vacate  the  judgment  could 
not  be  sustained,  because  the   com- 
plainant   had    an    adequate    remedy 
at  law.     Brown  v.  Arnold,  127  Fed. 
387.     Nor  to  set   aside  a  judgment 
recovered    in    favor    of    the    United 
States  through  an  alleged  misunder- 
standing between  the  defendant  and 
the    district    attorney.      Buckley    v. 
U.  S.,  196  Fed.  429.    Nor  for  newly 
discovered  evidence,  unless  the  com- 
plainant  shows   that   his   failure   to 
discover  the  same  before  the  former 
trial    was    not    attributable    to    his 
own    want    of    diligence:    nor    when 
the    evidence    ought    to    have    been 
within   the   knowledge   of  the   party 
when    he    made    his    defense    to    the 
action  at  law.     Pickfo'rd  v.  Talbott. 
225  U.  S.  651,  56  L.  ed.  1240.     Nor, 
in    the   absence   of   a    State   statute 
authorizing  such  a  proceeding,  a  bill 
to  set  aside  the  probate  of  a  will. 
Broderick's   Will.   21    Wall.   503.   22 
L.  ed.   599;    Ellis  v.   Davis,   109   U. 
S.  485,  27  L.  ed.  1006;   Simmons  v. 
Saul,  138  U.  S.  439,  34  L.  ed.  1054; 
Farrell  v.  O'Brien,  199  U.  S.  89,  50 
L.  ed.  101;   Goodrich  v.  Ferris,  145 
Fed.  844.     Cf.  supra,  §  54;   nor  to 
cancel  a  will   itself.     Oakley  v.  Tay- 
lor.   64    Fed.   245:    on   account    of   a 
mistake,  undue  influence,  forgery  or 
other    fraud:    but    a    Federal    court 
may    entertain    a    bill    for    the   con- 


324 


JURISDICTION    IN    EQUITY. 


[§  79 


reached  by  an  execution  : 24  to  prevent  a  threatened  breach  of  a 


struction  of  a  will  duly  established. 
Wood  v.  Paine,  6G  Fed.  807. 

M  Angell  v.  Draper,  1  Vera.  399; 
Scottish    Am.   Mtg.    Co.   v.    Follans- 
bee,    14   Fed.   125.     By   a  judgment 
creditor  to  apply  to  the  satisfaction 
of   his  debt   any    interest  which   his 
debtor    may    hold    in    a    patent    or 
copyright,     Ager    v.    Murray,     105 
U.  S.  126,  26  L.  ed.  942.     See  Mart- 
land  v.  Gibson,  79  Fed.  136:  or  in  a 
license  to  use  a  patented  invention. 
Matthews    v.    Green,    19    Fed.    649. 
By    a    judgment   creditor    against    a 
city  for  an  accounting  of  taxes  col- 
lected by  it  which  had  been  pledged 
for    the    payment    of    complainant's 
demand.      City    of    New    Orleans    v. 
Fisher,  C.   C.  A.,  91  Fed.  574.     To 
enforce  a  decree  for  the  payment  of 
money,  at  least  when  made  by  an- 
other   court    of   equity.      Shields    v. 
Thomas.  18  How.  253,  262.  15  L.  ed. 
368,  372.    But  see  Tilford  v.  Oakley. 
Hempst.    197.     To   enforce  the   pay- 
ment of  alimony  directed  to  be  paid 
in  the  final  judgment  or  decree  of  a 
State   court.     Barber  v.  Barber.   21 
How.  582.  16  L.  ed.  226;   Knapp  v. 
Knapp,  59  Fed.  641;  Israel  v.  Israel, 
130  Fed.   237;    Johnson   v.  Johnson. 
13   Fed.    193;    Bowman  v.   Bowman, 
30  Fed.  849.     By  a  creditor,  whose 
claim  has  not  been  reduced  to  judg- 
ment, against  an  insolvent  corpora- 
tion   for   the    appointment    of    a    re- 
ceiver and  the  marshaling  and  dis- 
tribution   of    its    assets;    when    the 
corporation     waives     the     objection 
that  his  claim  has  not  been  reduced 
to  judgment.    Be  Metropolitan  Rail- 
way  Receivership,  208  V.  S.  90.  52 
L.    ed.    403:    Fink    v.    Patterson.   21 
Fed.   602.     Or  when  the   charter  of 
the  corporation  has  expired,  or  be- 
cause of  a  sheriff's  9ale  of  its  prop- 


erty and  franchises,  the  officers  last 
elected  have  become  trustees  to  dis- 
tribute    its    assets.      Am.    Ice    Co. 
v.  Pocono  Spring  Water  Ice  Co.,  165 
Fed.  714.     But  not  a  bill  filed  by  a 
creditor  for  himself  alone  to  apply 
equitable   assets   to   the   payment   of 
his   debt,   unless   he   has  obtained   a 
judgment   for  his  claim  in  a  court 
of   the   same    State   or    judicial    dis- 
trict, and  had  the  return  of  an  ex- 
ecution   issued    thereon    unsatisfied. 
Case   v.   Beauregard,   99  U.   S.   119, 
25    L.    ed.    370:    Smith    v.    Railroad 
Co..    99    U.    S.   398,   25    L.   ed.    437: 
Walser    v.    Seligman,    13    Fed.    415; 
Swan  L.  &  C.  Co.  v.  Frank,  148  U. 
S.    603,    37    L.    ed.   577;    Hollins   v. 
Brierfield.  C.  &  I.  Co.,  150  U.  S.  371, 
37   L.  ed.   1113;    Maxwell  v.  M'Dan- 
iels,    C.    C.    A.,    184    Fed.    311.      A 
judgment  debtor  in  a  foreign  juris- 
diction cannot  sue  to  recover  equit- 
able  assets   until    he    has    recovered 
a    judgment    in    the    district    where 
the     suit     is     brought.       Nat.     Tube 
Works  Co.  v.  Ballon.  146  U.  S.  517, 
13    Sup.    Ct.    165,    36    L.    ed.    1070. 
Not  even,  it  has  been  held,  when  it 
is  shown  that  the  debtor  is  insolvent 
and    has    no   property   which   can   be 
reached  by  a  legal   process,  Walser 
v.  Seligman,  13  Fed.  415;  Am.  Creo- 
sote  Works   v.   C.    Lembcke   &    Co., 
165   Fed.  809.     Unless  to  enforce  a 
trust    or    equitable    right;    Case    v. 
Beauregard,   101   U.  S.  688,  690,  25 
L.  ed.   1004:    -Merchants'  Nat.  Bank 
v.  Chattanooga  Constr.  Co..  53  Fed. 
314.     Nor,  in  the  absence  of  statu- 
tory   authority,    when    he    is    about 
to    make    a    fraudulent    transfer    of 
his  property.     Am.  Creosote  Works 
v.   C.  Lembcke  &   Co.,  165  Fed.  809. 
Whether    a    Federal    court    will    en- 
tertain    a     creditor's     bill    founded 


79] 


SURVEY   OF    EQUITABLE    JURISDICTION. 


325 


upon  the  judgment  of  a  State  court 
within  the  district  lias  been  doubted. 
Davis  v.  Davis.  65  Fed.  380.  But 
that  it  was  held  in  Bacon  v.  Har- 
ris, 62  Fed.  99;  Bidwell  v.  Huff. 
103  Fed.  362.  It  has  been  held: 
that  such  a  bill  may  be  maintained 
in  Virginia,  by  a  creditor  of  an  in- 
solvent firm  which  is  disposing  of 
its  assets  in  fraud  of  creditors,  filed 
on  behalf  of  the  other  creditors  as 
well  as  himself,  and  praying  the 
appointment  of  a  receiver,  an  in- 
junction against  any  interference 
by  others  with  the  firm  assets  and 
the  distribution  of  those  assets 
among  the  creditors  equally.  Fink 
v.  Patterson,  21  Fed.  602.  That  a 
judgment  creditor  of  a  national 
bank  cannot  sue  in  equity  to  compel 
the  receiver  of  the  bank  to  recognize 
his  judgment  and  to  enjoin  the  re- 
ceiver from  refusing  such  recogni- 
tion ;  because  he  has  an  adequate 
remedy  by  an  action  at  law  in  the 
Federal  court  against  the  receiver 
upon  the  judgment  of  the  State 
court  against  the  bank,  Denton  v. 
Baker,  79  Fed.  189.  And  it  was  said 
that  a  receiver,  assignee  in  bank- 
ruptcy, or  assignee  under  a  volun- 
tary general  assignment,  each  of 
whom  represents  creditors  as  well 
as  the  debtor,  cannot  maintain  a 
bill  to  enforce  a  collateral  obligation 
given  to  a  creditor  or  to  a  body  of 
creditors  by  a  third  person  for  the 
payment  of  the  debts  of  the  insolv- 
ent. Jacobson  v.  Allen,  12  Fed.  454. 
25  Robinson  v.  Lord  Byron,  1  Bro. 
C.  C.  588;  Osborn  v.  Bank  of  U.  S., 
9  Wheat.  738,  6  L.  ed.  204;  Vicks- 
burg  Water  Works  Co.  v.  Vicksburg, 
185  U.  S.  65,  82,  46  L.  ed.  808,  815. 
Bills  may  be  sustained;  to  enjoin 
the  head  of  a  department  of  the  na- 
tional government  from  acting  be- 
yond  the  scope  of  his   authority  to 


the  prejudice  of  the  complainant. 
Xoble  v.  Union  River  Logging  R. 
Co.,  147  U.  S.  165,  37  L.  ed.  123. 
See  infra,  §  100.  To  enjoin  a  State 
officer  from  revoking  a  permit  au- 
tborizing  a  foreign  corporation  to 
transact  business  within  the  State. 
Greenwich  Ins.  Co.  v.  Carroll,  125 
Fed.  121.  Infra,  §  105.  By  a  rail- 
road company,  to  enjoin  scalpers 
from  selling  non-transferrable  re- 
turn tickets,  already  issued  by  com- 
plainant, and  all  tickets  of  a  simi- 
lar nature  which  complainant  may 
issue  in  the  future.  Bitterman  v. 
Louisville  &  X.  R.  R.  Co.,  207  U.  S. 
205,  52  L.  ed.  171.  To  enjoin  a 
State  board  of  equalization  from 
certifying  to  the  different  counties 
an  assessment  of  a  railroad  for 
taxation  at  a  higher  percentage  of 
its  real  value  than  the  assessment 
of  other  property  by  the  county  offi- 
cers, although  the  board  has  as- 
sessed the  railroad  at  no  more  than 
its  value,  and  the  State  Constitu- 
tion ordains  that  all  property  be 
taxed  according  to  its  value;  when, 
if  the  complaint  were  remitted  to 
its  remedy  at  law.  a  cloud  would  be 
cast  upon  its  title  and  it  would  be 
obliged  to  bring  at  least  thirty-five 
suits  to  obtain  relief.  Taylor  v. 
Louisville  &  N.  R.  Co.,  C.  C.  A.,  88 
Fed.  350,  356,  358.  Gf.  Sanford  v. 
Poe,  C.  C.  A.,  69  Fed.  546.  60  L.R.A. 
641  ;  Ogden  City  v.  Armstrong,  168 
U.  S.  224,  42  L.  ed.  444.  See  §  25, 
supra.  To  restrain  public  officers 
from  making  an  assessment  against 
real  estate  for  a  betterment,  under 
a  statute  that  is  unconstitutional. 
Wilson  v.  Lambert,  168  U.  S.  611. 
42  L.  ed.  599.  To  enjoin  the  collec- 
tion of  taxes,  in  the  assessment  of 
which  the  State  authorities  have  de- 
nied the  complainant  the  equal  pro- 
tection of  the  laws  by  an  enormous 
disparity     and     discrimination     be- 


326 


JURISDICTION    IX    EQUITY 


[§   79 


tween  the  value  placed  upon  its  fran- 
chises and  other  property  and  that 
placed  upon  the  franchises  and  prop- 
erty held  by  other  corporations  of 
the  same  class;  and  if  plaintiff  sued 
to  recover  the  taxes,  after  they  had 
heen  paid,  he  would  be  obliged  to 
bring  separate  actions  against  three 
or  four  different  officers,  to  whom 
the  money  is  payable  after  its  collec- 
tion. In  this  case  part  of  the  money 
was  paid  to  the  State,  which  could 
not  be  sued,  and  there  was  no  stat- 
ute authorizing  a  repayment  by  the 
State  treasurer  in  case  the  taxpayer 
succeeded  in  an  action  against  the 
collector.  Raymond  v.  Chicago  Union 
Traction  Co.,  207  U.  S.  20,  30,  52 
L.  ed.  78,  88.  See  Atchison,  T.  &  S. 
F.  Ry.  Co.  v.  Sullivan.  C.  C.  A.,  173 
Fed.  456,  In  general,  to  enjoin  the 
collection  of  an  illegal  tax  when  its 
enforcement  would  lead  to  a  mul- 
tiplicity of  suits,  Union  Pac  Ry.  Co. 
v.  Cheyenne,  113  U.  S.  516,  28  L.  ed. 
1098;  Dundee  Mtg.  T.  Inv.  Co.  v. 
School  District,  19  Fed.  359;  Cum- 
mings  v.  National  Bank,  101  U.  S. 
153,  156,  25  L.  ed.  903,  904;  Taylor 
v.  Louisville  &  X.  R.  Co.,  C.  C.  A., 
88  Fed.  350,  357;  Sanford  v.  Poe, 
C.  C.  A.,  60  L.R.A.  641,  69  Fed.  546; 
or  produce  irreparable  injury,  Far- 
go v.  Hart,  193  U.  S.  490,  503,  48 
L.  ed.  761,  767;  Raymond  v.  Chicago 
Union  Traction  Co.,  207  U.  S.  20, 
52  L.  ed.  78;  Taylor  v.  Louisville  & 
N.  R.  Co.,  88  Fed.  350;  Hutchinson 
v.  Beckham,  C.  C.  A.,  118  Fed.  399. 
In  Shelton  v.  Piatt,  139  U.  S.  591, 
596,  597,  35  L.  ed.  273,  276,  277; 
where  the  only  jurisdictional  aver- 
ments were  "that  the  property  of 
the  United  State  Express  Company 
in  Tennessee  is  employed  in  inter- 
state commerce  in  the  said  express 
business,  and  necessary  to  the  con- 
duct of  it;  that  if  seized  by  the  said 
sheriff  it  will  greatly  embarrass  the 


company  in  the  conduct  of  such  bus- 
iness, and  subject  it  to  heavy  loss 
and  damage,  and  the  public  served 
by  it  to  great  loss  and  inconven- 
ience" and  "that  your  orator  and 
the  United  States  Express  Company 
are  without  adequate  remedy  at  law 
in  the  premises:"  it  was  held  that 
no  injunction  should  issue.  There, 
however,  the  State  law  authorized 
the  recovery  of  the  taxes  after  their 
payment  if  their  illegality  was  es- 
tablished. See  Allen  v.  Pullman's 
Palace  Car  Co.,  139  U.  S.  658,  35 
L.  ed.  303.  See  also  Keithsburg 
Bridge  Co.  v.  McKay,  42  Fed.  427; 
Pacific  Exp.  Co.  v.  Seibert,  44  Fed. 
310;  Hoey  v.  Coleman,  46  Fed.  221, 
223.  A  will  may  be  sustained  where 
the  levy  of  the  tax  would  throw 
a  cloud  upon  the  title  of  real 
estate,  in  which  complainant  has 
an  interest;  Sanford  v.  Gregg,  58 
Fed.  620;  Taylor  v.  Louisville  &  N. 
R.  Co.,  C.  C.  A.,  88  Fed.  350,  358; 
Kansas  City,  Ft.  S.  &  M.  R.  Co.  v. 
King,  C.  C.  A.,  120  Fed.  611;  in 
such  a  case,  there  must  be  a  spe- 
cific averment,  that  the  complain- 
ant owns,  or  holds  an  interest  in, 
real  estate,  Indiana  Mfg.  Co.  v. 
Koehne',  188  U.  S.  681;  Risley  v. 
City  of  Utica,  173  Fed.  502;  or 
when  its  assessment  was  made  by  a 
fraud,  of  which  equity  might  take 
cognizance,  First  Nat.  Bank  v. 
Douglass  County,  3  Dill.  298;  Union 
Pac.  R.  Co.  v.  McSliane.  3  Dill.  303. 
312;  Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
Sullivan,  C.  C.  A.,  173  Fed.  456,  but 
see  Nye,  Jenks  &  Co.  v.  Washburn, 
125  Fed.  817;  such  as  an  inten- 
tional and  systematic  undervalua- 
tion of  other  taxable  property,  At- 
chison,  T.  &  S.  F.  Ry.  Co.  v.  Sulli- 
van, C.  C.  A.,  173  Fed.  456;  or  by  a 
corporation,  which  is  directed  by 
statute  to  pay  the  tax  upon  the 
shares     of     its     stockholders,     Cum- 


•9] 


SURVEY   OF    EQUITABLE    JURISDICTION. 


127 


mings  v.  National  Bank.  101  U. 
S.  153,  157,  25  L.  ed.  903,  904; 
San  Francisco  Nat.  Bank  v.  Dodge, 
197  U.  S.  70,  75.  113,  49  L.  ed. 
669,  672,  688.  Charleston  Nat. 
Bank  v.  Melton,  171  Fed.  743.  Other- 
wise, a  bill  will  not  lie  to  restrain 
the  collection  of  taxes.  Hannewinkle 
v.  Georgetown,  15  Wall.  457,  21  L. 
ed.  231;  Dows  v.  Chicago,  11  Wall. 
108,  20  L.  ed.  65;  State  Railroad 
Tax  Cases,  92  U.  S.  575,  23  L.  ed. 
669;  Milwaukee  v.  Koeffler,  116  U. 
S.  219,  29  L.  ed.  612;  Pittsburg,  etc., 
Ry.  Co.  v.  Board  of  Public  Works, 
172  U.  S.  32.  43  L.  ed.  354:  Indiana 
Mfg.  Co.  v.  Koehne,  23  S.  Ct.  452, 
188  U.  S.  681,  47  L.  ed.  651  ;  except 
under  extraordinary  circumstances. 
It  has  been  said:  "It  is  real  and 
not  imaginary  suits,  it  is  probable 
and  not  possible  clanger  of  mul- 
tiplicity of  suits,  that  will  warrant 
the  assumption  of  jurisdiction  on 
that  ground.  While  it  is  true,  as 
the  plaintiff  contends,  that  the  State 
might  bring  a  separate  suit  for  each 
day's  penalty"  for  failure  to  pay  a 
tax,  "the  court  would  hardly  be  jus- 
tified in  acting  on  the  assumption 
that  it  would  do  so.  The  State  is 
not  to  be  looked  upon  in  the  light  of 
a  barrator,  and  the  court  will  not 
impute  to  it,  or  to  its  officers  acting 
in  its  name,  a  litigious  or  vindic- 
tive spirit,  or  a  purpose  needlessly 
to  vex  and  harass  the  citizen  with 
lawsuits.  Whatever  the  rule  may 
be  in  the  case  of  natural  persons, 
the  court  will  presume  that  a  State 
is  incapable  of  such  a  vulgar  passion 
and.  until  the  fact  is  shown  to  be 
otherwise,  will  act  on  the  assump- 
tion that  a  State  will  not  bring  any 
more  suits  than  are  fairly  necessary 
to  establish  and  maintain  its 
rights."  Caldwell.  J.,  in  Pacific 
Exp.  Co.  v.  Seibert.  44  Fed.  310, 
315.     Nor  a  bill   to  enjoin  the  col- 


lection of  an  internal  revenue  tax 
imposed  by  the  United  States  and 
illegally  assessed.  U.  S.  R.  S., 
§  3224:  Snyder  v.  Marks,  109  U.  S. 
189,  27  L.  ed.  901.  But  see  Pollock 
v.  Farmers'  L.  &  T.  Co.,  157  U.  S. 
429,  39  L.  ed.  759:  infra,  §§  105, 
284.  To  enjoin  a  city  from  enforc- 
ing an  unconstitutional  ordinance, 
reducing  the  charges  made  by  a  per- 
son acting  in  a  public  employment, 
such  as  a  street  railroad  company 
or  a  water  company;  Detroit  v.  De- 
troit Citizens'  St.  Ry.  Co.,  184  U.  S. 
368,  381.  46  L.  ed.  592.  605;  Vicks- 
burg  Water  Works  Co.  v.  Vicksburg, 
185  U.  S.  65,  82,  46  L.  ed.  808,  815; 
Cleveland  v.  Cleveland  City  Ry.  Co., 
194  U.  S.  517,  531,  48  L.  ed.  1102, 
1106;  Walla  Walla  v.  Walla  Walla 
Water  Co.,  172  U.  S.  1,  11.  43  L.  ed. 
341,  346;  Hutchinson  v.  Beckham, 
118  Fed.  399,  402;  Southwest  Mis- 
souri Light  Co.  v.  City  of  Joplin, 
101  Fed.  23,  33;  Iron  Mountain  R. 
Co.  v.  Memphis.  96  Fed.  113,  125; 
Cleveland  City  Ry.  Co.  v.  Cleve- 
land, 94  Fed.  385.  395;  Old  Colony 
Trust  Co.  v.  Atlanta,  83  Fed.  39, 
40,  aff'd,  C.  C.  A.,  88  Fed.  859;  In- 
dianapolis Gas  Co.  v.  Indianapolis, 
82  Fed.  245;  Wilkie  v.  City  of  Chi- 
cago, 188  111.  444,  446,  80  Am.  St. 
Rep.  182.  To  set  aside  and  to  de- 
clare null  and  void  a  municipal  or- 
dinance which  impairs  the  operation 
of  a  contract  with  the  complainants, 
when  the  invalidity  of  the  ordinance 
does  not  appear  upon  its  face,  but 
must  be  proved  by  evidence  aliunde. 
and  is  a  cloud  upon  the  title  of  the 
complainants  to  a  franchise.  Los 
Angeles  v.  Los  Angeles  C.  Water 
Co.,  177  U.  S.  558,  568,  580.  44 
L.  ed.  886,  890.  896.  The  danger 
of  a  municipality  of  criminal  pro 
ceedings,  combined  with  irrepara- 
ble injury  to  business,  may  sus- 
tain    jurisdiction     over     a     bill     to 


32S 


jurisdiction  in  equity. 


[i 


enjoin  the  enforcement  of  an  ordi- 
nance imposing  a  license  tax.  Hut- 
chinson v.  Beckham,  C.  C.  A.,  US 
Fed.  309;  or  a  penalty  for  an  act 
that  is  not  unlawful.  Borden's  Con- 
densed Milk  Co.  v.  Baker.  C.  C.  A., 
177  Fed.  906.  See  infra,  §271.  But 
not  ordinarily  to  enjoin  the  passage 
of  such  an  ordinance,  since  its  in- 
validity will  prevent  its  mere  pass- 
age, unaccompanied  by  an  attempt 
to  carry  the  same  into  execution, 
from  giving  to  the  complainant  a 
legal  grievance.  Murphy  v.  East 
Portland.  42  Fed.  308:  Mo.  &  Iv.  T. 
Ry.  Co.  v.  Olathe,  156  Fed.  624; 
New  Orleans  Water  Works  Co.  v. 
New  Orleans.  164  U.  S.  471.  41  L. 
ed.  518.  But  see  Los  Angeles  v. 
Los  Angeles  Water  Co.,  177  U.  S. 
558,  44  L.  ed.  86,  §  25,  supra; 
except  perhaps  when  the  ordinance 
would  impose  a  municipal  indebt- 
edness; Murphy  v.  East  Portland. 
42  Fed.  308;  or  impair  the  obli- 
gation of  a  contract.  Missouri  & 
K.  I.  Ry.  Co.  v.  Olathe,  156  Fed. 
624.  By  receivers  of  a  system  of 
street  railroads  to  establish  the 
validity,  and  to  obtain  a  decree  de- 
claring the  duration,  of  its  fran- 
chises, when  the  superintendent  of 
streets  has  notified  them  that  after 
;i  certain  date  all  promises  to  work 
and  make  repairs  upon  the  streets 
will  be  revoked;  and  the  city 
has  asserted  in  a  number  of 
other  ways  its  purpose  to  treat 
the  right  of  the  companies,  and 
whatever  franchises  they  have  had. 
as  terminated  at  that  date;  and 
has  declared  its  intention  to  resume 
possession  of  the  streets  and  to  re- 
sort to  all  legal  means  to  protect 
its  rights  against  what  are  deemed 
the  unfounded  claims  of  the  com- 
panies as  to  the  franchises,  so  that 
the  attitude  and  claims  of  the  city 
have  caused  a  cloud  upon  the  title  to 


the  property  in  the  hands  of  the  re- 
ceivers. Blair  v.  Chicago.  201  U.  S. 
400,  405.  449.  50  L.  ed.  801.  804, 
821.  By  a  corporation,  and  in  spe- 
cial cases  by  its  stockholders  and  by 
its  mortgagee,  to  enjoin  a  State 
railroad  commission  and  other  State 
officers  from  executing  an  order  un- 
authorized by  law  or  an  unconstitu- 
tional statute.  Smyth  v.  Ames.  169 
U.  S.  466,  42  L.  ed.  819;  Dinsmore 
v.  Southern  Exp.  Co.,  92  Fed.  714: 
Reagan  v.  Farmers'  L.  &  T.  Co..  154 
l.  S.  362,  38  L.  ed.  1014.  But  see 
§  25,  supra.  Under  extraordinary 
circumstances,  to  prevent  irrepara- 
ble injury  by  the  destruction  of  busi- 
ness or  a  multiplicity  of  suits,  a 
bill  in  equity  to  enjoin  criminal  pro- 
ceedings may  be  sustained.  Dobbins 
v.  Los  Angeles,  195  U.  S.  223,  49  L. 
ed.  169;  Ex  parte  Young.  March  23, 
1908,  209  U.  S.  123,  52  L.  ed.  714: 
Hunter  v.  Wood.  March  23,  1908, 
209  I".  S.  205.  52  L.  ed.  747:  infra, 
§  271.  But  see  Harkrader  v.  Wadley, 
172  U.  S.  148,  43  L.  ed.  399;  Fitts  v. 
McGhee,  172  I".  S.  516,  43  L.  ed.  535. 
A  bill  may  be  filed  for  an  injunc- 
tion against  irremediable  injury  to 
property  pending  an  action  of  eject- 
ment, although  filed  by  a  party  out 
of  possession.  Erhardt  v.  Boaro, 
113  U.  S.  537,  28  L.  ed.  1116.  Equi- 
ty will  not  entertain  a  bill  to  re- 
strain the  President  of  the  United 
States  from  carrying  into  effect  an 
unconstitutional  act  of  Congress,  in 
the  discharge  of  duties  ''purely  ex- 
ecutive and  political."  Mississippi 
v.  Johnson,  4  Wall.  475,  18  L.  ed. 
437.  Nor  a  bill  to  protect  rights 
which  are  purely  political,  even 
though  right  of  property  may  be 
thereby  incidentally  affected.  Geor- 
gia v.  Stanton.  6  Wall.  50,  18  L.  ed. 
721  :  Green  v.  Mills.  C.  C.  A.,  30 
L.R.A.  90.  69  Fed.  852;  Anthony  v. 
Burrow.    129    Fed.    783;    Dallas    v. 


§  7»] 


SURVEY   OF    EQUITABLE    JURISDICTION. 


329 


Dallas  Consul.  El.  St.  Ry.  Co.  (S. 
C.  Texas.  June  1912)  148  S.  W.  292. 
Cf.  Georgia  v.  Grant,  (1  Wall.  241, 
18  L.  ed.  848;  Clough  v.  Curtis,  134 
U.  S.  361,  33  L.  ed.  945.  But  see 
People  ex  rel.  Miller  v.  Tool  (Colo. 
Sup.  Ct.),  80  Pac.  224,  defended  by 
Henry  J.  Hersey  before  Colo.  Bar 
Ass'n  Sept.  27,  28,  1906.  criticized 
20  Harv.  L.  Rev.  157.  Such  are:  a 
bill  by  a  State  to  enjoin  interference 
with  its  government  by  the  Presi- 
dent; Mississippi  v.  Johnson.  4  Wall. 
475,  or  the  Secretary  of  War; 
Georgia  v.  Stanton,  6  Wall.  50,  18 
L.  ed.  721,  or  a  general  of  the  army; 
Georgia  v.  Grant,  6  Wall.  241,  18  L. 
ed.  848;  a  bill  by  a  citizen  of  a 
State  on  behalf  of  himself  and  oth- 
ers similarly  situated  to  enjoin  a 
State  officer  from  the  execution  of  a 
State  registration  law  which  he  al- 
leged denied  him  his  lights  under 
the  Fifteenth  Amendment,  Green  v. 
Mills,  C.  C.  A.,  30  L.R.A.  90,  69 
Fed.  852.  and  a  bill  to  enforce  a 
right  to  a  nomination  for  Congress. 
Anthony  v.  Burrow,  129  Fed.  783. 
But  a  taxpayer  who  was  threatened 
with  increased  taxation  was  given 
an  injunction  against  the  canvass  of 
the  returns  of  an  unauthorized  elec- 
tion for  the  incorporation  of  a  city. 
Smith  v.  Board  County  Com'rs 
Skagit  County,  45  Fed.  725.  Nor  a 
hill  to  enforce  an  "abstract  right" 
which  the  complainant  asserts,  and 
which  he  may  never  practically  exer- 
cise; as,  for  example,  the  right  to 
remove  an  obstruction  from  a  navi- 
gable river,  when  he  does  not  allege 
that  he  is  about  to  navigate  the 
same.  Spooner  v.  McConnell,  1  Mc- 
Lean, 337.  Nor  a  bill  by  the  United 
States  to  enjoin  a  corporation  from 
opening  an  exhibition  upon  Sunday, 
where  Congress  has  made  an  appro- 
priation toward  the  expense  of  the 
enterprise    upon    the    express   condi- 


tion that  it  shall  be  closed  on  the 
first  day  of  each  week.  World's  Co- 
lumbian Exposition  v.  I".  S..  56  Fed. 
054.  Nor  to  enjoin  an  action  at  law 
to  which  the  complainant  has  a 
clear  legal  defense.  Grand  Chute  v. 
Wfnegar,  15  Wall.  373,  21  L.  ed. 
174;  Francis  v.  Flinn.  118  U.  S. 
385;  Hapgood  v.  Hewitt.  119  U.  S. 
226,  30  L.  ed.  369.  See  Drexel  v. 
Berney,  122  V.  S.  241.  30  L.  ed. 
1219.  Nor  is  it  sufficient  ground 
for  the  interference  of  a  court  of 
equity  that  the  evidence  in  a  cause 
is  voluminous  and  tedious.  Bo  wen 
v.  Chase,  94  U.  S.  812,  824,  24  L.  ed. 
184,  187.  Xor  solely  because  dis- 
covery is  necessary,  although  the 
suit  is  brought  upon  a  contract 
which  provides  for  discovery.  India 
Rubber  Co.  v.  Consol.  Rubber  Tire 
Co.,  117  Fed.  354.  Nor,  it  has  been 
said,  upon  the  mere  allegation  of  in- 
solvency of  the  defendant.  Strang 
v.  Richmond.  P.  &  C.  R.  Co..  93  Fed. 
71.  74.  Xor  a  bill  by  a  coupon-hold- 
er, Avho  does  not  allege  that  he  is  a 
taxpayer,  to  enjoin  a  State  officer 
from  refusing  to  receive  his  coupons 
in  payment  of  taxes,  as  is  required 
by  a  contract  between  the  coupon- 
holder  and  the  State.  Marye  v. 
Parsons,  114  U.  S.  325,  29  L-.  ed. 
205.  See  Parsons  v.  Slaughter,  63 
Fed.  876.  Nor,  except  in  a  very  ex- 
traordinary case,  a  bill  to  enjoin 
slanders  or  libels.  Francis  v.  Flinn, 
118  U.  S.  385,  30  L.  ed.  165;  Balti- 
more Car  Wheel  Co.  v.  Bemis,  29 
Fed.  95.  Contra,  Emack  v.  Kane, 
34  Fed.  46;  Kotirgeres  v.  Murbarger, 
44  Fed.  292.  See  infra,  §  284.  For 
a  bill  to  enjoin  the  removal  of  an 
officer  of  the  United  States  or  of 
the  State,  or  a  municipality,  In  Re 
Sawyer.  124  U.  S.  200.  31  L.  ed. 
402;  White  v.  Berry,  171  U.  S.  366, 
376-378,  43   L.   ed.    199. 


330 


JURISDICTION    IN   EQUITY. 


•[§  TO 


right,,25  or  compel  the  performance  of  a  duty,26  the  commission 
or  omission  of  which,  respectively,  would  inflict  such  an  irrep- 
arable injurv  upon  a  person,  that  a  judgment  for  damages, 
or  the  cumbrous  legal  process  of  ejectment,27  replevin,28  detinue, 


26  Stribley  v.  Hawkie,  3  Atk.  275; 
Huguenin  v.  Baseley,  15  Ves.  180; 
Hunt  v.  Rousmanier's  Adm'rs,  1 
Pet.  1,  7  L.  ed.  27;  Willard  v.  Tay- 
loe,  8  Wall.  557,  19  L.  ed.  501.  But 
not  a  bill  to  compel  a  public  officer 
to  perform  a  ministerial  duty.  Craig 
v.  Leitensdorfer,  123  U.  S.  189,  31  L. 
ed.  114.  Nor  to  fix  the  freight  rates 
charged  by  railroads  in  intrastate 
commerce,  Montana,  W.  &  S.  R.  Co. 
v.  Morley,  198  Fed.  991.  Nor,  in  the 
absence  of  statutory  authority  for 
the  collection  of  taxes,  Preston  v. 
Chicago,  St.  L.  &  N.  O.  R.  Co.,  175 
Fed.  487,  aff'd  as  Preston  v.  Stur 
gis  Milling  Co.,  C.  C.  A.,  183  Fed 
1.  Nor  a  bill  to  compel  mu- 
nicipal, county  or  State  officers  to 
levy  a  tax;  Walkley  v.  Muscatine,  6 
Wall.  481,  18  L.  ed.  930,  to  issue 
bonds,  even  in  the  case  of  a  con- 
tract; Smith  v.  Bourbon  County, 
127  U.  S.  105,  32  L.  ed.  73;  or  sines 
the  remedy,  when  it  exists  at  all,  is 
by  mandamus.  Nor  a  bill  for  the 
appointment  of  a  receiver  to  levy 
taxes,  or  to  collect  taxes  previously 
levied,  Rees  v.  Watertown,  19  Wall. 
107,  22  L.  ed.  72;  Heine  v.  Levee 
Com'rs.  19  Wall.  655,  22  L.  ed.  223; 
Meriwether  v.  Garrett,  102  U.  S. 
472.  26  L.  ed.  197.  Nor  a  bill  to  en- 
join an  insolvent  municipality  from 
expending  its  funds  for  other  mu- 
nicipal purposes,  Thompson  v.  Allen 
County,  115  U.  S.  550,  29  L.  ed.  472, 
Safe  Deposit  &  T.  Co.  v.  City  of  An- 
niston,  96  Fed.  661,  663. 

27  A  landlord,  after  cancelling  a 
mining  lease,  may  file  a  bill  against 
his   lessee,   to  establish   his   right  to 


possession,  and  to  enjoin  the  latter 
from  committing  waste,  while  min- 
ing ore  upon  the  premises.  Big 
Six  Development  Co.  v.  Mitchell, 
C.  C.  A.,  1  L.R.A.(N.S.)  332. 
138  Fed.  279.  Independently  of 
statute,  it  was  held  that  a  Federal 
court  had  jurisdiction  of  a  bill  to 
quiet  title  by  a  complainant  out  of 
possession;  where  the  questions  in 
issue  included  the  establishment  of 
tlte  fact  of  an  administratorship  and 
the  interpretation  and  effect  of  an 
administrator's  deed,  under  which 
the  complainant  claimed.  Butter- 
field  v.  Miller,  C.  C.  A.,  195  Fed. 
200;  and  where  the  complainant 
alleged  title  to  a  tract  of  land  em- 
bracing 147,000  acres  against  a 
number  of  defendants,  each  of  whom 
claimed  title  to  a  separate  portion 
thereof  and  was  in  possession  of  the 
same.  Buchanan  Co.  v.  Adkins,  C. 
C.  A.,  1 75  Fed.  692.  But  see  infra, 
§  141.  But  not  solely  for  purposes 
that  could  be  accomplished  by  an  ac- 
tion in  ejectment,  Hipp  v.  Babin, 
19  How.  271,  15  L.  ed.  633;  Lewis  v. 
Cocks,  23  Wall.  466,  23  L.  ed.  70; 
Ellis  v.  Davis,  109  U.  S.  485,  27  L. 
ed.  1006;  Killian  v.  Efl&nghaus,  110 
U.  S.  568,  28  L.  ed.  246;  U.  S.  v. 
Wilson,  118  U.  S.  86,  30  L.  ed.  110; 
Speigle  v.  Meredith,  4  Bliss.  120. 
South  Penn.  Oil  Co.  v.  Miller,  C.  C. 
A.,  175  Fed.  729.  Nor  a  bill  for  a 
partition  filed  by  a  tenant  in  com- 
mon out  of  possession;  who  has  been 
disseised  by  his  co-tenant,  Frey  v. 
Willoughbv,  C.  C.  A.,  63  Fed.  865; 
nor  where  the  complainant's  title  is 
denied.  American  Ass'n  v.  Eastern 
Ky.    Land    Co.,    68    Fed.    721,    but 


§  79] 


SURVEY   OF    EQUITABLE    JURISDICTION. 


331 


or  account  rendered,29  would  be  no  adequate  remedy  for  the  loss 
thereby    occasioned;    to    prevent    a    needless    multiplicity    of 


see  Fuller  v.  Montague,  59  Fed.  212; 
except  when  the  complainant's  title 
is  not  recognized  at  common  law, 
Hopkins  v.  Grimshaw,  165  U.  S.  342, 
358;  nor  to  quiet  the  title  to  real 
estate  when  the  complainant's  rights 
are  purely  equitahle,  Frost  v.  Spit- 
ley,  121  U.  S.  552;  nor,  in  the  ab- 
sence of  a  State  statute  authorizing 
such  a  suit,  when  he  is  not  in  pos- 
session of  the  land,  U.  S.  v.  Wilson, 
118  U.  S.  86,  30  L.  ed.  110;  Frost  v. 
Spitley,  121  U.  S.  552,  30  L.  ed. 
1010;  §§  82,  83,  infra.  New  Jersey 
Land  &  Lumber  Co.  v.  Gardener 
Lacy  Lumber  Co.,  190  Fed.  861,'  but, 
in  such  a  case,  it  may  be  presumed 
that  the  possession  of  uninclosed 
woodland  follows  the  legal  title,  and 
in  such  a  case  equity  has  intervened, 
Graves  v.  Ashburn,  215  U.  S.  331, 
54  L.  ed.   217. 

28  Since  imported  goods  in  the 
custody  of  the  collector  cannot  be 
replevied,  U.  S.  R.  S.,  §  934.  a  bill 
in  equity  may  be  maintained  to  re- 
cover their  possession,  Pollard  v. 
U. 'anion,  65  Fed.  848.  But  not  usu- 
ally, to  restrain  the  seizure  or  to 
compel  the  return  of  personal  prop- 
erty, Knox  v.  Smith,  4  How.  298,  11 
L.  ed.  983;  Van  Norden  v.  Morton, 
99  U.  S.  378,  25  L.  ed.  453;  Jones  v. 
.MacKenzie,  C.  C.  A.,  122  Fed.  390; 
hut  see  Crane  v.  McCoy,  1  Bond, 
422;  unless  its  loss  by  the  owner 
would  result  in  irreparable  injury 
by  the  destruction  of  his  business 
and  commercial  credit,  Watson  v. 
Sutherland,  5  Wall.  74,  18  L.  ed. 
580;  North  v.  Peters,  138  U.  S.  271, 
34  L.  ed.  936;  or  by  rendering  it  im- 
possible for  him  to  manage  his  farm. 
Breeden  v.  Lee,  2  Hughes,  484;  or 
on     account     of     its     unique     value, 


Pusey  v.  Pusey,  1  Vein.  273 ;  Duke  of 
Somerset  v.  Cookson,  3  P.  Wms.  389. 
But  see  Lawrence  v.  Times  Printing 
Co'!,  90  Fed.  24.  or  if  it  be  held 
in  trust,  New  Orleans  v.  Morris,  105 
U.  S.  600,  26  L.  ed.  1184;  Keynes  v. 
Dumont,  130  U.  S.  354,  32  L.  ed. 
934.  That  the  value  of  the  property 
is  so  great  that  the  complainant  is 
unable  to  give  the  bond  required  in 
an  action  of  replevin  affords  no 
ground  for  the  interference  of  equi- 
ty. In  re  Oregon  Iron  Works,  4 
Saw.  169,  170;  s.  c,  17  N.  B.  R.  404. 
Nor  can  a  bill  be  sustained  which 
seeks  to  recover  damages  for  a  con- 
version, Dumont  v.  Fry,  12  Fed.  21, 
nor  to  collect  a  note  from  its  mak- 
er, Dowell  v.  Mitchell,  105  U.  S.  430, 
26  L.  ed.  1142,  or  an  indorsee, 
Shields  v.  Barrow,  17  How.  130,  15 
L.  ed.  158.  Nor  to  collect  the 
amount  of  an  insurance  policy, 
Graves  v.  Boston  Marine  Ins.  Co., 
2  Cranch,  419,  2  L.  ed.  324.  See 
Houston  Oil  Co.  of  Texas  v.  Drake, 
C.  C.  A.,  182  Fed.  208. 

29Gunn  v.  Brinckley  C.  W.  &  M. 
Co.,  66  Fed.  382.  Equity  will  enter- 
tain a  bill  to  compel  an  accounting 
by  persons  standing  in  a  trust  rela- 
tion to  the  plaintiff,  Pacific  R.  of 
Mo.  v.  Atlantic  &  Pac.  R.  Co.,  20 
Fed.  277;  Fowle  v.  Lawrason,  5  Pet. 
494,  502,  8  L.  ed.  204,  206;  Little- 
field  v.  Perry,  21  Wall.  205,  22 
L.  ed.  577;  Providence  Min.  & 
Mill  Co.  v.  Nocholson,  C.  C.  A., 
178  Fed.  29;  Morris  &  Co.  v.  Whit- 
ley, C.  C.  A..  183  Fed.  764.  and  by 
those  against  whom  an  action  for 
account  render  would  lie  at  common 
law.  Cited  with  approval  by  C.  C. 
A.  of  the  Fifth  Circuit.  Morris  &  Co. 


332 


JURISDICTION    LN    EQUITY. 


[§  79 


v.  Whitley,  C.  C.  A..  183  Fed.  764, 
765.    Mitchell  v.  Manufacturing  Co., 

2  Story,  648;  Linson  v.  Hutton,  08 
l.  S.  79,  25  L.  ed.  66;  Fowle  v. 
Lawrason,  5  Pet.  494,  502,  8  L.  ed. 
204,  206";  l'.  S.  v.  National  Bank,  73 
Fed.  379;  namely,  guardians  in  soc- 
age, bailiff's,  receivers,  and  mer- 
chants in  their  dealings  with  each 
other,  Bispham's  Equity,  §  481;  1 
Co.  Litt.  90  b;  1  Co.  Litt.  172  a; 
Bacon's  Abr.,  Account,  A.;  Buller's 
Xisi  Prius,  127;  Earl  of  Devon- 
shire's Case,  11  Coke,  89;  but  not 
otherwise,  Root  v.  Railway  Co.,  105 
U.  S.  189,  26  L.  ed.  975;  Consol. 
Safety  Valve  Co.  v.  Ashton  Valve 
Co.,  26  Fed.  319;  Lord  v.  White- 
head, etc.,  Mach.  Co.,  24  Fed.  801; 
Gunn  v.  Brinckley  Car  Works  & 
Mfg.  Co.,  66  Fed.  382,  unless  the  ac- 
counts are  mutual,  Fenno  v.  Prim- 
rose, 116  F'ed.  49;  Fechteler  et  al. 
v.  Palm  Bros.  &  Co.,  C.  C.  A.,  133 
I'ed.  462,  or  very  complicated  and 
intricate.  Cited  with  approval  by 
Judge  Hazel,  Harvey  v.  Sellers,  115 
Fed.  757,  758,  and  by  C.  C.  A.  of  the 
Fifth  Circuit.  Morris  &  Co.  v.  Whit- 
ley. C.  C.  A..  183  Fed.  764.  765.  Kil- 
bourn  v.  Sutherland,  130  U.  S.  505, 
32  L.  ed.  1005;  John  Crossley  Sons 
v.  New  Orleans.  20  Fed.  352;  Pa- 
cific R.  Co.  v.  Atlantic  &  Pac.  R. 
Co..  20  Fed.  277;  Gunn  v.  Brinck- 
ley C.  W.  &  Mfg.  Co.,  C.  C.  A..  66 
Fed.  382;  Baker  v.  Biddle  Bald. 
394;  Blakeley  v.  Briscoe,  Hempst. 
114;  Kilbourn  v.  Sunderland,  130  U. 
S.  505,  32  L.  ed.  1005.  But  see  Lord 
v.  Whitehead,  etc..  Mach.  Co.,  24 
Fed.  801;  Adams  v.  Bridgewater 
Iron  Co..  26  Fed.  324;  Hagenbeck 
v.  Hagenbeck  Zoo  A.  Co..  59  Fed. 
14.  U.  S.  v.  Harsha.  188  Fed.  759, 
where  it  was  held  that  equity  could 
take  jurisdiction  of  a  suii  by  the 
United  States  against  the  clerk  of  a 
court  for  an  accounting  of  transac- 


tions during  a  period  of  seven  years, 
or  the  accounting  is  supplemental 
to  some  other  equitable  relief.  Rub- 
ber Co.  v.  Goodyear,  9  Wall.  788; 
Root  v.  Railway  Co.,  105  U.  S.  ISO, 
26  L.  ed.  975.  A  bill  for  an  account- 
ing may  be  tiled,  under  a  contract 
between  two  large  mercantile  houses, 
requiring  each  to  render  to  the  oth- 
er, an  annual  account  of  its  entire 
business,  and  to  pay  a  certain  per- 
centage of  its  gross  profits.  Fech- 
teler v.  Palm  Bros.  &  Co.,  C.  C.  A., 
133  Fed.  462.  It  has  been  held: 
that  a  factor,  whose  dealings  with 
his  principal  were  numerous,  may 
file  a  bill  for  an  accounting,  Fenno 
v.  Primrose,  116  Fed.  49.  A  bill 
cannot  be  maintained,  to  compel  an 
account  of  profits  made  by  a  pur- 
chasing agent,  who,  it  is  charged, 
secretly  sofd  to  the  complainant, 
large  quantities  of  merchandise 
owned  by  himself  at  a  price  greatly 
in  advance  of  what  he  paid  for  the 
same;  although  the  agent  was  a  di- 
rector of  the  complainant  corpora- 
tion, and  the  suit  is  brought  against 
his  personal  representatives  after 
his  decease;  there  being  no  charge 
in  the  bill  that  the  agent's  books 
were  fraudulently  kept,  nor  that 
any  different  evidence  or  informa- 
tion could  be  obtainable  in  equity 
than  that  obtained  at  law;  there  be- 
ing, however,  an  allegation  that  the 
accounts  consisted  of  many  thous- 
ands of  items,  American  Spirits 
Mfg.  Co.  v.  Easton.  120  Fed.  440; 
where  demurrers  were  sustained 
to  both  the  original  bill,  filed 
against  the  agent  and  his  partner, 
and  an  amended  bill  after  the 
agent's  death,  filed  against  his  per- 
sonal representatives  and  his  part- 
ner, who  survived  him.  It  has  been 
said  that,  wherever  the  State  prac- 
tice authorizes  a  reference  of  a  com- 
plicated account  in  an  action  at  law, 


§ 


79] 


SURVEY   OF   EQUITABLE    JURISDICTION. 


333 


suits;3    and  to  compel  the  cancellation  or  execution  of  instru- 
ments,31 the  existence  or  want  of  which  is  a  cloud  upon,  or  an 


the  Federal  court  should  take  juris- 
diction of  the  ease  in  equity.  Mc- 
Mulle.n  Lumber  Co.  v.  Strother,  C. 
C.  A.,  136  Fed.  295.  For  patent 
cases,  see  infra,  §  146.  It  has  been 
held  that  there  is  jurisdiction  in 
equity  to  open  a  closed  account,  al- 
though there  is  a  remedy  at  law.  in 
a  case  where,  were  the  accounts  still 
open,  equity  might  have  entertained 
a  bill  for  an  accounting.  Bischoff- 
sheim  v.  Baltzer,  20  Fed.  800. 

30  Freeman  v.  Pontrell.  Chan. 
Cal.  XIII;  Earl  of  Bath  v.  Sherwin, 

4  Bro.  P.  C.  373:  Woods  v.  Monroe, 
17  Mich.  238;  Cumminga  v.  National 
Bank,  101  U.  S.  153,  25  L.  ed.  003; 
Dodge  v.  Briggs,  27  Fed.  161;  Hale 
v.  Allison,  188  U.  S.  56,  47  L.  ed. 
380:  Donovan  v.  Pennsylvania  Co., 
199  U.  S.  270,  50  L.  ed.  102. 

31  Pierce  v.  Webb  &  Stalker,  note 
to  Ryan  v.  Mackmath,  3  Bro.  C.  C. 
15;  Peake  v.  Highfield.  1  Russ.  559, 
and  cases  cited;  Bunce  v.  Gallagher, 

5  Blatchf.  C.  C.  481 ;  Quinby  v.  Con- 
sumers' Gas  Trust  Co.,  140  Fed.  362. 
To  set  aside  a  contract  obtained  by 
fraud,  Boyce  v.  Grundy,  3  Pet.  210, 
7  L.  ed.  655.  To  set  aside  a  con- 
veyance obtained  for  a  grossly  inad- 
equate consideration  from  a  man  in 
a  state  of  intoxication,  partly  caused 
by  the  acts  of  the  defendant.  Thack- 
rah  v.  Haas.  119  U.  S.  400.  30  L.  ed. 
486.  By  a  creditor  of  a  decedent  to 
set  aside  a  fraudulent  conveyance  of 
his  estate  made  after  his  death  by 
the  order  of  a  court,  Johnson  v.  Wa- 
ters. Ill  U.  S.  640,  28  L.  ed.  547. 
By  a  single  man  to  have  declared 
null  and  void  a  paper  purporting  to 
he  a  marriage  contract  executed  by 
him.  Sharon  v.  Hill.  20  Fed.  1.  To 
set  aside   an    invalid   tax   deed,  or  s 


deed  executed  under  a  decree  of  a 
court  which  had  no  jurisdiction  over 
the  matter;  when  the  invalidity  or 
want  of  jurisdiction  must  be  made 
to  appear  by  facts  not  apparent  up- 
on the  deed  itself,  Ritchie  v.  Savers, 
100  Fed.  520.  But  see  Little  Rock 
Junction  Co.  v.  Burke,  C.  C.  A.,  66 
Fed.  S3;  Morrison  v.  Marker,  93 
Fed.  692.  Bills  in  equity  may  be 
tiled  to  set  aside  a  land  patent,  is- 
sued in  violation  of  a  statute,  when 
the  bill  is  tiled  by  the  party  en- 
titled to  the  land.  Southern  Pac.  R. 
Co.  v.  Wiggs.  43  Fed.  333,  but  not,  it 
has  been  held,  to  decree  a  forfeiture 
of  a  land  grant,  and  to  recover  the 
land  so  granted  for  a  breach  of  a 
condition  subsequent,  in  the  absence 
of  a  declaration  of  forfeiture  by 
Congress  or  of  express  statutory  au- 
thority from  Congress  to  institute 
the  suit.  U.  S.  v.  Washington  Im- 
provement &  Development  Co.,  189 
Fed.  674.  Cf.  U.  S.  v.  Northern  Pac. 
R.  R.  Co..  177  U.  S.  435.  20  Sup. 
Ct.  706,  44  L.  ed.  836.  Contra,  U. 
S.  v.  Whitney.  176  Fed.  593;  For 
specific  performance,  Franklin  Tele- 
graph Co.  v.  Harrison.  145  U.  S. 
450.  12  Sup.  Ct.  Rep.  000.  36  L.  ed. 
776;  Western  Union  Tel.  Co.  v. 
Pittsburg.  ('.,  C.  &  St.  L.  Ry.  Co., 
137  Fed.  435.  To  procure  an  adju- 
dication that  a  land  patent,  which 
has  been  obtained  fro  mthe  United 
States  through  an  error  of  law  or 
a  gross  mistake  of  fact  or  fraud, 
belongs  to  the  original  owner  of  the 
equitable  title  of  the  land.  Howe  v. 
Parker.  C.  ('.  A..  100  Fed.  738;  but 
m>t  when  the  hill  is  tiled  by  one  who 
has  never  placed  himself  in  privity 
with  the  United  States  by  the  ac- 
ceptance  of  a   grant,   or   settlement 


334 


JURISDICTION    IN    EQUITY. 


[§  79 


apparent  flaw  in,  a  person's  title,  or  would  render  it  difficult  for 
him  to  resist  an  unjust  demand,  or  to  dispose  of  property  by 
sale.  It  has  been  said:  "To  give  a  court  of  equity  jurisdiction, 
the  nature  of  the  relief  asked  must  be  equitable,  even  when  the 
suit  is  based  on  an  equitable  title."  32  The  inadequacy  of  the 
remedy  at  law  which  will  justify  relief  in  equity  does  not  con- 
sist merely  in  its  failure  to  produce  the  relief  sought, — that 
is  a. not  unusual  result  of  all  remedies, — but  that  in  its  nature 
or'  character  it  is  not  fitted  or  adapted  to  the  end  in  view.33 
Where  a  bill  rightfully  invokes  the  equitable  jurisdiction  of  the 
court,  the  court  cannot  refuse  to  entertain  it  because  of  condi- 
tions that  came  into  existence  after  it  w7as  filed.34  He  who  seeks 
equity  must  come  with  clean  hands.35  This  doctrine  is  most 
frequently  enforced  in  trademark  cases  where  a  party  whose 
trademark  contains  a  fraudulent  representation  is  denied  re- 
lief.36 It  relates  to  the  subject-matter  of  the  suit  only, 
and    improper    conduct   by   the    complainant    in    matters    not 


and  improvement,  or  occupation,  en- 
try or  payment.  Campbell  v.  Wey- 
erhaeuser, C.  C.  A.,  161  Fed.  332. 
A  person  whose  application  to  pur- 
chase has  been  rejected  by  the 
Land  Department  cannot  bring  such 
a  suit.  Ibid.  "It  is  possible  that 
one  who  holds  land  under  grant 
from  the  United  States,  who  has 
done  everything  in  his  power  to  en- 
title him  to  a  patent  (which  he 
cannot  compel  the  United  States  to 
issue  to  him),  and  is  deemed  the 
legal  owner,  so  far  as  to  render  the 
land  taxable  to  him  by  the  State  in 
which  it  lies,  may  be  considered  as 
having  sufficient  title  to  sustain  a 
a  bill  in  equity  to  quiet  his  right 
and  possession."  Gray,  J.,  in  Frost 
v.  Spitley.  121  U.  S.  552,  556,  30 
L.  ed.  16 16:  citing  Carroll  v.  Saf- 
ford.  3  How.  441,  463,  11  L.  ed.  671  ; 
Van  Wyrk  v.  Knevals.  106  U.  S. 
360,  370,  27  L.  ed.  201 ;  Van  Brock- 
lin  v.  Tennessee.  117  U.  S.  151,  169, 
20  L.  ed.  845,  851. 

32  Fussell  v.  Gregg,  113  U.  S.  550, 


554,  28  L.  ed.  993,  994,  per  Woods, 
J. 

33  Miller,  J.,  in  Thompson  v.  Al- 
len County,  115  U.  S.  550.  554,  29 
L.  ed.  472^  473.  Cf.  Texas  &  P.  Ry. 
Co.  V.  Marshall,  136  U.  S.  303,  405, 
34  L.  ed.  385,  300. 

34  Carnegie  Steel  Co.  v.  Colorado 
Fuel  &  Iron  Co.,  165  Fed.  195. 

35  Primeau  v.  Granfield,  C.  C.  A., 
193  Fed.  911;  Mathews  v.  Wayne 
Junction  Tr.  Co.,  197  Fed.  237; 
Pickford  v.  Talbott,  225  U.  S.  651, 
56  L.  ed.  1240:  Dancigar  v.  Stone, 
187  Fed.  853.  It  is  no  defense  to  a 
contract  which  has  been  performed 
by  the  promisee,  that  the  promisor 
knew  that  the  performance  of  the 
agreement  might  aid  the  former  to 
violate  public  policy,  when  the  two 
parties  did  not  conspire  to  accom- 
plish that  result,  nor  share  in  the 
benefits  of  such  a  violation.  Me- 
chanics' Ins.  Co.  v.  Hoover  Distill- 
ing Co..  C.  C.  A..  31  L.Pv.A.(X.S.) 
873,  182  Fed.  590. 

36Ubeda    v.    Zialcita,    226    U.    & 


§    79J  SURVEY   OF   EQUITABLE    JURISDICTION.  335 

therewith  connected  will  not  bar  equitable  relief.37  Except  in 
an  extraordinary  case,  it  will  not  defeat  a  suit  to  enjoin  the  in- 
fringement of  a  patent  because  the  complainant  denies  the 
public  the  right  to  use  the  invention  which  it  protects,38  nor  be- 
cause he  uses  the  same  in  such  a  manner  as  to  restrain  trade  in 
interstate  commerce.39  It  has  been  held :  that  it  does  not  apply 
to  a  case  where,  subsequent  to  suit  brought,  the  complainant  has 
been  guilty  of  reprehensible  conduct,  which  does  not  affect  the 
cause  of  action,40  and  that  plaintiff  might  recover  at  common  law 
when  he  repudiated  a  contract  to  commit  a  fraud  upon  strangers 
and  sued  to  recover  the  money  he  had  paid  thereunder,  on  the 
ground  that  he  had  been  induced  to  enter  into  the  same  by  fraud, 
since  he  was  not  in  pari  delicto  with  the  defendant.41  The  doc- 
trine does  not  apply  to  a  defendant  who  does  not  seek  affirmative 
relief.42  "A  man  by  committing  a  fraud  does  not  become  an 
outlaw  and  caput  lupinum."*3  "He  may  have  no  standing  to 
rescind  his  transaction,  but  when  it  is  rescinded  by  one  who  has 
the  right  to  do  so  the  courts  will  endeavor  to  do  substantial  jus- 
tice so  far  as  is  consistent  with  adherence  to  law."44       The 

452,  57  L.  ed.  — .     The  doctrine  has  39  Henry   v.   A.   B.   Dick   Co.,   224 

not    been    extended    so    as    to    deny  U.  S.  1,  50  L.  ed.  045. 

the    right   to    sue    for    the    infringe-  40  Chute    v.    Wisconsin    Chemical 

ment  of  a  trademark  or  unfair  com-  Co.,  185  Fed.  115. 

petition,  by  imitation  thereof,  when  «  Stewart   v.    Wright,    C.    C.    A., 

the  trademark  is  a  label  which  con-  147  Fed.  321. 

tains  a   notice   of   a   copyright   that  «  Armour  &   Co.  v.  Renaker,   191 

does  not  exist.  Fed.  48. 

37  Camors-McConnell  v.  McCon-  «  Stoffela  v.  Nugent,  217  U.  S. 
nell,  140  Fed.  412;  holding  that  499,  501,  54  L.  ed.  850,  858,  per 
a   bill   to  enforce,   by   injunction,   a  Holmes,  J. 

contract    for    the    sale    of    property  4*  Ibid.      Where    municipal    bonds 

and    the    good    will    therewith    con-  have  been   issued  to  an  amount  be- 

nected,  should  not  be  dismissed  be-  yond     the     constitutional     limit,     a 

cause    the    purchaser    acquired    the  bondholder  may  sue  to  obtain  a  ju- 

property  for  the  purpose  of  obtain-  dicial     determination     as     to     what 

ing  a  monopoly  of  the  business  and  part,   if  any,   of   the   debt  thus  cre- 

in  pursuance  of  an  illegal  combina-  ated    can    be    enforced.      Everett    v. 

tion  in  restraint  of  trade.  Independent     School     District,     109 

38  Continental  Paper  Bag  Co.  v.  Fed.  097.  702;  Truman  v.  Inhabi- 
Eastern  Paper  Bag  Co.,  (  Paper  Bag  tants  of  Town  of  Harmony,  198 
Patent  Case)   2  Hi  l.  S.  405,  430,  52  Fed.   557. 

L.  ed.  1122,  1133. 


336 


JURISDICTION    IN    EQUITY. 


[§  80 


maxim  that  he  who  seeks  equity  must  do  equity  does  not  apply 
to  a  defendant.45 

§  80.  The  distinction  between  law  and  equity  in  the 
Federal  courts.  The  fact  that  those  who  framed  the  Consti- 
tution thought  it  necessary  to  mention  law  and  equity  separate- 
ly, when  blocking  out  the. jurisdiction  of  the  Federal  courts,  has 
caused  some  judges  to  think,  and  even  to  say  in  their  opinions, 
that  it  was  thereby  intended  that  these  branches  of  the  law 
should  always  be  kept  apart.1  The  better  opinion,  however, 
seems  to  be  that  this  distinction  between  law  and  equity  is  en- 
forced by  the  Constitution  only  to  the  extent  to  which  the 
Seventh  Amendment  forbids  any  infringement  of  the  right  of 
trial  by  jury,"  as  fixed  by  the  common  law.  TheEquity  Rules  of 
1912  provide:  "If  at  any  time  it  appear  that  a  suit  commenced 
in  equity  should  have  been  brought  as  an  action  on  the  law  side 
of  the  court,  it  shall  be  forthwith  transferred  to  the  law  side 
and  be  there  proceeded  with,  with  only  such  alteration  in  the 
pleadings  as  shall  be  essential."  3  "If  in  a  suit  in  equity  a  mat- 
ter ordinarily  determinable  at  law  arises,  such  matter  shall  be 
determined  in  that  suit  according  to  the  principles  applicable 
without  sending  the  case  or  question  to  the  law  side  of  the 
court."4  Previously,  it  had  been  held  that,  where,  in  a  suit 
for  a  partition,  the  defendant  denied  the  title  of  complainant 
and  pleaded  sole  seisin  in  himself,  an  issue  was  raised  triable 
only  at  law,  and  that  the  suit  in  equity  must  be  stayed  to  per- 
mit the  plaintiff  to  bring  an  action  at  law  for  that  purpose.5 

§  81.  General  rules  affecting  the  jurisdiction  in  equity 
of  the  Federal  courts.  The  jurisdiction  in  equity  of  the  Fed- 
eral courts  is,  subject  to  the  limitations  of  the  Constitution,  sub- 


45  Columbus  v.  Mercantile  Trust 
Co.,  2] 8  U.  S.  G45. 

§  80.  1  Parsons  v.  Bedford,  3 
Pet.  433,  7  L.  ed.  732;  Bennett  v. 
Butterworth,  11  How.  669,  674,  13 
L.  ed.  859,  861  ;  Hipp  v.  Babin,  19 
How.  271,  at  p.  277,  15  L.  ed.  633, 
634:  Feiin  v.  Holme,  21  How.  481, 
486;  Costs  in  Civil  Cases,  1  Blatchf. 
C.  C.  652.  654;  Butler  v.  Young.  1 
Flip.  276,  278;  Meade  v.  Beale, 
Taney,    339,    at    p.    361;    Thompson 


v.  Railroad  Cos.,  6  Wall.  134.  18 
L.  ed.  765;  Reubens  v.  Joel,  13  N. 
Y.  488,  p.  497.  A  similar  remark 
is  contained  in  the  message  of 
President  Taft  on  Dec  7th  1909. 

2  Mr.  Justice  Matthews  in  Root 
v.  Railway  Co..  105  U.  S.  .189,  206. 
26  L.  ed.  975.  981.  Cf.  Ex  parte 
Boyd,  105  U.  8.  647,  26  L.  ed.  1200. 

3Eq.  Rule  22. 

4  Eq.  Rule  23. 

5  Gilbert  v.  Hopkins,  171  Fed.  704. 


§  81] 


FEDERAL    EQt'TTABLE     JtTBTSDICTION. 


337 


stantially  the  same  as  that  of  the  English  Court  of  Chancery  in 
1787,  when  the  Federal  Constitution  was  adopted;1  though,  in 
the  absence  of  special  statutory  authority,  they  do  not  have 
those  extrajudicial  powers  which  were  exercised  over  the  per- 
sons  and  estates  of  infants,  idiots,  lunatics,  and  charities  by  the 
Lord  Chancellor,  as  the  representative  of  the  sovereign  and  by 
virtue  of  the  latter's  prerogative  as  parens  patriae?  ''The  rule 
being  that  this  equity  power  must  be  construed  according  to 
equity  jurisdiction  in  England  as  exercised  at  the  time  of  the 
adoption  of  the  Constitution  and  of  the  judiciary  act,  any  juris- 
diction exercised  by  that  court  in  its  earlier  history,  but  sub- 
sequently abandoned,  and  any  enlargement  of  its  jurisdiction 
by  statute  subsequent  to  1789  are  to  be  excluded."  3  The  dis- 
tinction between  law  and  equity  as  recognized  in  the  jurispru- 
dence of  England  is  to  be  observed  in  the  courts  of  the  United 
States,  in  administering  the  remedy  for  an  existing  right ;  it 
does  not  follow  that  every  right  given  by  the  English  law,  and 
which  at  the  time  the  Constitution  was  adopted  might  have 
been  enforced  in  the  Court  of  Chancery,  can  also  be  enforced 
in  a  court  of  the  United  States.  The  right  must  be  given  by 
the  law  of  the  State  or  of  the  United  States.4  The  Judicial 
Code  provides  that:  "Suits  in  equity  shall  not  be  sustained  in 


§  81.  1  Robinson  v.  Campbell,  3 
Wheat.  212,  at  p.  221,  4  L.  eel.  372, 
37.1;  Fenn  v.  Holme,  21  How.  481, 
at  p.  484,  1G  L.  ed.  198,  199;  Meade 
v.  Beale,  Taney.  339,  at  p.  3G1  ;  Gor- 
don v.  Hobart.  2  Sumn.  401.  at  p. 
41).-)-.  Fletcher  v.  Morey,  2  Story. 
555.  at  p.  5(17:  Root  v.  Railway  Co., 
105  U.  S.  180,  at  p.  207,  26  L.  ed. 
97o.   981. 

2  Fontain  v.  Ravenel,  17  How. 
309,  at  p.  391,  15  L.  ed.  80,  89: 
Loring  v.  Marsh,  2  Clifford.  469,  at 
p.  492:  In  re  Barry,  42  Fed.  113; 
In  re  Burrus,  Petitioner,  136  U.  S. 
586,  34  L.  ed.  500;  N.  Y.  Foundling 
Hospital  v.  Gatti,  203  U.  S.  429, 
439,  51  L.  ed.  254,  259.  As  to  their 
jurisdiction  to  inquire  into  the  cus- 
tody of  the  lunatic,  see  King  v.  Mc- 
Lean Asylum.  C.  C.  A.,  64  Fed.  325. 
Fed.  Prae.  Vol.  I.— 22. 


Hoadley  v.  Chase,  126  Fed.  818. 
But  see  the  Late  Corporation  of 
The  Church  of  Jesus  Christ  of  Lat- 
ter Day  Saints  v.  U.  S.,  136  U.  S. 
1,  51,  r.6,  34  L.  ed.  478,  493,  495; 
s.  c,  140  U.  S.  665.  35  L.  ed.  592. 

3  Alger  v.  Anderson.  92  Fed.  696; 
Fontain  v.  Ravenel.  17  How.  369, 
394,  395.  15  L.  ed.  80,  90,  91;  per 
Taney.  ('.  .1.  "The  grant  of  power 
cannot  be  enlarged  by  resorting  to  a 
jurisdiction  which  the  Court  of 
Chancery  in  England,  centuries  ago, 
may  have  claimed  as  a  part  of  its 
ordinary  judicial  power,  but  which 
bad  been  abandoned  and  repudiated 
as  untenable  on  that  ground,  by  the 
court  itself,  long  before  the  Consti- 
tui  ion  was  adopted." 

4  Taney.  ( .'.  .1.,  in  Meade  v.  Beale, 
339.    361. 


33$ 


JURISDICTION    IN   EQUITY. 


[§  31 


either  of  the  courts  of  the  United  States  in  any  ease  where  a 
plain,  adequate,  and  complete  remedy  may  be  had  at  law."5 
The  Supreme  Court  has  construed  a  previous  statute  in  the 
same  words  substantially  as  follows:  The  effect  of  this  pro- 
vision is  that  whenever  a  court  of  law  is  competent  to  take  cog- 
nizance of  a  right,  and  has  power  to  proceed  to  a  judgment 
which  affords  a  plain,  adequate,  and  complete  remedy,  without 
the  aid  of  a  court  of  equity,  the  plaintiff  must  proceed  at  law, 
because  the  defendant  has  a  constitutional  right  to  a  trial  by 
jury.6  "It  would  be  difficult,  and  perhaps  impossible,  to  state 
anv  general  rule  which  would  determine  in  all  cases,  what  should 
be  deemed  a  suit  in  equity  as  distinguished  from  an  action  at 
law,  for  particular  elements  may  enter  into  consideration  which 
would  take  the  matter  from  one  court  to  the  other ;  but  this  may 
be  said,  that,  where  an  action  is  simply  for  the  recovery  and 
possession  of  specific  real  or  personal  property,  or  for  the  re- 
covery of  a  money  judgment,  the  action  is  one  at  law.  An  action 
for  the  recovery  of  real  property,  including  damages  for  with- 
holding it,  has  always  been  of  that  class."  7  "Accordingly,  a 
suit  in  equity  to  enforce  a  legal  right  can  be  brought  only  when 
the  court  can  give  more  complete  and  effectual  relief  in  kind  or  in 
degree  on  the  equity  side  than  on  the  common-law  side ;  as,  for 
instance,  by  compelling  a  specific  performance,  or  the  removal 
of  a  cloud  on  the  title  to  real  estate;  or  preventing  an  injury 
for  which  damages  are  not  recoverable  at  law,  as  in  Watson  v. 
Sutherland,  5  Wall.  74;  or  where  an  agreement  procured  by 
fraud  is  of  a  continuing  nature,  and  its  rescission  will  .prevent 
a  muntiplieity  of  suits."8     "By  inadequacy  of  the  remedy  at 


s.Jud.  Code,  §  267,  36  St.  at  L. 
1087,   re-enacting  U.   S.   R.   S.,   723. 

6  Hipp  v.  Babln,  19  flow.  271,  15 
L.  ed.  633;  Insurance  Co.  v.  Bailey, 
13  Wall.  6]0,  621,  20  L.  ed.  501, 
503;  Grand  Chute  v.  Winegar,  15 
Wall.  373,  375,  21  L.  ed.  174.  175; 
Lewis  v.  Cooks,  23  Wall.  460.  470, 
23  L.  ed.  70,  71;  Root  v.  Railway 
Co..  105  U.  S.  189,  212,  26  1..  ed. 
075,  983;  Killian  v.  Ebbingliaus, 
110  U.  S.  508,  573.  28  L.  ed.  246: 
X.  Y.  Guaranty  Co.  v.  Memphis 
Water   Co.,    107    U.   S.   205,   214.   27 


L.  ed.  484,  487,  per  Bradley,  J.: 
"This  enactment  certainly  means 
something;  and  if  only  declaratory 
of  what  was  always  the  law,  it 
must,  at  least,  have  been  intended 
to  emphasize  the  rule,  and  to  im- 
press it  upon  the  attention  of  the 
courts." 

7  Whitehead  v.  Shattuck,  138  U. 
S.  146,  151,  34  L.  ed.  873,  874,  per 
Field,  J. 

SBuzard  v.  Houston.  119  U.  S. 
347,  351,  352,  30  L.  ed.  451,  452, 
453,  per  Gray,  J. 


§  81] 


FEDERAL    EQUITABLE    JURISDICTION. 


339 


law  is  here  meant,  not  that  it  fails  to  produce  the  money, — that 
is  a  very  usual  result  in  the  use  of  all  remedies, — but  that  in  its 
nature  or  character  it  is  not  fitted  or  adapted  to  the  end  in 
view.'' 9  "When  irreparable  injury  is  spoken  of,  it  is  not  meant 
that  the  injury  is  beyond  the  possibility  of  repair  or  beyond  the 
possibility  of  compensation  and  damages;  but  it  must  be  of 
such  constant  and  frequent  recurrence  that  no  fair  or  reason- 
able redress  can  be  had  therefor  in  a  court  of  law."  10  "If  the 
remedy  at  law  is  adequate  in  theory  it  deprives  equity  of  juris- 
diction, although  practically  it  may  be  inadequate  to  secure  the 
collection  of  the  claim  sued  on."  n  Equitable  jurisdiction  does 
not  accrue  to  the  Federal  court  because  it  is  thought  that  the  law 
as  administered  by  it  is  more  favorable  to  a  party  seeking  its 
aid  than  the  law  as  administered  by  the  courts  of  a  State  in 
which  he  has  been  sued.12  "There  may  consequently  be  cases 
over  which  the  English  courts  of  chancery  would  have  taken 
jurisdiction,  which  are  not  cognizable  by  the  Federal  courts 
when  sitting  at  equity."  13  The  facts  stated,  and  the  relief  sought 
in  a  first  pleading,  and  not  its  form  or  name,  determine  whether 
it  invokes  the  jurisdiction  and  commences  a  suit  at  law  or  in 
equity.14  Where  the  complainant  has  a  remedy  at  law  by  man- 
damus, the  fact  that  a  Federal  court  has  no  jurisdiction  to  grant 
the  mandamus  does  not  make  the  remedy  at  law  inadequate.15 
The  fact  that  a  judgment  can  only  be  enforced  by  application  to 
a  court  of  equity  does  not  take  the  case  from  the  common-law 
side  of  the  court.16    "The  adequate  remedy  at  law  which  is  the 


9  Thompson  v.  Allen  Co.,  115  U. 
S.  550,  554,  29  L.  ed.  472,  473,  per 
Miller,  J. 

10  Chicago  General  Ry.  Co.  v.  C, 
B.  &  Q.  R.  R.  Co.,  181  111.  605,  611  ; 
quoted  with  approval  in  Donovan 
v.  Pennsylvania  Co.,  199  U.  S.  279, 
305.  50  L.  ed.  192,  204. 

n  Safe  Deposit  &  T.  Co.  v.  City 
of  Anniston,  96  Fed.  661,  663,  per 
Shelby,  J. 

12  Cable  v.  Uniteed  States  Life 
Insurance  Co.,  191  U.  S.  288,  48  L. 
ed.  188. 

WRuzaid  v.  Houston,  119  U.  S. 
347,  352,  30  L.  ed.  451,  453. 


14  Armstrong  Cork  Co.  v.  Mer- 
chants' Refrigerating  Co.,  C.  C.  A., 
184  Fed.  199. 

15  Smith  v.  Bourbon  Co.,  127  U. 
S.  105.  32  L.  ed.  73.  Contra,  Pro- 
visional Municipality  of  Pensacola 
v.  Lehman,  57  Fed.  324,  331.  As  to 
the  rule  where  the  State  courts  give 
a  remedy  by  certiorari,  Ewing  v. 
City  of  St.  Louis,  5  Wall.  413,  18 
L.  ed.  657;  Taylor  v.  Louisville  & 
N.  R.  Co..  88  Fed.  350,  359. 

16  Thompson  v.  Northern  Pac.  Ry. 
Co.,  93  Fed.  384. 


340 


JURISDICTION    IN    EQUITY. 


[§  81 


test  of  equitable  jurisdiction  in  these  courts,  is  that  which  exist- 
ed when  the  Judiciary  Act  of  1789  was  adopted,  unless  subse- 
quently changed  by  Congress,"17  A  State  statute  giving  an 
adequate  relief  at  law  does  not  affect  the  equitable  jurisdiction 
of  a  Federal  court.18  Whether  the  equitable  jurisdiction  is  lost 
when  a  statute  of  the  United  States  gives  the  same  or  adequate 
relief  at  law, — as,  for  example,  in  the  ease  of  discovery, — has 
not  yet  been  settled.19  If  a  statute  of  the  United  States  creates 
a  new  right,  the  remedy  will  be  in  equity  if  the  relief  thereby 
afforded  is  in  analogy  with  a  species  of  relief  ordinarily  given 
by  equity  alone.20  Thus,  it  has  been  held  that  a  suit  to  enforce 
the  individual  liability  of  stockholders  or  directors  to  creditors 
of  a  corporation,21  or  to  determine  the  question  of  the  right  of 
possession  to  land  under  section  2326  of  the  Revised  Statutes 
when  there  are  conflicting  claims  to  patents  before  a  land  of- 


WMcConihay  v.  Wright,  121  U. 
S.  201,  206,  30  L.  ed.  932,  933,  per 
Matthews,  J. 

18  Missouri,  K.  &  T.  Ry.  Co.  v. 
Elliott,  5G  Fed.  772:  Mississippi 
Mills  v.  Cohn,  150  U.  S.  202,  37 
L.  ed.  10.52:  Sheffield  Furnace  Co. 
v.  Witherow,  119  TJ.  S.  574,  37  L. 
ed.  853;  Smyth  v.  Ames,  109  U.  S. 
466,  42  L.  ed.  819;  Lindsay  v.  First 
Nat.  Bank,  156  U.  S.  485,  39  L.  ed. 
505;  Travelers'  Protective  Ass'n  v. 
Gilbert,  C.  C.  A.,  55  L.R.A.  538.  Ill 
Fed.  269.  Borden's  Condensed  Milk 
Co.  v.  Baker,  C.  C.  A.,  177  Fed.  906, 
where  the  State  statute  gave  relief 
in  certiorari;  Western  Union  Tel. 
Co.  v.  Trapp,  C.  C.  A.,  186  Fed.  114, 
a  suit  to  enjoin  the  collection  of 
taxes. 

19  Compare  Vaughan  v.  Central 
Pac.  R.  Co..  4  Sawy.  280;  Pratt  v. 
Northam,  5  Mason,  95;  Peters  v. 
Prevost,  1  Paine,  64;  Home  Ins.  Co. 
v.  Stanchfleld,  1  Dill.  424:  Markov 
v.  Mut.  Ben.  Life  Ins.  Co..  6  lus. 
L.  J.  537:  Heath  v.  Erie  R.  Co..  9 
Blatchf.  3K3;  Drexel  v.  Berney,  14 
Fed.  268;    Post  v.  Toledo.  C.  etc.  R. 


Co.,  144  Mass.  341,  59  Am.  Rep.  86, 
4  New  Eng.  R.  221. 

20  Edgell  v.  Haywood,  3  Atk.  354; 
Hornor  v.  Henning,  93  U.  S.  228, 
23  L.  ed.  879;  Terry  v.  Little,  101 
U.  S.  216,  25  L.  ed.  864;  Manu- 
facturing Co.  v.  Bradley,  105  U.  S. 
175,  26  L.  ed.  1034;  Doe  v.  Water- 
loo Min.  Co.,  43  Fed.  219. 

21  Hornor  v.  Henning.  93  U.  S. 
228.  23  L.  ed.  879:  Terry  v.  Little, 
101  l".  S.  216,  25  L.  ed.  864;  Manu- 
facturing Co.  v.  Bradley.  105  U.  S. 
175.  26  L.  ed.  1034;  Stone  v.  Chis- 
olm,  113  U.  S.  302,  28  L.  ed.  991; 
Goss  v.  Carter,  C.  C.  A..  156  Fed. 
746.  But  see  as  to  the  Maine  stat- 
ute, Alderson  v.  Dole,  C.  C.  A.,  74 
Fed.  29.  Under  Kansas  Gen.  Stat., 
ch.  23,  the  creditor  may  proceed  at 
law  or  in  equity.  X.  Y.  Life  Ins. 
Co.  v.  Beard,  80  Fed.  66.  As  to 
proceedings  under  the  Texas  statute, 
see  Thomson-Houston  El.  Ry.  Co.  v. 
Dallas  Con.  Tr.  Ry.  Co.,  54  Fed. 
1001.  See  notes  to  Rickerson  Roller 
Mill  Co.  v.  Farrell  Foundry  &  M. 
Co.,  75  Fed.  554,  23  C.  < '.  A.,  302; 
Scott  v.  Latimer,  33  C.  C.  A.   1. 


§    81]  FEDERAL    EQUITABLE     JURISDICTION.  341 

fice,22  must  be  brought  in  equity.  A  suit  by  the  receiver  of  a 
national  banking  association,  to  recover  dividends  paid  to  stock- 
holders when  the  corporation  was  insolvent,  may  be  brought  in 
equity.23  It  has  been  held  :  that  suits  by  a  trustee  in  bankruptcy, 
to  recover  money  paid  as  a  preference,  should  be  brought  in 
equity,24  that  a  suit  to  foreclose  a  mechanic's  lien  must  be 
brought  in  equity.28  The  proceeding  under  the  act  of  Congress 
to  prevent  the  unlawful  occupancy  of  public  lands26  is  a  sum- 
mary proceeding  in  the  nature  of  a  suit  in  equity  and  may  be 
tried  without  a  jury.27  In  the  absence  of  express  provisions  to 
that  effect,  it  was  held  that  a  statute  directing  the  Attorney- 
General  to  take  "proper  proceedings  to  prevent  any  unlawful 
interference  with  the  rights  and  equities  of  the  United  States 
under  this  act,"  and  other  acts  of  Congress,  "and  to  have  legally 
ascertained  and  firmly  adjudicated  all  alleged  rights"  of  per- 
sons claiming  any  control  or  interest  in  the  property  of  a  cor- 
poration and  to  have  annulled  all  contracts  beyond  the  corporate 
powers;  did  not  authorize  the  joinder  of  applications  for  com- 
mon-law and  chancery  writs  in  the  same  suit,28 

A  suit  under  section  5239  of  the  Revised  Statutes  to  recover 
of  a  director  of  a  national  bank  the  damages  sustained  in  con- 
sequence of  excessive  loans  should  be  brought  on  the  common- 
law  side  of  the  court.29  It  has  been  held :  that  a  suit  to  collect 
the  double  liability  imposed  by  the  Constitution  and  statutes 
of  Kansas,  upon  the  stockholders  of  certain  corporations,  is 
contractual  in  its  nature  and  runs  to  the  creditors  individually, 
not  to  the  corporations ;  and  that  it  can  only  be  enforced  in  an 
action  at  common  law,  even  when  the  petition  charges  that  the 

22  Doe   v.   Waterloo   Min.   Co.,   43  State  statute  gave  a  right  of  action 

Fed.  219.  at    law.      Healey   Ice    Mach.    Co.   v. 

23Hayden   v.   Thompson,   71    Fed.  Green.  181   Fed.  890. 

00.  26  23  St.  at  L.  321. 

24  Parker  v.  Black.  C.  C.  A.,  151  27  Cameren  v.  U.  S.,  148  U.  S. 
Fed.  18.     But  see  §  644,  infra.  301,   304,   37   L.  ed.   459,  460;    Duf- 

25  Armstrong  Cork  Co.  v.  Mer-  field  v.  San  Francisco  Chemical  Co., 
chants'  Refrigerating  Co.,  C.  C.   A.,  198  Fed.  942. 

184   Fed.    199:    Pioneer    Min.   Co.   v.  28  Union  Pac.  Ry.  Co.  v.  U.  S.,  59 

Delamotte.   C.   C.    A.,   185   Fed.   752.  Fed.  813. 

So  held  where  there  were  conflicting  29  Stephens   v.   Overstolz,   43   Fed. 

liens   to   be   adjusted,   although   the  771. 


342 


JURISDICTION    IN    EQUITY. 


[§  82 


defendant  and  other  stockholders  have  made  a  colorable  and 
fraudulent  transfer  of  their  stock  to  another  corporation  for 
the  purpose  of  escaping  such  liability.30  A  suit  by  the  receiver 
of  a  New  Jersey  corporation,31  or  of  a  Nebraska  bank,32  to  col- 
lect an  assessment  upon  its  stockholders  may  be  brought  in 
equity* 

§  82.  State  laws  creating  new  rights  are  enforced  by 
Federal  courts  at  law  or  equity.  If.  however,  the  custo- 

mary1 or  statute2  law  of  a  State  has  created  a  new  right,  the 
Federal  courts  will  enforce  the  same  at  law  or  equity,  if  it  falls 
within  the  remedies  authorized  by  either  branch  of  their  juris- 
diction. Such  are  statutes  giving  a  mortgagor  or  his  judgment 
creditors  a  certain  time  within  which  to  redeem  land  after  a 
foreclosure  sale ; 3  authorizing  a  suit  to  set  aside  the  probate  of 
a  will,  or  a  will  itself,  for  fraud.*  even  though  the  statute  pro- 
vides that  the  suit  shall  be  brought  in  a  specified  State  court, 
and  that  an  issue  of  fact  therein  shall  be  tried  by  a  jury;  since 
the  Federal  court  of  equity  can  empanel  a  jury  for  that  pur- 
pose.6   But  this  cannot  be  done  unless  the  proceeding  is  an  ac- 


30Anglo-Ani.  Land  M.  &  A.  Co.  v. 
Lombard,  132  Fed.  721. 

31  Brown  v.  Allebaeh,  156  Fed. 
097. 

§  82.  1  Neves  v.  Seott,  13  How. 
268,  271,  14  L.  ed.  140,  142;  Gaines 
v.  Fnentes,  92  U.  S.  10,  20,  23  L. 
ed.  524.  528;  Ellis  v.  Davis,  109  U. 
S.  4S5.  27  L.  ed.  1006;  Lorman  v. 
Clarke.  2  McLean,  568,  577;  Nichols 
v.  Eaton.  91  U.  S.  716,  729,  23  L. 
ed.  254,  258:  Fisher  v.  Shropshire, 
147  1".  S.  133,  37  L.  ed.  109;  St. 
Louis  &  S.  F.  R.  v.  S.  W.  Tel.  & 
T.  Co..  C.  C.  A..  121   F.  276. 

2  Clark  v.  Smith,  13  Pet.  195,  10 
L.  ed.  123;  Fitch  v.  Creighton,  24 
How.  (U.  S*.)  159,  16  L.  ed.  596; 
Brine  v.  Insurance  Co..  96  U.  S.  627, 
24  L.  ed.  858:  Mills  v.  Scott.  99  C. 
S.  25,  25  L.  ed.  315;  Van  Xorden 
v.  Morton.  99  U.  S.  378,  25  L.  ed. 
315:  Cummings  v.  National  Bank, 
101  U.  S.  153,  157.  25  L.  ed.  903, 
904:    Holland  v.  Challen,  110  U.  S. 


15,  28  L.  ed.  52;  Reynolds  v.  Craw- 
fordsville  First  Nat.  Bank,  112  U. 
S.  405.  28  L.  ed.  733. 

3  Brine  v.  Insurance  Co.,  96  U.  S. 
627,  24  L.  ed.  858;  Orvis  v.  Powell, 
98  U.  S.  176,  178,  25  L.  ed.  238, 
239;  Connecticut  Mut.  L.  Ins.  Co. 
v.  Cushman,  108  U.  S.  51,  27  L.  ed. 
648. 

4Broderick's  Will,  21  Wall.  503, 
519,  520,  22  L.  ed.  599,  605,  606; 
Sawyer  v.  White,  C.  C.  A.,  122  Fed. 
223  (Missouri  Statute);  Richard- 
son v.  Green,  C.  C.  A.,  61  Fed.  423; 
s.  c,  159  U.  S.  264,  40  L.  ed.  142 
(Oregon  Statute)  ;  Williams  v. 
Crabb,  C.  C.  A.,  59  L.R.A.  425,  117 
Fed.  193,  204  (Illinois  Statute); 
Wart  v.  Wart,  117  Fed.  766  (Iowa 
Statute).     See  §  54.  supra. 

5  Williams  v.  Crabb,  C.  C.  A.,  117 
Fed.  193.  204,  59  L.R.A.  425;  Wart 
v.  Wart.  117  Fed.  766.  See  Chica- 
go, B.  &  Q.  R.  Co.  v.  Oglesby,  198 
Fed.   153.     But. in  Sexton  Mfg.  Co. 


§  82] 


STATE    STATUTES    CREATING    RIGHTS. 


343 


tion  or  suit  inter  partes,  which  relates  to  independent  contro- 
versies, and  not  merely  to  those  controversies  which  may  arise 
upon  an  application  for  probate,  or  upon  disputes  concerning 
the  setting  aside  of  a  probate  of  a  will,  when  the  remedy  afford- 
ed by  the  court  is  a  mere  continuation  of  the  probate  proceed- 
ing, merely  a  method  of  procedure  ancillary  to  the  original 
probate  allowed  by  the  State  court,  for  the  purpose  of  giving 
to  the  probate  its  ultimate  and  final  effect.6  A  Federal  court 
of  equity  will  follow  a  State  statute  authorizing  a  person  in 
possession  of  land  and  unmolested ; 7  or  even  one  out  of  posses- 
sion of  vacant  land,8  to  maintain  a  bill  to  determine  in  equity 
the  title  to  the  same  or  to  recover  possession  thereof;  but  not 
a  State  statute  authorizing  one  out  of  the  possession  of  land 
without  a  trial  by  jury  to  obtain  possession  of  the  same  when 
occupied  by  an  adverse  claimant.9    It  will  follow  a  State  statute 


v.  Singer  Sewing  Mach.  Co.,  C.  C. 
A.,  194  Fed.  50;  held  that  the  sec- 
tion of  the  Mechanic's  Lien  Law  of 
Illinois,  which  provided  that  the 
lien  shall  not  be  enforced  to  the 
prejudice  of  any  other  creditor,  en- 
cumbrancer or  purchaser,  unless  the 
contractor  within  four  months  after 
completion  "shall  either  bring  suit 
to  enforce  his  lien  therefor  or  shall 
file  with  the  clerk  of  the  circuit 
court  in  the  county  in  which  the 
building,"  &c,  is  situated,  a  claim 
of  lien  (111.  L.  1903,  p.  230;  111. 
R.  S.  3905,  Hurd,  p.  1319).  was 
not  complied  with  by  bringing  a 
suit  in  the  Federal  court  within  the 
prescribed  time,  when  no  notice  was 
filed  in  the  office  of  the  clerk  of 
the  State  Circuit  Court. 

6  Farrell  v.  O'Brien..  199  U.  S.  89, 
50  L.  ed.  101.  See  §  54,  supra. 
But  see  Preston  v.  Chicago,  St.  L. 
&  N.  O.  R.  Co.,  175  Fed.  487. 

7  Clark  v.  Smith,  13  Peters,  195, 
10  L.  ed.  123;  U.  S.  Min.  Co.  v. 
Lawson,  C.  C.  A.,  134  Fed.  769; 
North  Carolina  Mining  Co.  v.  West- 
feldt,  151   Fed.  290;  Kraus  v.  Cong- 


don,  C.  C.  A.,  1G1  Fed.  18.  Contra, 
Am.  Ass'n  v.  Williams.  C.  C.  A.,  166 
Fed.  17.  See  Woods  v.  Woods,  184 
Fed.  159.  A  state  statute  giving  a 
tenant  under  a  lease  for  more  than 
10  years  the  right  to  maintain  an 
action  in  his  own  name  to  remove 
a  cloud  upon  title  will  be  given 
effect  by  a  federal  court,  and  un- 
der such  statute  the  lessor  is  not 
an  indispensable  party  to  a  suit  by 
a  lessee  for  ninety-nine  years,  obli- 
gated by  the  terms  of  the  lease  to 
pay  all  taxes  and  assessments 
against  the  property,  to  set  aside 
an  assessment  for  local  improve- 
ments on  the  ground  of  its  invalid- 
ity. New  York,  N.  H.  &  H.  R.  Co. 
v.  City  of  New  York,  145  Fed.  661. 

8  Holland  v.  Challen,  110  U.  S.  15. 
28  L.  ed.  52;  Southern  Pac.  R.  Co. 
v.  Stanley,  49  Fed.  203;  Field  v. 
Barber  Asphalt  Co.,  117  Fed.  925: 
Smith  Oyster  Co.  v.  Darbee  &  Im- 
mel  Oyster  &  Land  Co.,  149  Fed. 
555. 

9  Whitehead  v.  Shattuck.  138  U. 
S.  140.  34  L.  ed.  S73;  Wehrman  v. 
Conklin.   155   U.  S.   314.   325,   39    L. 


344 


JURISDICTION    IN    EQUITY. 


[§  82 


imposing  on  stockholders  individual  liability  to  the  creditors 
of  their  corporations ; 10  making  an  assessment  for  opening 
streets  a  lien  upon  abutting  lands,  which  can  be  foreclosed  by 
the  city  or  its  assignee;11  authorizing  the  appointment  of  a  re- 
ceiver under  certain  conditions,  which  in  the  Federal  courts 
must  then  also  be  performed;12  authorizing  any  creditor  or 
stockholder  to  sue  to  wind  up  the  affairs  of  a  corporation  which 
has  become  insolvent  or  suspended  its  ordinary  business  for 
want  of  funds,12  but  not  a  State  statute  authorizing  a  court  of 
equity  to  dissolve  a  corporation;14  authorizing  a  bill  for  a  par- 
tition of  an  equitable  claim  to  land  the  legal  title  to  which  is 
in  the  United  States; 15  authorizing  an  injunction  to  be  granted 
in  a  new  class  of  cases,16  where  there  is  no  dispute  as  to  the  legal 
title  of  the  complainant,  as  in  a  taxpayer's  suit  to  restrain  the 
waste  of  municipal  property.17  But,  it  has  been  held,  that^  a 
Federal  court  of  equity  cannot  follow  a  State  statute  authoriz- 
ing an  injunction  against  the  collection  of  a  tax,  in  a  case  where 
equity,  independently  of  statutory  authority,  would  have  no 
such  jurisdiction.18     Federal  courts  of  equity  have  followed 


ed.  167,  173;  Giberson  v.  Cook,  124 
Fed.  98G ;  Union  Pac.  R.  Co.  v.  Cun- 
ningham, 173  Fed.  90;  Baum  v. 
Long-well,  200  Fed.  4.~>0.  See  Klenk 
v.Byme,  143  Fed.  1008;  Contra  Farr 
v.  Hobe-Peters  Land  Co.,  C.  C.  A., 
188  Fed.  10.  It  has  been  held  that 
the  bill  is  demurrable  when  it  fails 
to  allege  affirmatively  either  that 
the  plaintiff  is  in  possession,  or 
that  both  complainant  and  defend- 
ant are  out  of  possession.  So.  Pac. 
R.  Co.  v.  Goodrich,  57  Fed.  879. 
X0  Borland  v.  Haven,  37  Fed.  394. 
ll  Fitch    v.    Creighton,    24    How. 

(U.  S.)    159,  16  L.  ed.  596. 
WMcGraw  v.  Mott,  C.  C.  A.,  179 

Fed.  646.     ( §  65  of  X.  J.  Corp.  Act, 

X.  J.  P.  L.  1896,  p.  298). 

13  Flash     v.     Wilkerson,    22     Fed. 

689;    Fechheimer  v.  Baum,  2  L.R.A. 

153,  37   Fed.   167;   T.  &   W.  M.  Co. 

V.    Shatto,   34    Fed.   380;    Conklin   v. 

I  .    S.   Shipbuilding  Ass'n.   123   Fed. 

913;    s.  c.   ('.   C.   A..   126  Fed.  132; 


Land  Title  &  Tr.  Co.  v.  Asphalt  Co., 
C.  C.  A.,  127  Fed.  1.  But  see  Scott 
v.  Neely,  140  U.  S.  106,  35  L.  ed. 
358. 

14  Conklin  v.  U.  S.  Shipbuilding 
Co.,  140  Fed.  219.  Co»tra.  Jacobs 
v.  Mexican  Sugar  Co.,  130  Fed.  589. 

15  Aspen  Mining  &  Smelting  Co. 
v.  Rucker,  28  Fed.  220. 

16  Cummings  v.  National  Bank, 
101  U.  S.  153,  157,  25  L.  ed.  903, 
904;  Lanier  v.  Alison,  31  Fed.  100; 
Grether  v.  Wright,  C.  C.  A.,  75  Fed. 
742;  Weidenfeld  v.  Sugar  Run  R. 
Co.,  48  Fed.  615,  619;  St.  Louis  & 
S.  F.  R.  Co.  v.  S.  W.  Tel.  &  T.  Co., 
C.  C.  A.,  121  Fed.  276.  But  see 
Davidson  v.  Calkins.  92  Fed.  230; 
Lehigh  Valley  C.  Co.  v.  Hamblen, 
23  Fed.  225. 

nSeccoinb  v.  Wurster,  83  Fed. 
856;  Larabee  v.  Dolley,  175  Fed. 
365. 

18  Illinois    Life    Ins.    Co.    v.    New- 


§  82] 


STATE    STATUTES    CREATING    RIGHTS. 


o45 


statutes  authorizing  an  action  for  the  protection  of  a  water 
right,  in  which  all  persons  who  have  diverted  water  from  the 
same  stream  or  source  are  joined,  and  the  court,  in  one  judg- 
ment, settles  the  relative  rights  and  priorities  of  all  parties  to 
the  action ; 19  empowering  a  guardian,  with  the  permission  of 
the  State  court,  to  mortgage  his  ward's  estate,  but  not  clauses 
providing  that  such  a  mortgage  can  only  be  foreclosed  in  the 
court  which  authorized  its  execution;20  creating  and  providing 
for  the  enforcement  of  a  mechanic's  lien ; 21  authorizing  a  bill 
by  the  debtor,  to  compel  the  return  or  cancellation  of  securities 
for  a  usurious  loan,  without  payment  or  the  offer  of  payment  of 
the  amount  borrowed  with  the  lawful  interest22 — but  it  has 
been  held  that  a  court  of  equity  may  allow  interest  upon  an  un- 
liquidated claim,  although,  by  the  State  practice,  such  interest 
is  not  allowed,23  and  although  at  common  law  the  State  rulings 
upon  this  point  would  be  followed ;  24  authorizing  a  State  court 
of  equity  to  enforce  an  order  of  the  State  railroad  commissioners, 
when  a  bill  was  filed  to  restrain  the  enforcement  of  such  or- 
der;  25  authorizing  a  court  of  equity  after  the  destruction  of  the 
public  records  to  enter  a  decree  establishing  and  confirming  the 
title  of  a  landowner;26  authorizing  the  assignee  of  an  insolvent 
to  apply  for  the  dissolution  of  levies  of  attachments  and  execu- 
tions against  his  property ; 27  and  they  enforce  a  vendor's  lien 
recognized  by  the  State  common  law.28    The  United  States  Cir- 


man,   141   Fed.   449.     See,   however, 
the  authorities  cited  §  70,  supra. 

W  Ames  Realty  Co.  v.  Big  Indian 
Mining  Co.,  146  Fed.  106. 

20  Davis  v.  James,  2  Fed.  618. 

21  Idaho  &  0.  L.  I.  Co.  v.  Brad- 
bury, 132  U.  S.  509,  33  L.  ed.  433; 
Sheffield  Furnace  Co.  v.  Witherow, 
149  U.  S.  574,  579,  37  L.  ed.  853, 
856.  But  see  as  to  attorney's  lien, 
Sherry  v.  0.  S.  N.  Co.,  72  Fed.  565. 

22  Missouri,  Kansas  &  Texas  Tr. 
Co.  v.  Krumseig,  172  U.  S.  351,  43 
L.  ed.  474;  Olds  v.  Curlette,  145 
Fed.  661.  But  see  Matthews  v. 
Warner,  6  Fed.  461,  465;  affirmed 
without  passing  on  this  point,  112 
U.  S.  600,  28  L.  ed.  851. 


23  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  C.  C.  A.,  198  Fed.  778, 
779. 

24  Stephens  v.  Phrenix  Bridge  Co., 
C.  C.  A.,  139  Fed.  248,  71  C.  C.  A. 
374. 

25  Piatt  v.  Lecocq,  C.  C.  A.,  15 
L.R.A.(N.S.)   558,  158  Fed.  723. 

26Gormley  v.  Clark,  134  U.  S. 
338,  33  L.  ed.  909. 

27Brochon  v.  Wilson,  91  Fed.  617. 

28  Fisher  v.  Shropshire,  147  U.  S. 
133,  37  L.  ed.  109;  Chilton  v.  Brai- 
den's  Adm'x.  2  Black,  458,  17  L. 
ed.  304;  Wilson  v.  Plutus  Mill.  Co., 
C.  C.  A.,  174  Fed.  317. 


:;n; 


JURISDICTION    IN    EQUITY. 


[§  82 


cuit  Court  for  the  District  of  Connecticut  followed  the  State 
statute,  providing  that  "Courts  of  equity  may  pass  the  title  to 
real  estate  by  decree  without  any  act  of  the  respondent,  .  .  . 
and  such  decree  when  recorded  shall  be  as  effectual  as  the  ad- 
verse deed  of  respondent."29  It  has  been  held  that  the  Federal 
courts  in  Ohio  should  follow  the  State  statute  authorizing  a  de- 
cree of  specific  performance  against  a  non-resident  not  served 
within  the  State,  provided  that  jurisdiction  is  obtained  under 
the  Revised  Statutes  of  the  United  States;30  that  the  summary 
method  of  foreclosing  a  mortgage  under  the  Louisiana  Code  be- 
longs on  the  equity  side  of  the  court ; 31  and  that  the  Louisiana 
statute  authorizing  a  summary  proceeding  to  set  aside  an  in- 
correct assessment  for  taxation  will  be  enforced  pursuant  to 
the  chancery  practice  on  the  equity  side  of  the  court,  and  not 
in  accordance  with  the  State  practice  by  a  petition  upon  the 
common-law  side.32  The  Massachusetts  employers'  liability 
act,  which  authorizes  an  action  to  recover  damages  for  the  death 
of  an  employee,  "to  be  assessed  with  reference  to  the  degree  of 
culpability  of  the  employer  or  of  the  person  for  whose  negli- 
gence the  employer  is  liable,"  is  not  a  penal  statute,  in  such  a 
sense  that  an  action  based  thereon  may  not  be  maintained  in  a 
Federal  court  at  common  law.33  A  State  statute  cannot  give  a 
Federal  court  jurisdiction  in  equity  of  a  case  in  which  there  is 
an  adequate  remedy  at  common  law.34  A  Federal  court  will 
not  follow  a  State  statute  which  authorizes  a  creditor's  bill 
against  an  individual35  or  a  corporation,36  even  against  a  stock- 
holder where  no  accounting  is  required,37  by  a  complainant  wdio 
has  not  obtained  a  judgment  establishing  his  claim;  but  a 
State  statute  was  followed  which  gave  such  a  remedy  to  the 


29  A.   &   W.   Sprague   Mfg.   Co.   v. 
Hoyt.  29  Fed.  421.     See  infra,  §  441. 

30  Single  v.  Scott  Paper  Mfg.  Co., 
55  Fed.  553,  557. 

31  Fleitas    v.    Richardson,    147    U. 
S.  538,  37  L.  ed.  272. 

32  Lindsay    v.    First    Nat.    Bank. 
156  U.  S.  485.  39  L.  ed.  505. 

33  Malloy     v.     American     Hide    & 
Leather  Co..  148   Fed.  4S2. 

34  Whitehead  v.  Shattuck,   138   U. 


S.  J  46,  34  L.  ed.  873;  Scott  v.  Neely, 
140  U.  S.   10(3,  35  L.  ed.  358. 

35  Scott  v.  Neely,  140  U.  S.  106, 
35  L.  ed.  358,  Gates  v.  Allen,  149 
C.  S.  451,  37  L.  ed.  804. 

36  Morrow  Shoe  Mfg.  Co.  v.  New 
Eng.  Shoe  Co.,  60  Fed.  341;  Atlan- 
tic &  F.  R.  Co.  v.  Western  Ry.  Co., 
C.  O.  A..  50  Fed.  790. 

37Alderson  v.  Dole,  C.  C.  A.,  74 
Fed.  29. 


§  82] 


STATE    STATUTES    CREATING    EIGHTS. 


347 


creditor  of  an  insolvent  decedent.38  It  has  been  held:  that  the 
New  Jersey  statute  authorizing  the  inspection,  by  a  stockholder, 
of  the  books  of  his  corporation,  cannot  be  enforced  by  a  suit 
in  equity ; 39  and  that  the  Federal  court  will  not  enforce  the 
Massachusetts  statute  authorizing  the  holder  of  a  tontine  policy 
to  maintain  a  bill  in  equity  against  the  insurance  company  for 
an  accounting.40  The  Federal  court  in  that  State  refused  to  fol- 
low a  statute  of  Virginia  which  gave  the  complainant  in  a  cred- 
itor's bill  a  priority  over  other  creditors  of  the  same  class.41 
Whether  a  mortgagee  must  sue  at  law  or  in  equity  to  recover 
from  one  who  by  a  covenant  with  the  mortgagor  has  assumed  the 
mortgage  depends  upon  the  law  of  the  forum,  not  on  the  law 
of  the  place  where  the  deed  and  mortgage  were  made  and  the 
land  is  situated.42  When  a  State  statute  creating  a  new  liabil- 
ity provides  an  exclusive  remedy,  such  liability  can  be  enforced 
in  the  Federal  courts  in  no  other  manner.43  When  a  State  stat- 
ute creates  a  new  liability  and  provides  that  it  can  only  be  en- 
forced in  a  specified  State  tribunal,  the  Federal  courts  will  en- 
force the  liability,  and  reject  the  clause  respecting  the  exclusive 
jurisdiction.44  Where,  however,  the  suit  authorized  is  one 
against  the  State  itself,  and  the  statute  shows  that  the  legis- 
lature contemplated  that  the  State  court  alone  should  entertain 
the  same,  the  Federal  courts  have  no  jurisdiction.45  Otherwise, 
the  exceptions  made  by  the  State  statute  will  be  usually  recog- 
nized by  the  Federal  court.46 


38Lilienthal  v.  Drucklieb,  C.  C. 
A.,  92  Fed.  753.  In  the  District 
of  Columbia  such  a  bill  may  bo 
maintained  without  statutory  au- 
thority. Kennedy  v.  Cresvvell,  101 
U.  S.  641  (at  p.  645),  25  L.  ed. 
1075.  1076;  s.  c,  Creswell  v.  Ken- 
nedy, 3  MacArthur,  78.  Other  au- 
thorities in  the  District  Court  to 
the  same  effect  are,  Dunn  v.  Mutt, 
4  Mack,  289;  Richardson  v.  Penicks, 
1  App.  D.  C.  261,  at  p.  267:  Offutt 
v.  King.  1  MacArthur,  312.  But 
see  Thiel  Detective  Service  Co.  v. 
McClure,  130  Fed.  55. 

39  Maeder  v.  Buffalo  Bill's  Wild 
West  Co.,  132  Fed.  280. 


40  Peters  v.  Equitable  Life  Assur- 
ance Society,  149  Fed.  290. 

«Talley  v.  Curtain,  C.  C.  A.,  54 
Fed.  43. 

42  Willard  v.  Wood,  135  U.  S.  309, 
34  L.  ed.  210. 

«  Fourth  Xat.  Bank  v.  Franck- 
lyn,  120  C.  S.  747,  30  L.  ed.  825; 
Flour  City  Nat.  Bank  v.  Wechsel- 
berg,  45  Fed.  547. 

44  Davis  v.  James,  2  Fed.  618. 
Cf.  Bowker  v.  Hill.  115  Fed.  528; 
Hale  v.  Tyler.  115  Fed.  833. 

45  Chandler  v.  Dix,  194  U.  S.  590, 
48  L.  ed.  1129.     Infra,  §  105. 

46  Harrison    v.    Remington    Paper 


348 


JURISDICTION    IN    EQUITY. 


[§  83 


§  83.  State  statutes  cannot  impair  the  jurisdiction  nor 
regulate  the  practice  of  Federal  courts  of  equity.  No  State 
Statute  giving  one  of  its  courts — for  example,  a  court  of  pro- 
bate— exclusive  jurisdiction  of  a  certain  class  of  litigation  can 
impair  the  jurisdiction  of  the  Federal  courts.1  Xo  State  stat- 
ute enlarging  the  powers  of  courts  of  common  law  can  impair 
the  jurisdiction  of  a  Federal  court  of  equity.2  Xo  State  stat- 
ute diminishing  or  destroying  an  equitable  remedy,  or  in  any 
way  regulating  the  practice  in  courts  of  equity,  can  have  any 
effect  upon  the  jurisdiction  or  practice  of  the  Federal  courts.3 
Such  are  statutes  requiring  a  mortgagor  to  tender  the  debt  se- 
cured by  his  mortgage  before  filing  a  bill  to  redeem  the  mort- 
gaged premises ; 4  requiring  a  bill  to  foreclose  a  mortgage  given 
to  secure  a  judgment  to  show  that  execution  has  been  issued  un- 
der the  judgment  and  returned  unsatisfied;5  requiring  leave 
to  be  obtained  from  a  State  court  before  a  suit  can  be  brought 
to  enforce  a  judgment  therein  entered ; 6  or  the  presentment  of 
a  claim  to  the  comptroller 7  or  city  council 8  or  the  termination 
of  an  appeal  to  a  specified  State  court  from  the  decision  of  the 
municipal  authorities  upon  such  an  appeal,9  before  a  suit 
against  the  city:  or  the  presentment  of  a  claim  to  an  executor 


Co.,  C.  C.  A.,  3  L.R.A,(N.S.)  954, 
140  Fed.  385. 

§  83.  1  Suydam  v.  Broadnax,  14 
Pet.  07,  10  L.  ed.  357;  Hull  v.  Dills, 
10  Fed.  657;  Serames  v.  Whitney, 
50  Fed.  000;  Hershberger  v.  Blew- 
ett,  55  Fed.  170;  Heaton  v.  Thatcher, 
59  Fed.  731. 

2McConihay  v.  Wright,  121  U.  S. 
201,  200,  30  L.  ed.  932,  933;  and 
cases  cited.  Borden's  Condensed 
Milk  Co.  v.  Baker,  C.  C.  A.,  177 
Fed.  906,  where  the  State  statute 
gave  relief  in  certiorari^  Western 
Union  Tel.  Co.  v.  Trapp,  C.  C.  A., 
186  Fed.  114,  a  suit  to  enjoin  the 
collection  of  taxes. 

3  Boyle  v.  Zacharie,  6  Pet.  648, 
8  L.  ed.  532;  Bein  v.  Heath.  12 
How.  (U.  S.)  168,  179,  13  L.  ed. 
939,  044:  Noonan  v.  Lee,  2  Black, 
499,  509,  17  L.  ed.  278,  281;  Thomp- 


son v.  Railroad  Cos.,  6  Wall.  134, 
18  L.  ed.  705:  Cowles  v.  Mercer 
County,  7  Wall.  118,  19  L.  ed.  86; 
Payne  v.  Hook,  7  Wall.  425,  19  L. 
ed.  260;  Railway  Co.  v.  Whitton's 
Adm'r,  13  Wall.  270,  285,  20  L.  ed. 
571,  576;  Smith  v.  Railroad  Co.,  99 
U.  S.  398,  25  L.  ed.  437.  But  see 
Massachusetts  B.  L.  Ass'n  v.  Loh- 
miller,  C.  C.  A.,  74  Fed.  23. 

4  Gordon  v.  Hobart,  2  Sumn.  401. 
See  Klenk  v.  Byrne,   143  Fed.  1008. 

5  Dow  v.  Chaniberlin,  5  McLean, 
281. 

6  Phelps  v.  O'Brien  County,  2 
Dill.  518. 

7Gamewell  F.  A.  Tel.  Co.  v. 
Mayor,  etc..  31   Fed.  312. 

8  Barber  Asphalt  Pav.  Co.  v.  Mor- 
ris, 132  Fed.  945,  66  C.  C.  A.  55, 
07   L.R.A.  761. 

9  Ibid. 


§    83]      STATE  STATUTES  REGULATING  EQUITY  PRACTICE. 


349 


before  a  suit  thereupon  can  be  revived  against  the  estate  of 
a  decedent; 10  forbidding  an  injunction  against  the  collection  of 
illegal  taxes;  n  requiring  that  a  bond  be  given  before  an  injunc- 
tion can  be  granted;  or  regulating  the  form  of  the  security  then 
required  or  the  proceedings  to  enforce  the  same ; 13  regulating 
the  fees  in  receiverships;14  determining  what  shall  consti- 
tute notice  of  a  pending  suit ; 15  authorizing  persons  to 
agree  upon  a  statement  of  facts,  and  to  stipulate  that  the 
court  take  jurisdiction  to  try  a  cause  and  render  a  decree 
without  pleadings ; 16  authorizing  an  appearance  by  his  general 
guardian,  to  bind  an  infant  not  personally  served  with  proc- 


18 


ess ; 17  authorizing  the  examination  of  a  party  before  trial ; 
or,  in  the  absence  of  a  Federal  statute  regulating  the  manner  of 
taking  depositions ; 19  providing  that  a  county  can  be  sued  only 
in  a  specified  State  court;20  forbidding  a  foreign  corporation 
to  sue  until  it  has  complied  with  a  statutory  condition.21  It 
has  been  said  that  proceedings  for  the  foreclosure  of  a  mortgage 
in  a  Federal  court  should  proceed  upon  the  ordinary  lines  of 


10  Pond  v.  U.  S.,  C.  C.  A.,  Ill  Fed. 
989;  Western  Union  Tel.  Co.  v. 
Trapp,  C.  C.  A.,  186  Fed.  114. 

"  In  re  Tyler,  149  U.  S.  1G4,  189, 
37  L.  ed.  689,  697. 

13  Bein  v.  Heath,  12  How.  (U.  S.) 
168,  13  L.  ed.  939;  Russell  v.  Far- 
ley, 105  U.  S.  437.  26  L.  ed.  1061 ; 
Meyers  v.  Block.  120  U.  S.  206,  211, 
30  L.  ed.  642,  643. 

14  Guaranty  Tr.  Co.  v.  Galveston 
City  R.  Co.,  107  Fed.  311.  But  see 
25  St.  at  L.  436. 

iSMcClaskey  v.  Barr,  48  Fed. 
130,  132.  Contra,  Jones  v.  Smith, 
40  Fed.  314;  Gamble  v.  Rural  In- 
dependent School  Dist.,  76  C.  C.  A., 
539,  146  Fed.  113. 

16  Xickerson  v.  Atchison,  T.  &  S. 
F.  R.  Co.,  1  McCrary,  383. 

17  N.  Y.  Life  Ins.  Co.  v.  Bangs, 
103  U.  S.  780.  26  L.  ed.  609. 

18  Ex  parte  Fisk,  113  U.  S.  713, 
28  L.  ed.  1117;  Dravo  v.  Fabel,  132 
U.    S.    487,    33    L.    ed.    421;    Harks 


Dental  Ass'n  v.  International  T.  C. 
Co.,  194  U.  S.  303,  4S  L.  ed.  989. 
See  infra,  §  359. 

19  Ex  parte  Fisk.  113  U.  S.  713, 
28  L.  ed.  1117:  Dravo  v.  Fabel,  132 
U.  S.  487.  33  L.  ed.  421:  Hanks  v. 
Dental  Ass'n  v.  International  T.  C. 
Co.,  194  U.  S.  303,  306,  48  L.  ed. 
989,  990:  U.  S.  v.  50  Boxes  and 
Packages  of  Lace,  92  Fed.  601: 
Tabor  v.  Indianapolis  Journal  News- 
paper Co.,  66  Fed.  423.  See  infra, 
§§  284,  372. 

20  Cowles  v.  Mercer  County,  7 
Wall.  118,  19  L.  ed.  86;  Lincoln 
County  v.  Luning,  133  U.  S.  529, 
33  L.  ed.  766.  See  Chicot  County 
v.  Sherwood,  148  U.  S.  529,  37  L. 
ed.  546. 

21  Bank  of  X.  A.  v.  Barling,  44 
Fed.  641  ;  affirmed^  as  Barling  v. 
Bank  of  X.  A..  C.  C.  A.,  50  Fed. 
260;  Vitagraph  Co.  v.  Twentieth 
Century  Optiscope  Co.,  157  Fed. 
699. 


350  JURISDICTION    IN    EQUITY.  [§    84 

such  proceedings  in  the  State  courts.22  But  it  has  been  held 
that  equitable  relief  ruay  be  given  on  the  submission,  upon  an 
agreed  statement  of  facts,  of  an  action  of  assumpsit  brought  on 
the  common-law  side  of  the  court,  and  a  stipulation  that  judg- 
ment should  be  rendered  in  accordance  with  the  opinion  of  the 
court  thereupon.23  A  State  statute  providing  that  if  by  mistake 
a  suit  was  brought  in  equity  which  should  have  been  at  common 
law  there  should  be  no  abatement,  but  that  the  cause  be  trans 
ferred  to  the  common-law  docket,  was  followed  in  the  Federal 
court.24  The  New  York  statute  providing  that,  upon  the  consol- 
idation of  two  corporations,  suits  pending  by  or  against  either 
shall  not  abate,  will  be  followed  by  the  Federal  courts  at  equity, 
"not  because  the  State  statute  is  operative  to  regulate  the  prac- 
tice and  procedure  of  Federal  courts  in  equity  suits,  but  because, 
so  far  as  the  litigated  life  of  the  artificial  person  (properly  a 
party  to  the  suit  when  brought)  is  concerned,  there  has  been  no 
change,  the  only  power  which  could  destroy  it  having  scrupu- 
lously refrained  from  doing  so."  25 

§  84.  Sources  of  Federal  equity  practice.  The  Revised 
Statutes  provide:  "The  Supreme  Court  shall  have  power  to 
prescribe,  from  time  to  time,  and  in  any  manner  not  inconsistent 
with  any  law  of  the  United  States,  the  forms  of  writs  and  other 
process,  the  modes  of  framing  and  filing  proceedings  and  plead- 
ings, of  taking  and  obtaining  evidence,  of  obtaining  discovery, 
of  proceeding  to  obtain  relief,  of  drawing  up,  entering,  and  en- 
rolling decrees,  and  of  proceeding  before  trustees  appointed  by 
the  court,  and  generally  to  regulate  the  whole  practice  to  be  used 
in  suits  in  equity  or  admiralty,  by  the  Circuit  and  District 
Courts."  *  The  several  "District  Courts  mav,  from  time  to 
time,  and  in  any  manner  not  inconsistent  with  any  law  of  the 
United  States,  or  with  any  rule  prescribed  by  the  Supreme  Court 
under  the  preceding  section,  make  rules  and  orders  directing 
the  returning  of  writs  and  processes,  the  filing  of  pleadings,  the 

22  Deck  v.  Whitman,  96  Fed.  873;  25  Edison  Electric  Light  Co.  v.  U. 
Knickerbocker  Tr.  Co.  v.  Penacook  S.  El.  Light  Co.,  52  Fed.  300,  313; 
.Mfg.  Co.,  100  Fed.  814.  See,  how-  s.  c,  3  C.  C.  A.  83,  per  Lacombe, 
ever,  Xalle  v.  Young,  1G0  U.  S.  024,  J.  See  Marion  Phosphate  Co.  v. 
40  L.  ed.  5G0.  Perry,  74  Fed.  425. 

23  Knight  v.  Fisher,  58  Fed.  991.  §  84.     1  U.  S.  R.  S.,  §  917. 

24  TJ.  S.  Bank  v.  Lyon  County,  48 
Fed.  632. 


§   §1] 


SOURCES   OF   EQUITY   PRACTICE. 


351 


taking  of  rules,  the  entering  and  making  up  of  judgments  by  de- 
fault, and  other  matters,  in  vacation,  and  otherwise  regulate 
their  own  practice  as  may  be  necessary  or  convenient  for  the 
advancement  of  justice  and  the  prevention  of  delays  in  proceed- 
ings." 2  These  statutes  are  constitutional3  and  the  rules  thus 
promulgated,  when  not  in  conflict  with  the  Federal  Constitution 
or  a  statute  of  the  United  States,  have  the  force  and  effect  of 
law.4  They  bind  the  United  States  as  well  as  individuals.6 
Under  these  provisions  prior  to  the  year  1912  the  Supreme 
Court  had  from  time  to  time  promulgated  ninety  four  rules 
of  equity  practice6  and  most  of  the  inferior  courts  have 
also  adopted  rules  of  their  own.  The  ninetieth  equity  rule 
of  the  Supreme  Court,  which  was  promulgated  in  March, 
1842,  provided  that,  ''in  all  cases  where  the  rules  prescribed 
by    this   court   or   by   the    Circuit   Court   do   not   apply,    the 


2U.  S.  R.  S.,  §  918.  This  must 
be  construed  in  connection  with  U. 
S.  R.  S.,  §  914,  requiring  the  prac- 
tice in  actions  at  common  law  to 
conform  as  near  as  may  be  to  the 
practice  in  the  State  courts  of  rec- 
ord; any  rule  of  the  court  to  the 
contrary  notwithstanding.  Import- 
rs'  &  Traders'  Nat.  Bank  v.  Lyons, 
134  Fed.  510. 

3  Wayman  v.  Southard,  10  Wheat. 
1,  6  L.  ed.  253;  Beers  v.  Houghton, 
9  Peters,  338,  359,  9  L.  ed.  149; 
White  v.  Toledo,  St.  L.  &  K.  C.  R. 
Co.,  79  Fed.  133. 

4  Bank  of  U.  S.  v.  White,  8  Peters, 
262,  269,  8  L.  ed.  938,  941 ;  Seymour 
v.  Phillips  &  Colby  Const.  Co.,  7 
Biss.  460,  Fed.  Cas.  No.  12689; 
Northwestern  Mut.  Life  Ins.  Co.  v. 
Keith,  C.  C.  A.,  77  Fed.  374;  Am. 
Graphophone  Co.  v.  Nat.  Phono- 
graph Co.,  127  Fed.  349;  U.  S.  v. 
Barber  Lumber  Co..  169  Fed.  184. 
It  was  held  that  a  Circuit  Court  of 
Appeals  had  no  authority  to  pro- 
mulgate a  rule  permitting  the  pros- 
ecution of  appellate  proceedings  in 
forma  pauperis.    Bradford  v.  South- 


ern Ry.  Co.,  195  U.  S.  243,  25  Sup. 
Ct.  55,  49  L.  ed.  178;  Re  Bradford's 
Petition,  C.  C.  A.,  139  Fed.  518,  71 
C.  C.  A.  334;  overruling  Reed  v. 
Pennsylvania  Co.,  C.  C.  A.,  Ill  Fed. 
714,  49  C.  C.  A.  572.  See  infra,  413. 
5  U.  S.  v.  Barber  Lumber  Co., 
169  Fed.  184.  The  Equity  Rules  of 
1822  are  published  in  7  Wheaton 
xvil.,  5  L.  ed.  375.  The  Equity  Rules 
of  1842,  in  1  Howard,  xli.  The 
amendments  thereto  are  to  be  found 
in  the  volumes  of  the  reports,  pub- 
lished about  the  time  of  their  pro- 
mulgation. For  a  criticism  of 
the  practice  under  these  rules, 
see  Monarch  Vacuum  Cleaner  Co. 
v.  Vacuum  Cleaner  Co.,  194  Fed. 
172.  In  minor  particulars,  many 
of  the  courts  disregarded  them.  In 
C.  C,  W.  D.  Tenn.,  no  entry  was 
made  in  the  order-book  for  more 
than  seven  years.  Electrolibration 
Co.  v.  Jackson,  52  Fed.  773,  774. 
In  E.  D.  Mo.,  for  a  long  time  no 
order-book  was  kept.  Hopkins' 
Rules,    10. 

6  See   Kelley  v.  T.  L.   Smith   Co., 
C.  C.  A.,  196  Fed.  466. 


353  JUEISDICTIOX    IN    EQUITY.  [§    S-i 

practice  of  the  Circuit  Court  shall  be  regulated  by  the  present 
practice  of  the  High  Court  of  Chancery  in  England,  so  far 
as  the  same  may  reasonably  be  applied  consistently  with  the 
local  circumstances  and  local  conveniences  of  the  district  where 
the  court  is  held,  not  as  positive  rules,  but  as  furnishing  just 
analogies  to  regulate  the  practice.''  The  previous  rule  promul- 
gated at  the  October  term,  1822.  was:  "In  all  cases  where  these 
rules  prescribed  by  this  Court  or  the  Circuit  Courts,  do  not 
apply,  the  practice  of  the  Ciruit  Courts  shall  be  regulated  by 
the  practice  of  the  High  Court  of  Chancery  in  England." 7 
Judge  Sawyer  said:  "The  rule  quoted  simply  regulates  the 
practice  in  exercising  the  jurisdiction  of  the  court  in  those 
respects  wherein  the  rules  adopted  do  not  apply  ;  but  the  practice 
of  the  High  Court  of  Chancery  is  to  be  applied,  not  as  con- 
trolling, but  simply  as  furnishing  just  analogies  to  regulate  the 
practice."  8  By  reference  to  these  sources  and  the  decisions  of 
the  courts  resulting  from  them,  the  practice  at  equity  in  the 
courts  of  the  United  States  was  formerly  determined.  In  the 
district  of  New  Jersey,  where  the  Federal  statutes  and  equity 
rules  were  silent,  the  State  chancery  rules  were  followed.  At 
the  October  term  of  1912,  the  Supreme  Court  promulgated 
eighty-one  new  rules  of  equity  practice,  which,  although  they 
retain  many  of  the  rules  of  1842,  omitted  the  ninetieth  rule, 
which  has  just  been  quoted.  What  practice  should  be  followed  in 
eases  where  "the  present  rules  and  statutes  are  silent  has  not  yet 
been  decided.  The  prudent  practitioner  will  in  such  case  follow 
the  chancery  practice  in  England  as  it  existed  in  1842  or  previ- 
ouslv.9  Sine  the  alterations  in  the  new  rules  are  based  to  a 
large  extent  upon  provisions  in  the  English  Rules  of  1883,  which 
in  their  turn  were  suggested  by  the  New  York  Code  of  Pro- 
cedure, written  by  David  Dudley  Field,  where,  the  construction 
of  the  equity  rules  of  1012  is  doubtful,  the  decisions  of  the 

7  Rule  xxxiii,  7  Wheaton,  xni.  works   which   host  explain   the  Eng- 

8  Lewis  v.  Shainwald,  7  Saw.  40.1,  lish  chancery  practice  in  1841. 
405.  Note    by    Mr.    Justice    Bradley    in 

9  The  first  American  edition  of  Thomson  v.  Wooster.  114  U.  8.  104, 
Daniell's  Chancery  Practice  and  the  29  L.  ed.  105.  107:  Maeder  v.  Buf- 
second  American  edition  of  Smith's  falo  Bill's  Wild  \Vest  Co.,  132  Fed. 
Practice,    both   of   which    were    pub-  280. 

lished  in  1837,  are  the  autboritative 


§  84] 


SOURCES   OF    EQUITY   PRACTICE. 


353 


English  courts  since  1883  and  of  the  courts  of  New  York  since 
1848  should  be  consulted.10 


10  ]t  is  the  duty  of  the  courts  as 
far  as  possible  to  mould  procedure 
so  as  to  meet  the  exigencies  of  the 
case.  Davies  v.  Andre',  24  Q.  B.  D. 
598,  607.  They  must  not  give  to 
the  rules  a  pleader's  construction, 
but  a  construction  consistent  with 
common  sense.  Edwards  v.  Low- 
ther,  24  W.  R.  434.  "Practical 
rules  ought  not  to  be  construed  ac- 
Fed.  Prac.  Vol.  I —23. 


cording  to  mere  grammar,  if  that 
which  is  an  absurdity  from  a  busi- 
ness point  of  view  is  thereby  pro- 
duced." Hannay  v.  Smurthwaite 
(1893),  2  Q.  B.  412,  420,  per  Esher, 
M.  R.  Where  one  rule  is  general 
and  another  specific,  the  latter 
should  prevail.  Cavendish  v.  Strutt 
(1904),  1  Ch.  524,  526,  527,  531; 
Locke  v.  White,  33  Ch.  D.  308. 


CHAPTER  III. 

PERSONS    WHO    MAY    BE    PLAINTIFFS    OR    DEFENDANTS    IN    A    SUIT 

IN  EQUITY. 

§  85.  General  rule  as  to  persons  capable  of  being 
plaintiffs.  All  persons  may  file  a  bill  in  equity  in  their  own 
right,  except  alien  enemies,  infants,  idiot*,  lunatics,  married 
women,  foreign  corporations  who  have  been  deprived  of  the 
right  by  statute,  and  possibly  those  who  by  the  laws  of  a  State 
have  been  declared  civilly  dead. 

§  86.  States  as  plaintiffs.  A  State  may  sue  as  plaintiff 
in  any  court  of  the  United  States  which  has  jurisdiction  of  the 
case.1  A  State  cannot  sue  in  the  Supreme  Court  of  the  United 
States  to  collect  a  judgment  for  a  penalty  recovered  in  the 
court  of  such  State  against  a  corporation  chartered  by  another 
State.2 

§  87.  Alien  enemies  as  plaintiffs.  Subjects  of  a  country 
at  war  with  the  United  States  cannot  sue  in  the  State  or  Federal 
courts  before  the  conclusion  of  peace,  unless  they  are  residents 
of  this  country  or  within  the  jurisdiction  of  one  of  our  allies.1 
If  a  complainant  become  an  alien  enemy  after  a  suit  has  been 
begun,  the  defense  may  be  interposed  by  answer.2  The  effect 
of  such  a  defense  is  then,  however,  merely  to  suspend  the 
cause  of  action  and  suit,  not  to  dismiss  the  bill.3 

§  86.     1  Ames  v.  Kansas,   111    U.  Clarke  v.  Morey,  10  Johns.   (X.  Y.) 

S.    440.    28    L.    ed.    482;    U.    S.    v.  69;  2  Kent's  Com.  63. 

Louisiana.   123   U.  S.  32,  31   L.  ed.  2  Bell  v.  Chapman,  10  Johns.    (N. 

69;  supra,  §   13.     For  the  jurisdic-  Y.)   183. 

tion    of   suits   brought    in   the   name  3  Hutchinson    v.    Brock,    11    Mass. 

of   a   State   ex   relatione,   see  supra,  119;    Parkinson    v.    YVentworth.    11 

§  40.  Mass.  26;  Levine  v.  Taylor,  12  Mass. 

2  Wisconsin    v.    Pelican    Ins.    Co.,  8;    Hamersley  v.  Lambert,  2  Johns. 

127   U.  S.  265.  32  L.  ed.  230.  (\     (X.   Y.)    508;    Ex  parte  Bouss- 

§  87.     1  Wilcox  v.  Henry.   1    Dall.  maker,  13  Yes.  71  :  Wilcox  v.  Henry. 

CO.    1    L.    ed.    41;    Crawford   v.    The  1   Dall.  60.  1   L.  ed.  41:   Story's  Eq. 

William    Penn,    1    Pet.    C.    C.    106;  PI.,    §    54.      But    see    Mumford    v. 

Mumford  v.  Mumford,  1    Call.  366;  Mumford,   1  Gall.  366. 

354 


§  89] 


MARRIED   WOMEX   AS    PLAT  XTI  FES. 


or>:> 


§  88.  Foreign  corporations.  The  State  statute  cannot  de- 
prive a  foreign  corporation  from  suing  in  its  courts  upon  a  con- 
tract connected  with  interstate  commerce.1  To  what  extent  it 
can  deny  a  corporation  of  another  State,  not  so  engaged, 
equality  of  treatment  with  individual  citizens,  in  respect  to  the 
right  to  sue  and  defend  in  its  courts,  is  a  doubtful  question.2 
It  may  forbid  a  corporation  of  another  State  from  making  a 
contract  within  its  borders  which  is  not  connected  with  interstate 
commerce,  until  it  has  complied  with  certain  reasonable  statu- 
tory provisions,  such  as  the  tiling  of  a  copy  of  its  charter  and 
the  payment  of  an  annual  license  fee ;  and  may  further  direct 
that  every  contract  made  within  the  State  before  such  con- 
ditions have  been  complied  with  shall  be  void ; 3  but  no  stat- 
ute can  deprive  such  a  corporation  of  the  right  to  sue  in  a  court 
of  the  United  States  held  within  such  State.4  And  where  the 
State  statute  provided,  "No  foreign  stock  corporation  doing- 
business  in  this  state  shall  maintain  any  action  in  this  state  upon 
any  contract  made  by  it  in  this  state,  unless  prior  to  the  making 
of  such  contract  it  shall  have  procured  such  certificate" ; 5  this 
did  not  prevent  the  recovery  upon  such  contract  in  the  Federal 
court  there  held.6 

§  89.  Married  Women  as  Plaintiffs.  A  married  woman 
originally  could  only  sue  when  "joined  with  her  husband,  unless 
he  had  deserted  her,  and  was  without  the  realm  or  civilly  dead, 
when  she  could  sue  alone;1  or  unless  the  suit  concerned  her 
separate  property,  when  she  was  obliged  to  sue  by  her  next 


§  88.  l International  Textbook 
Co.  v.  Pigg,  217  U.  S.  91,  112,  54 
L.  ed.  078.  687;  Buck  Stove  Co.  v. 
Vickers,  226  U.  S.  205,  214,  57  L. 
ed.  — . 

2  International  Textbook  Co.  v. 
Pigg.  217  U.  S.  91,  112,  54  L.  ed. 
678,  687. 

3  Diamond  Glue  Co.  v.  U.  S.  Glue 
Co..  187  U.  S.  611.  47  L.  ed.  328. 

4  David  Lupton's  Sons  Co.  v.  Au- 
tomobile Club  of  America,  225  U. 
S.  489,  56  L.  ed.  1177.  In  Boston 
Towboat  Co.  v.  John  H.  Sesnon  Co., 
199  Fed.  445.  it  was  held  that  when 
a  suit   was  brought  by   such   a  cor- 


poration, which  had  no  statutory 
right  to  sue,  the  court  might  adju- 
dicate upon  a  counter-claim  inter- 
posed by  the  defendant  and  allow  it 
as  a  set-off  against  the  plaintiff's 
demand,  although  it  could  not  ren- 
der an  affirmative  judgment  in 
favor  of  the  plaintiff  for  any  excess. 
5N.  Y.  Consol.  Laws.  Ch.  23,  §  15, 
6  David  Lupton's  Sons  Co.  v.  Au- 
tomobile Club  of  America.  225  U. 
S.  489,  56  L.  ed.  1177. 

§  89.  1  Story's  Eq.  PI.,  §  61: 
Countess  of  Portland  v.  Prodgers, 
■2  Vein.  104. 


356 


CAPACITY  TO  SUE. 


[§  00 


friend.2  The  next  friend,  however,  was  chosen  by  herself;3 
and  the  husband  was  then  usually  made  a  party  defendant,  that 
he  might  have  an  opportunity  to  assert  any  claim  he  might  have 
to  the  subject-matter  of  the  suit.4  In  the  courts  of  the  United 
States,  however,  the  rule  was  early  laid  down  as  follows: 
"'Where  the  wife  complains  of  the  husband  and  asks  relief 
against  him  she  must  use  the  name  of  some  other  person  in  prose- 
cuting- the  suit;  but  where  the  acts  of  the  husband  are  not  com- 
plained of,  he  would  seem  to  be  the  most  suitable  person  to 
unite  with  her  in  the  suit.  This  is  a  matter  of  practice  within 
the  discretion  of  the  court."  5  In  the  District  Courts  held  in 
the  State  of  New  York,  where  a  married  woman  has  substantial- 
ly all  the  powers  of  a  spinster,  she  may  sue  in  equity,  as 
if  she  were  single,  at  least  if  she  be  a  citizen  of  that  State.6 
In  the  District  Courts  in  the  districts  of  California  the  rule  is 
otherwise.7  When  a  suit  has  been  begun  by  a  married  woman 
alone  who  should  have  sued  by  her  next  friend,  leave  to  amend 
by  adding  to  the  title  the  name  of  a  next  friend  will  always  be 
granted. 

§  90.  Suits  on  behalf  of  infants.  The  Equity  Rules  pro- 
vide: ''All  infants  and  other  persons  so  incapable  may  sue  by 
their  guardians,  if  any,  or  by  their  proehein  ami ;  subject,  how- 
ever, to  such  orders  as  the  court  or  judge  may  direct  for  the 
protection  of  infants  and  other  persons."  A  guardian,  as  such, 
cannot  maintain  an  action  in  a  Srate  other  than  in  which  he 
was  appointed,  in  the  absence  of  a  statute  of  the  forum  per- 
mitting him  to  sue.2  By  the  old  Chancery  practice,  an  infant 
could  only  sue  by  his  next  friend, 2a  who  might  be  any  person 


2  Wake  v.  Parker,  2  Keen.  70; 
Story's  Eq.  PL,  §  63. 

3  Story's  Eq.  PL,  §  61;  Garaber  v. 
Atlee.  2*DeO.  &  Sm.  74:,. 

*Sigel  v.  Phelps,  7  Sim.  239; 
Wake  v.  Parker,  2  Keen.  70;  Story's 
Eq.  PL.  §  63. 

5  Mr.  Justice  McLean  in  Bein  v. 
Heath,  6  How.  228,  240,  12  L.  ed. 
416,  421.  See  Douglas  v.  Butler,  6 
Fed.  228. 

6  Lorillard  v.  Standard  Oil  Co..  2 
Fed.  902.  But  see  Taylor  v.  Holmes, 
14    Fed.    499,    .".14:    U.    S.    v.    Pratt 


Coal  &  Coke  Co.,  18  Fed.  708; 
O'Hara  v.  MacConnell,  93  LT.  S.  150, 
23  L.  ed.  840. 

7  Wills  v.  Pauly.  51   Fed.  257. 

8  Douglas  v.  Butler,  6  Fed.  228; 
Taylor  v.  Holmes,  14  Fed.  499. 

§  90.  lEq.  Rule  70;  copied  in 
substance  from  Eq.  Rule  87,  of  1842. 

2  Lawrence  v.  Nelson,  143  U.  S. 
215.  222.  12  Sup.  Ct.  440.  36  L.  ed. 
130:  Re  Kingsley,  160  Fed.  275; 
Pulver  v.  Leonard.  176  Fed.  586. 

2a  Rule  87;  Story's  Eq.  PL  §  57; 
Dudgeon    v.    Watson,    23    Fed     161; 


§  90] 


INFANT    PLAINTIFFS. 


357 


that  would  undertake  the  suit  in  his  behalf,  subject,  however, 
to  the  costs  and  the  censure  of  the  court,  if  it  were  improperly 
brought.3  The  next  friend  might,  at  any  time,  be  removed  by 
the  court  either  summarily  or  after  a  reference,  if  it  seemed  for 
the  best  interest  of  the  infant  to  appoint  another.4  This  is 
usually  done  if  he  is  interested  in  the  suit.5  It  was  doubtful 
whether  insolvency  and  consequent  inability  to  respond  for  costs 
was,  in  itself,  a  ground  for  the  next  friend's  removal.6  That 
might,  however,  be  a  reason  for  an  order  directing  him  to  give 
security  for  costs.7  The  court  might,  at  any  time,  order  a  refer- 
ence to  a  master,  to  determine  the  propriety  of  a  suit ;  and,  if  it 
appeared  to  have  been  brought  against  the  infant's  interest, 
would  stay  proceedings  in  it  or  dismiss  the  bill,  with  costs  to  be 
paid  by  the  next  friend.8  This  could  be  done  even  without  a 
reference.9  No  such  reference  would,  it  seems,  be  ordered  at 
the  request  of  the  next  friend  himself,10  unless  there  were  an- 
other cause  pending  by  reason  of  which  the  infant's  property 
was  subject  to  the  control  of  the  court,  when  such  a  reference 
might  be  ordered  at  the  instigation  of  a  next  friend,  and  he  be 
paid  his  costs  out  of  the  estate  even  if  the  bill  were  finally  dis- 
missed.11 An  application  to  dismiss  a  bill  as  improperly  filed 
on  behalf  of  an  infant  might  be  made  by  a  person  "as  next 
friend  for  the  purpose  of  this  application,"  12  or  by  a  defendant 
to  the  bill.13  It  seems  that  any  motion  clearly  for  the  interest 
of  an  infant  complainant  could  be  made  by  a  next  friend  for 
the  purpose  of  the  application,  when  the  next  friend  who  filed 
the  bill  refused  to  move.14    If  two  suits  were  instituted  on  be- 


Bradwell  v.  Weeks,  1  J.  Ch.  (N.  Y.) 
325. 

3  Campbell  v.  Campbell,  2  M.  & 
C.  25,  30;  Sale  v.  Sale.  1  Beav.  586; 
Starten  v.  Bartbolomew,  6  Beav. 
143. 

*Naldei  v.  Hawkins,  2  M.  &  K. 
243;  Russell  v.  Sharpe,  1  Jac.  & 
\\  .  482;  Jarvis  v.  Crozier,  98  Fed. 
753,  755. 

5  .Jarvis  v.  Crozier,  98  Fed.  753, 
755.  See  in  Re  Corsellis,  50  Law 
T.  N.  S.  703. 

«Anon.,   1  Ves.  Jr.  409. 


t  Fulton  v.  Rosevelt,  1  Paige  (X. 
Y.),  178,  180.  19  Am.  Dec.  409. 

8  Da  Costa  v.  Da  Costa.  3  P. 
Wins.  140;  Nakler  v.  Hawkins,  2 
M:  &  K.  243;  Sale  v.  Sale,  1  Beav. 
586.  See  King  v.  McLean  Asylum 
of  Massachusetts  General  Hospital, 
64  Fed.  325. 

9  Sale  v.  Sale,  1  Beav.  586. 

10  Jones  v.  Powell,  2  Mer.  141. 
"Taner  v.  Ivie,  2  Ves.  Sen.  466. 

12  0uy  v.  Guy,  2  Beav.  460. 

13  Fox  v.  Suwerkrop,  1  Beav.  583. 
1*  Furtado    v.     Furtado,     6     Jur. 


358  CAPACITY  TO  SUE.  [  §    90 

half  of  the  same  infant  for  the  same  purpose  by  two  next 
friends,  the  court  would  direct  a  master  to  inquire  which  is  most 
for  the  infant's  benefit.15  A  bill  might  be  filed  by  a  next  friend 
on  behalf  of  a  child  still  in  its  mother's  womb.16 

If  an  infant  were  made  co-plaintiff  with  others,  and  it  ap- 
peared that  it  would  be  more  for  his  advantage  that  he  should 
be  made  a  defendant,  an  order  to  strike  out  his  name  as  plaintiff, 
and  to  make  him  a  defendant,  might  be  obtained.17  When  a 
bill  was  filed  on  behalf  of  an  infant,  his  coming  of  age  did  not 
abate  the  suit;  but  he  might  then  elect  whether  he  would  pro- 
ceed with  it  or  not.18  If  he  chose  to  go  on  with  the  case,  all 
further  proceedings  could  be  carried  on  without  any  amendment 
or  the  filing  of  a  supplemental  bill.19  He  was  then  liable  for 
all  costs  of  the  suit,  as  if  he  had  filed  the  bill  after  he  came  of 
age.20  Otherwise,  he  was  not  personally  chargeable  with  costs ;  21 
unless  he  made  a  motion  to  dismiss  the  bill ;  which  it  seems 
could  only  be  done  upon  the  payment  of  costs  by  himself,22  if 
he  could  not  establish  that  the  bill  was  improperly  filed  by  his 
next  friend.23  If  the  next  friend  died  during  the  infant's 
minority,  and  the  latter  took  no  step  in  the  cause  after  he  had 
come  of  age,  the  defendant  might  have  the  bill  dismissed,  but 
without  costs,  since  there  would  then  be  no  one  living  wTho  was 
liable  to  pay  them.24  The  suit  is  brought  in  the  name  of  the 
infant,  not  in  that  of  the  next  friend,25  and  the  infant's  citizen- 
ship is  the  test  of  the  jurisdiction.26  Where  the  bill  shows  that 
the  suit  was  brought  by  a  guardian  in  a  representative  capacity, 
but  by  the  title  it  appears  that  he  sues  individually,  the  title, 
if  necessary,  may  be  amended.27  A  guardian  ad  litem  for  an 
infant,  although  appointed  in  a  State  court  before  the  removal 

227;  Cox  v.  Wright,  9  Jur.   (X.  S.)  21  Waring  v.  C;ane,  2  Paige    (N. 

981;  Guy  v.  Guy,  2  Beav.  4C0.  Y.),  79.  21  Am.  Dec.  70. 

15  Calvert    on    Parties     (2d    ed.),  22  Waring  v.   Crane,   2  Paige    (N. 

418.  Y.)   79,  21  Am.  Dec.  70. 

WLuterel's  Case,   cited  Prec.   Ch.  23  Turner  v.  Turner,  2  Stra.  708. 

50;  Musgrave  v.  Parry,  2  Yern.  710.  24  Morgan    v.    Potter,    157    U.    S. 

"Tappen     v.    Norman,     11     Yes.  195.  39  L.  ed.  670. 

563;  Jarvis  v.  Crozier.  9s   Fed.  753.  25  Wool ridge  v.  McKenna,  8  Fed. 

18  Guy  v.  Guy,  2  Beav.  460.  650:  supra,  §  44. 

19  Hoffman's  Ch.  Pr.  60:   Daniell's  26  Ibid. 

Ch.  Pr.   (2d  Am.  ed.)   102.  27  Pulver    v.    Leonard,    176    Fed. 

20  Daniell's  Ch.  Pr.   (2d  Am.  ed.)       586. 
102. 


91] 


IDIOT?  AND  LUNATICS  AS  PLAINTIFFS. 


359 


of  the  cause,  cannot  without  the  approval  of  the  court,  bind  the 
infant  by  a  contract  concerning  the  amount  of  the  attorney's 
fees.28 

§  91.  Suits  on  behalf  of  idiots,  lunatics,  and  persons  of 
weak  mind.  Idiots  and  lunatics  sue  by  their  committees  or 
guardians,  if  they  have  any,  otherwise  by  next  friends.1  It  is 
the  usual  practice  to  join  them  as  plaintiffs  with  their  represen- 
tatives, though  it  might  be  held  unnecessary  to  do  so  when  one 
has  a  committee  authorized  by  statute  to  sue  in  his  name.2  If 
the  interest  of  the  committe  be  adverse  to  that  of  his  ward,  the 
latter  should  sue  by  a  next  friend.3  Although  the  practice  is  un- 
settled, it  would  be  advisable  to  have  the  next  friend  appointed 
by  the  court.4  Where  a  volunteer  applied  for  the  writ  of  habeas 
corpus  on  behalf  of  a  person  whom  he  alleged  to  be  wrongfully 
confined  as  a  lunatic,  the  court  appointed  another  guardian  ad 
litem  with  the  direction  that  he  examine  the  facts  and  use  his 
own  discretion  in  determining  whether  to  continue  the  proceed- 
ing.5 If  a  plaintiff  become  a  lunatic  after  the  institution  of  a 
suit,  a  supplemental  bill  may  be  riled  in  the  joint  names  of  the 
lunatic  and  of  the  committee  of  his  estate,  which  will  answer 
the  same  purpose  as  a  bill  of  revivor  in  procuring  the  benefit  of 
former  proceedings.6  If  a  committee  die  and  a  new  committee 
is  appointed  after  a  suit  has  been  instituted  by  the  former  for 
the  benefit  of  his  idiot  or  lunatic,  the  proper  way  of  continuing 
the  suit  is  by  a  supplemental  bill  filed  by  the  idiot  or  lunatic 
and  the  new  committee.7  In  England,  a  committee  usually  be- 
fore the  institution  of  a  suit  prayed  the  sanction  of  the  Lord 


28  Ryan  v.  Philadelphia  &  Read- 
ing Coal  &  Iron  Co.,   180  Fed.  253. 

§  91.  1  Rule  87:  Hoffman's  Ch. 
Pr.  61. 

2  See  Ortlcy  v.  Mossoio.  7  Johns. 
Ch.  (X.  V.i  139;  Harrison  v.  Row- 
an, 4  Wash.  C.  C.  202;  Palmer.  At- 
torney-General, v.  Parkhurst,  1 
Chan.  Cas.  112;  Gorham  v.  Gorham, 
3  Barh.  Ch.  (X.  V.)  24:  Hoffman's 
Ch.  Pr.  61  :  Story's  Eq.  PI..  §  6.1, 
and  notes. 

3  Compare      Attorney-General      v. 


Tiler,    1    Dick.   378;    Hoffman's   Ch. 
Pr.  61. 

4  Compare  Attorney-General  v. 
Tiler,  1  Dick.  378:  Hoffman's  Ch. 
Pr.  61;  Story's  Eq.  PI.,  §  64,  and 
notes. 

5  King  v.  McLean  Asylum,  26 
L.R.A.  784.  64  Fed.  331. 

6  See  Brown  v.  Clark.  3  Woode- 
son's  Lect.  378:  Daniell's  Ch.  Pr. 
108. 

7  In  re  Reynolds.  Shelf  on  Lun. 
417;  Daniell's  Ch.  Pr.  108. 


360 


CAPACITY  TO  SUE. 


[§  92 


Chancellor  by  a  petition,  which  was  often  referred  to  a  master.8 
Where  a  bill  had  been  filed  in  the  name  of  an  alleged  lunatic 
under  an  order  of  the  court,  and  thereafter  the  plaintiff  ap- 
peared by  an  attorney  and  moved  to  dismiss  the  bill,  upon  the 
ground  that  she  was  mentally  competent ;  it  was  held,  that  the 
court  was  not  ousted  of  its  jurisdiction,  but  might  inquire  into 
the  mental  competency  of  the  plaintiff.9  It  has  been  said :  that 
in  such  a  case,  the  issue  concerning  the  mental  competency 
should  be  determined  by  a  jury ;  but  that  it  may  be  decided  by 
the  court.10  If  a  person  of  full  age  is  neither  an  idiot  nor  a 
lunatic,  and  is  yet  incapable  of  managing  his  affairs,  the  court 
may  appoint  a  next  friend  to  sue  for  him.11  If  a  bill  has  been 
filed  in  the  name  of  a  plaintiff,  who,  at  the  time  of  filing  it, 
is  in  a  state  of  mental  incapacity,  it  may,  on  motion,  be  taken 
off  the  file,12  but  it  has  been  held  that  a  bill  cannot  be  dismissed 
upon  the  motion  of  the  defendant  because  the  complainant  was 
in  filing  the  same  dominated  by  another  person,  to  such  an 
extent  that  she  was  not  free  to  exercise  her  will,  when  the  com- 
plainant does  not  unite  in  the  motion.13  If,  however,  after  a 
suit  has  been  properly  instituted,  a  plaintiff  becomes  imbecile, 
the  bill  cannot  for  that  reason  be  taken  off  the  file.14 

§  92.  Capacity  of  foreign  executors  and  administrators 
to  sue.  Foreign  executors  and  administrators,  under  which 
term  are  included  those  appointed  in  other  States  than  that 
where  the  court  is  held,  cannot  sue  until  they  have  taken  out 
ancillary  letters  of  administration,1  unless  the  State  statute  au- 


8  In  re  Webb.  Shelf  on  Lun.  417; 
Darnell's  Ch.  Pr.  108. 

9  Isle  v.  Cranby,  199  111.  39,  64 
L.R.A.  513,  64  X.  E.   1065. 

10  Howard  v.  Skinner,  87  Md. 
556.  40  L.R.A.  753;  Pyott  v.  Pyott. 
191  111.  280. 

n  Wartnaby  v.  Wartnaby,  .lac. 
377;  Ovving's  Case,  1  Bland  (Md.), 
370,  373,  17  Am.  Dec.  311;  Story's 
Eq.  PI.  §  66. 

12  Wartnaby  v.  Wartnaby,  Jac. 
377;  Story's  Eq.  PI.  §  66. 

WSpeekart  v.  Schmidt,  C.  C.  A., 
190  Fed.  499. 


14  Wartnaby  v.  Wartnaby,  Jac. 
377. 

§  92.  1  Fenwick  v.  Sears,  1 
Cranch,  259,  2  L.  ed.  101;  Dixon  v. 
Ramsay,  3  Cranch,  319,  2  L.  ed. 
453;  Doe  v.  McFarland,  9  Cranch, 
151,  3  L.  ed.  687;  Kerr  v.  Moon,  9 
Wheat,  565,  6  L.  ed.  161;  Mason 
v.  Hartford.  Providence  &  Fishkill 
R.  Co.,  19  Fed.  53;  Duchesse  d'Auby 
v.  Porter,  41  Fed.  68;  Johnson  v. 
Powers,  139  U.  S.  156,  158,  35  L. 
ed.  112.  113;  Re  Kingsley,  160  Fed. 
275;  J.  B.  &  J.  M.  Cornell  Co.  v. 
Ward,  C.  C.  A...  168  Fed.  51;  Dodge 


93] 


FOREIGN   RECEIVERS   AS   PLAINTIFFS. 


3G1 


thorizes  such  suit;  in  which  case  the  Federal  Court  will  follow 
the  State  practice.8  This  rule  forbids  an  action  by  a  foreign  ad- 
ministrator  without  ancillary  letters  to  recover  damages  for  the 
death  of  his  intestate  within  the  State  where  the  suit  was 
brought.3  It  has  been  held:  that  a  foreign  administrator,  with- 
out ancillary  letters,  may  sue  to  recover  damages  for  the  death 
of  his  intestate,  within  the  State  of  his  appointment;  when  the 
cause  of  action  arises  under  a  statute  of  such  State;4  but  that 
a  foreign  administrator,  appointed  in  the  State  of  his  decedent's 
domicile,  cannot  sue  to  recover  damages  for  the  death,  under  a 
statute  of  a  State  where  the  decedent  died,  which  is  different 
from  those  where  the  appointment  was  made  and  the  suit  is 
brought.5  A  foreign  executor  may  sue  without  ancillary  letters 
when  the  title  is  vested  in  him  as  trustee  by  devise.6  A  foreign 
executor  or  administrator,  without  ancillary  letters,  may  sue  to 
recover  the  proceds  of  the  decedent's  estate,  which  is  in  the 
hands  of  an  agent  of  such  personal  representative.7 

§  93.  Capacity  of  foreign  receivers  to  sue.  Ordinarily, 
a  foreign  receiver  cannot  sue  to  collect  a  cause  of  action  that 
belongs  to  the  corporation;1  even  when  he  brings  a  suit  in  the 


v.  Town  of  North  Hudson,  177  Fed. 
986;  Watkins  v.  Eaton,  C.  C.  A., 
]83  Fed.  384.  An  act  of  Congress 
authorizes  them  to  sue  without  an- 
cillary letters  in  the  District  of  Co- 
lumbia. 24  St.  at  L.  431;  Overby 
v.  Gordon,  177  U.  S.  214.  44  L.  ed. 
741 ;  Brownson  v.  Wallace,  Fed. 
Cas.  No.  2,042,  4  Blatchf.  4G5.  The 
omission  is  cured  by  the  issue  of 
ancillary  letters  at  any  time  before 
the  hearing.  Hodges  v.  Kimball, 
C.  C.  A.,  91   Fed.  845. 

2  Hayes  v.  Pratt,  147  U.  S.  557, 
37  L.  ed.  279 ;  Beaumont  v.  Beau- 
mont, 144  Fed.  128,  under  New  Jer- 
sey Statute. 

3  J.  B.  &  J.  M.  Cornell  Co.  v. 
Ward,  C.  C.  A.,  1G8  Fed.  51  ;  Dodge 
v.  Town  of  North  Hudson,  177  Fed. 
986. 

4  McCarty  v.  N.  Y..  L.  E.  &  W.  R. 
Co.,  62  Fed.  437. 


SMaysville  Street  R.  R.  &  Trans- 
fer Co.  v.  Marvin,  C.  C.  A.,  59  Fed. 
91;  Brooks  v.  Southern  Pac.  Co., 
148  Fed.  986. 

6  De  Forest  v.  Thompson,  40  Fed. 
375. 

7  Moore  v.  Petty,  C.  C.  A.,  135 
Fed.   668. 

§  93.  l  Bootli  v.  Clark,  17  How. 
322,  15  L.  ed.  164;  Hale  v.  Allin- 
son,  188  U.  S.  56,  47  L.  ed.  380; 
Great  Weston  Mining  &  Mfg.  Co. 
v.  Harris,  198  U.  S.  561,  49  L.  ed. 
1163;  Burr  v.  Smith,  113  Fed.  858; 
Hilliker  v.  Hale,  C.  C.  A.,  117  Fed. 
220;  certiorari  denied  188  U.  S. 
739,  47  L.  ed.  677;  Edwards  v.  Na- 
tional Window  Glass  Jobbers  Ass'n, 
139  1-Vd.  795;  Covell  v.  Fouler.  144 
Fed.  535.  It  has  been  held:  that 
this  rule  applies  to  a  receiver  ap- 
pointed by  a  United  States  court  of 


362 


CAPACITY  TO  SUE. 


[§  93 


name  of  the  corporation  itself.2  A  receiver  can  never  sue  in 
a  foreign  court,  to  enforce  a  cause  of  action,  upon  which  he 
could  not  sue  in  the  courts  of  the  State  where  he  was  appointed.3 
Tt  has  been  said :  that  a  defendant  to  the  suit,  in  which  the 
foreign  receiver  was  appointed,  cannot,  if  he  has  been  duly 
served  with  process,  dispute  the  authority  of  the  receiver  to  sue 
in  a  foreign  court,  at  least  where  the  judgment  appointing  the 
receiver  expressly  authorized  him  to  sue  in  such  foreign  court.4 
The  fact  that  the  court,  which  appointed  the  receive]-,  gave  him 
leave  to  sue  in  another  district,  does  not  authorize  him  there 
to  sue  without  an  ancillary  appointment.6  It  hns  been  held 
that  a  foreign  receiver  cannot  obviate  this  objection  by  bring- 
ing a  suit  in  the  name  of  the  corporation.6  Tt  has  been  said: 
that  when  the  foreign  receiver  is  the  statutory  successor  of  a 
corporation,  he  can  sue  in  a  foreign  court  without  an  ancillary 
appointment.7  Tie  can  also  do  so  when  he  has  received  a  volun- 
tary assignment  of  the  assets  of  the  insolvent ; 8  and  where  the 
statute  vests  in  him  the  right  to  sue  for  and  collect  an  assess- 
ment upon  the  stockholders,  he  is  a  quasi  assignee  and  can 
maintain  such  suit  in  another  jurisdiction;9  but  it  has  been 
held  that  where  he  has  recovered  a  judgment  in  another  juris- 


bankruptcy.     Tn   Re  National   Mer- 
cantile Agency,  128   Fed.   639. 

2  Great  Western  Mining  &  Mfg. 
Co.  v.  Harris,  198  U.  S.  561,  49  L. 
ed.  1163.  See,  however,  Great  West- 
ern Telegraph  Co.  v.  Purdy,  162  U. 
S.  329,  40  L.  ed.  98G. 

3  Hale  v.  Allinson,  188  U.  S.  56, 
47  L.  ed.  380. 

4  Burr  v.  Smith,  113  Fed.  858. 

5  Fowler  v.  Osgood,  4  L.R.A. 
(N.S.)    824,  141   Fed.  20. 

6  Great  Western  Min.  &  Mfg.  Co. 
v.  Harris.  198  V.  S.  561,  25  Sup.  Ct. 
770.  4!)  L.  ed.  1163;  Fairview  Fluor 
Spar  &  Lead  Co.  v.  Finch.  C.  C.  A., 
!92     \-\>d.     894:     Strout    v.     United 

.Shoe   Machinery   Co..   195   Fed.   313. 
See  infra,  §§  304,  311. 

fRelfe  v.  Rundle,  103  U.  S.  222. 
26  L.  ed.  337  (where  the  statute  up- 
on  the   dissolution   of   an    insurance 


company  vested  its  assets  in  the  su- 
perintendent of  the  insurance  de- 
partment and  the  latter  was  allowed 
to  sue  in  a  foreign  jurisdiction)  ; 
Bernheimer  v.  Converse,  206  U.  S. 
516;  Avery  v.  Boston  Safe  Deposit 
&  Trust  Co.,  72  Fed.  700;  Rogers  v. 
Riley,  80  Fed.  759;  Hale  v.  Hardon, 
89  Fed.  283,  287;  Hale  v.  Coffin,  114 
Fed.  567.  But  see  Hale  v.  Allinson, 
188  U.  S.  56,  69,  47  L.  ed.  380.  389. 

8  Hawkins  v.  Glenn,  131  V.  S. 
319,  33  L.  ed.  184;  Lewis  v.  Clark. 
C.  C.  A.,  129  Fed.  570;  (where  the 
assignment  was  made  by  a  foreign 
receiver  to  a  receiver  appointed  in 
another  State,  who  was  allowed  to 
sue  in  a  third  State). 

9  Converse  v.  Hamilton.  224  V.  S. 
243,  56  L.  ed.  749:  Irvine  v.  Put- 
nam, 190  Fed.  321. 


§  95] 


UNITED  STATES    DEFENDANT. 


363 


diction,  he  cannot  sue  to  recover  equitable  assets  until  he  has 
obtained  a  judgment  in  the  State  where  they  are  situated;10 
even  though  he  shows  that  the  debtor  has  no  other  property. 
A  receiver,  appointed  by  a  Federal  court,  can  sue  in  the  courts 
of  the  State  where  the  Federal  district  is  located.11  It  seems 
that  a  receiver,  appointed  by  a  State  court,  can  sue  in  the 
Federal  court  in  the  same  district.12 

§  94.  Who  may  be  defendants.  All  persons  may  be  made 
defendants,  except  the  United  States,  without  their  consent,1 
or  a  Territory  thereof;2  foreign  States  and  sovereigns  for  acts 
done  in  a  political  capacity;3  "one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  State ;" 4  receivers  appointed  by  State  courts  without 
the  leave  of  such  courts;5  and  foreign  executors  and  adminis- 
trators,6 unless  they  have  assets  within  the  jurisdiction  of  the 
court  where  the  bill  is  filed,7  in  which  case  they  are  liable,  as 
trustees,  to  account  for  the  same,  to  those  entitled  thereto.8 
Whether  a  suit  can  be  brought  against  the  President  of  the 
United  States  is  undecided.9 

§  95.  The  United  States  as  a  defendant.  In  general. 
The  United  States  cannot  be  sued  in  any  court  without  their 


10  Trotter  v.  Lisman,  199  N.  Y. 
497. 

11  Grant  v.  Buckner,  172  U.  S. 
232,  238,  43  L.  cd.  430. 

12  Porter  v.  Sabin,  149  U.  8.  473, 
37  L.  cd.  81.5. 

§  94.  lCarr  v.  U.  S.,  98  U.  S. 
433.  25  L.  ed.  '209;  Kansas  v.  U.  S., 
204  U.  S.  331,  51  L.  ed.  510.  infra, 
§§    94-97. 

2  Kawananakoa  v.  Polyblank,  205 
U.  S.  349.  51    L.  ed.  834. 

3  Duke  of  Brunswick  v.  King  of 
Hanover,  6  Beav.  1  ;  Hullett  v.  King 
of  Spain.  2  Bligh  N.  R.  31. 

4  Eleventh  Amendment  to  Consti- 
tution. 

5  Barton  v.  Barbour.  104  U.  S. 
126,  26  L.  ed.  072:  Thompson  v. 
Scott,   4   Dill.   508;    Express   Co.   v. 


Kailroad  Co..  99  U.  S.  191,  25  L.  ed. 
319.     See  §  314,  infra. 

6  Vaughn  v.  Xorthrup,  15  Pet.  1, 
10  L.  ed.  639;  Courtney  v.  Pradt, 
196  U.  S.  89,  49  L.  ed.*398:  s.  c, 
135  Eed.  818;  Lewis  v.  Parrish,  C. 
C.  A.,  115  Eed.  2S5:  Skiff  v.  White, 
127  Eed.  175;  Story's  Eq.  PL,  §  179, 
infra,  §  311. 

7  Sandilands  v.  Inness,  3  Sim. 
363;  McNamara  v.  Dv.yer.  7  Paige 
(X.  Y.)  239.  32  Am!  Dec.  627: 
Campbell  v.  Tousey,  7  Cow.  (X.  Y.) 
64,  infra,  §  311. 

8  Lewis  v.  Parrish.  C.  C.  A.,  115 
Fed.  285.  infra,  §  311. 

9  See  Mississippi  v.  Johnson.  4 
Wall.  475,  18  L.  ed.  437:  People  ex 
rel.  Broderick  v.  White.  156  X.  Y. 
136,  4  L.R.A.  231.  66  Am.  St.  Rep, 
547,  and  cases  cited. 


364 


LIABILITY  TO  SUIT. 


[§  95 


consent.1  A  Territory  of  the  United  States,  such  as  the  Terri- 
tory of  Hawaii,  has  the  same  immunity.8  The  District  of 
Columbia  has  not.3  Neither  has  the  city  of  Manila  in  the 
Philippines.4  Even  if  there  is  no  remedy  adequate  to  the 
collection  of  a  claim  against  a  municipality  when  reduced  to 
judgment,  a  plaintiff  having  a  valid  claim  is  entitled  to  main- 
tain an  action  thereupon  and  to  reduce  the  same  to  judgment 
against  it.5 

The   United    States   may   waive   their  exemption   from   suit 
by  statute,6  but  not  bv  the  act  of  any  of  their  officers.7    A  Terri- 


§  95.     iCarr  v.   U.  S.,  98  U.  S. 
433,  25  L.  ed.  209;  Kansas  v.  U.  S.,, 
204  IT.  S.  331.  51    L.  ed.  510. 

2  Kawananakoa  v.  Polyblank,  205 
U.  S.  349.  51  L.  ed.  834. 

3  Metropolitan  R.  R.  Co.  v.  Dis- 
trict of  Columbia,  132  U.  S.  1,  33 
L.   ed.   231. 

4  Vilas  v.  City  of  Manila.  220  U. 
S.   345.   55  L.  ed.  491. 

5  Mount  Pleasant  v.  Beckwith,  100 
IT.  S.  514,  530.  25  L.  ed.  699,  703; 
Vilas  v.  City  of  Manila,  220  I".  S. 
345,352,  55  L.  ed.  491,  494.  It  has 
been  held  that  the  National  Home 
for  Disabled  Volunteer  Soldiers,  in 
Tennessee,  a  charitable  institution 
engaged  as  an  agency  of  the  Federal 
Government  in  the  discharge  of  a 
govermental  function,  is  not  subject 
to  an  action  sounding  in  tort  to  re- 
cover damages  for  the  negligence  of 
its  officers  in  diverting  and  pollut- 
ing the  waters  of  plaintiff's  spring; 
since  the  power  '"to  sue  and  to  be 
sued  at  law  and  in  equity,"  con- 
ferred on  the  corporation  by  its 
.barter  (  U.  S.  R.  S.,  §  4825,  Comp. 
St.  1901.  p.  3337),  is  limited  to 
matters  within  the  scope  of  the  oth- 
er corporate  powers  with  which  it  is 
vested.  Lyle  v.  National  Home  for 
Disabled  Volunteer  Soldiers.  170 
Fed.  842. 

6  U.  S.  v.  Clarke.  8  Pet.  436.  8  L. 


ed  1001;  The  Siren,  7  Wall.  152, 
19  L.  ed.  129;  Kawananakoa  v. 
Polyblank.  205  U.  S.  349,  353,  51  L. 
ed.  834.  836;  per  Holmes,  J.:  "Some 
doubts  have  been  expressed  as  to 
the  source  of  the  immunity  of  a 
sovereign  power  from  suit  without 
its  own  permission,  but  the  answer 
has  been  public  property  since  be- 
fore the  days  of  Hobbes.  (Levia- 
than, c.  26,  2.)  A  sovereign  is  ex- 
empt from  suit,  not  because  of  any 
formal  conception  or  obsolete  theo- 
ry, but  on  the  logical  and  practical 
ground  that  there  can  be  no  legal 
right  as  against  the  authority  that 
makes  the  law  on  which  the  right 
depends.  'Car  on  pent  bien  reerrnir 
loy  d'autruy,  mats  il  est  impossible 
par  nature  de  se  don  tier  loy.'  Bodin, 
Republique,  1,  c.  8.  Ed.  1629.  p.  132. 
Sir  John  Eliot,  De  Jure  Maiestatis, 
c.  3.  "Nemo  suo  statuto  ligatur  nec- 
essitative.  Baldus.,  De  Ley.  et 
Const..  Digna  Vox  (2d  ed.,  1496,  fol. 
51b.  Ed.  1539,  fol.  61).  As  the 
ground  is  thus  logical  and  practical, 
the  doctrine  is  not  confined  to  pow- 
ers that  are  sovereign  in  the  full 
sense  of  juridical  theory,  but  natur- 
ally is  extended  to  those  that  in  ac- 
tual administration  originate  and 
change  at  their  will  the  law  of  con- 
tract and  property,  from  which  per- 
sons within   the   jurisdiction  derive 


§  05] 


UNITED  STATES  DEFENDANT. 


365 


tory  waives  exemption  by  failing  to  object  to  the  jurisdiction.8 
When  the  United  States  institute  a  suit,  thev  waive  their 
exemption  so  far  as  to  allow  a  presentation  by  the  defendant 
of  any  set-off,  legal  and  equitable,  to  the  extent  of  the  demand 
made  or  property  claimed.9  No  affirmative  judgment  can  be 
entered  by  the  defendant,  upon  his  set  off  or  counterclaim.10 

The  Revised  Statutes  provide:  "In  suits  brought  by  the 
United  States  against  individuals,  no  claim  for  a  credit  shall 
be  admitted,  upon  trial,  except  such  as  appear  to  have  been 
presented  to  the  accounting  officers  of  the  Treasury,  for  their 
examination,  and  to  have  been  by  them  disallowed,  in  whole 
or  in  part,  unless  it  is  proved  to  the  satisfaction  of  the  court 
that  the  defendant  is,  at  the  time  of  the  trial,  in  possession  of 
vouchers  not  before  in  his  power  to  procure,  and  that  he  was 
prevented  from  exhibiting  a  claim  for  such  credit  at  the 
Treasury  by  absence  from  the  United  States  or  by  some  un- 
avoidable accident."11  It  has  been  held  that  this  applies  to 
all  counterclaims  against  the  United  States.12  When  the 
United  States  proceed  in  rem,  they  open  to  consideration  all 
claims  and  equities  in  regard  to  the  property  libeled.13  Where 
property  of  the  United  States  is  involved  in  a  litigation  to 
which  they  are  not  technically  parties,  the  attorney  for  the 
district  where  the  suit  is  brought  may  intervene  by  way  of 
suggestion ;  and  in  such  a  case  the  court  will  either  stay  the 
suit  or  adjust  its  judgment  according  to  the  rights  disclosed 


their  rights.  A  suit  presupposes 
that  the  defendants  are  subject  to 
the  law  invoked.  Of  course  it  can- 
not be  maintained  unless  they  are 
so." 

7(arr  v.  U.  S.,  98  U.  S.  433,  25 
L.  ed.  209. 

8  Kawananakoa  v.  Polyblank,  205 
U.  S.  349,  353,  51  L.  ed.  834,  836. 

9  Reeside  v.  Walker,  11  How.  272, 
13  L.  ed.  693;  U.  S.  v.  Kerr,  196 
Fed.   503. 

10  Reeside  v.  Walker,  1 1  How.  272, 
13  L.  ed.  693;  New  York  v.  Denni- 
son,   84   N.   Y.   272. 

11 U.  S.  R.  S..  §  951. 

12  U.  S.  v.  Kerr,  196  Fed.  503. 


13  Mr.  Justice  Field  in  The  Siren, 
7  Wall.  152,  154;  Walker  v.  U.  S., 
139  Fed.  409.  A  more  liberal  rule 
against  the  government  is  sug- 
gested in  Fifth  Xat.  Bank  v.  Long, 
7  Biss.  502;  Elliot  v.  Van  Voorst, 
3  Wall.  Jr.  299;  Briggs  v.  The 
Light  Boats,  11  Allen  (Mass.), 
157;  Stanley  v.  Schwalby.  162  U.  S. 
255,  272.  In  U.  S.  v.  Ansonia  Brass 
&  Copper  Co.,  218  U.  S.  452.  it  was 
held  that  certain  stipulations  made 
by  a  District  Attorney  of  the  United 
States,  in  order  to  obtain  possession 
of  vessels  seized  by  judicial  proceed- 
ings while  in  the  course  of  construc- 
tion, should  not  be  construed  as  de- 


o66  LIABILITY  TO  SLIT.  [§96 

on  the  part  of  the  government ;  H  but  no  judgment  can  then  be 
entered  against  the  United  States  for  costs  or  divest  them  of 
their  title  to  property.15 

§  96.  Liability  of  the  United  States  and  officers  thereof 
to  suits  for  the  recovery  of  money.  The  Judicial  Code 
provides :  District  Courts  of  the  United  States  shall  have 
jurisdiction,  ''Concurrent  with  the  Court  of  Claims,  of  all 
claims  not  exceeding  ten  thousand  dollars  founded  upon  the 
Constitution  of  the  United  States  or  any  law  of  Congress,  or 
upon  any  regulation  of  an  Executive  Department,  or  upon  any 
contract,  express  or  implied,  with  the  Government  of  the 
UniWl  States,  or  for  damages,  liquidated  or  unliquidated,  in 
cases  not  sounding  in  tort,  in  respect  to  which  claims  the  party 
would  be  entitled  to  redress  against  the  United  States,  either 
in  a  court  of  law,  equity,  or  admiralty,  if  the  United  States 
were  suable,  and  of  all  set-offs,  counterclaims,  claims  for  dam- 
ages, whether  liquidated  or  unliquidated,  or  other  demands 
whatsoever  on  the  part  of  the  Government  of  the  United  States 
against  any  claimant  against  the  Government  in  said  court : 
Provided,  however,  That  nothing  in  this  paragraph  shall  be 
construed  as  giving  to  either  the  district  courts  or  the  Court  of 
Claims  jurisdiction  to  hear  and  determine  claims  growing 
out  of  the  late  Civil  War,  and  commonly  known  as  'war 
claims,'  or  to  hear  and  determine  other  claims  which  had  been 
rejected  or  reported  on  adversely  prior  to  the  third  day  of 
March,  eighteen  hundred  and  eighty-seven,  by  any  court,  de- 
partment, or  commission  authorized  to  hear  and  determine  the 
same,  or  to  hear  and  determine  claims  for  pensions;  or  as  giv- 
ing to  the  district  courts  jurisdiction  of  cases  brought  to  recover 
fees,  salary,  or  compensation  for  official  services  of  officers  of 
the  United  States  or  brought  for  such  purpose  by  persons  claim- 
ing as  such  officers  or  as  assignees  or  legal  representatives  there- 
of; but  no  suit  pending  on  the  twenty-seventh  day  of  June, 
eighteen  hundred  and  ninety-eight,  shall  abate  or  be  affected 
by  this  provision:    And  provided  further,  That  no  suit  against 

priving     the     Government     of     any  llii.      147.        But     see     Stanley     v. 

lights  asserted  under  the  contracts  Schwalby,  1(52  U.  S.  255. 

for  such  construction.  15  Stanley  v.  Schwalby,  162  U.  S. 

14  Stanley  v.  Schwalby,  147  U.  S.  255,  272.     Infra,  §  105. 
50S,  513;   The,  Exchange,  7  Cranch, 


§  96]  UNITED  STATES  DEFENDANT.  307 

the  Government  of  the  United  States  shall  be  allowed  under 
this  pragraph  unless  the  same  shall  have  been  brought  within 
six  years  after  the  right  accrued  for  which  the  claim  is  made: 
Provided,  That  the  claims  of  married  women,  first  accrued 
during  marriage,  of  persons  under  the  age  of  twenty-one  years, 
first  accrued  during  minority,  and  of  idiots,  lunatics,  insane 
persons,  and  persons  beyond  the  seas  at  the  time  the  claim 
accrued,  entitled  to  the  claim,  shall  not  be  barred  if  the  suit  be 
brought  within  three  years  after  the  disability  has  ceased;  but 
no  other  disability  than  those  enumerated  shall  prevent  any 
claim  from  being  barred,  nor  shall  any  of  the  said  disabilities 
operate  cumulatively.  All  suits  brought  and  tried  under  the 
provisions  of  this  paragraph  shall  be  tried  by  the  court  without 
a  jury."1  This  withholds  from  the  District  Courts  jurisdic- 
tion over  all  claims  against  the  United  States  which  exceed  ten 
thousand  dollars  and  all  cases  brought  to  recover  fees,  salary 
or  compensation  for  the  services  of  officers.  In  such  cases,  suit 
must  be  brought  in  the  Court  of  Claims;2  but  it  has  been  held 
that  the  District  Courts  have  jurisdiction  of  suits  to  recover  dis- 
bursements made  by  marshals  in  payment  of  the  services  of 
court  bailiffs.3  Actions  for  similar  causes  may  be  brought  in 
the  District  Court  of  the  United  States  for  Porto 
Rico.4  It  is  doubtful  whether  an  alien  corporation 
can  maintain  such  a  suit  in  any  court.5  It  has  been 
said:  that  the  words  "in  cases  not  sounding  in  tort"  limit 
only  the  last  part  of  the  clause,  and  do  not  affect  claims  founded 
upon  the  Constitution  of  the  United  States  or  a  law  of  Con- 
gress.6 It  has  been  held:  that  an  action  will  lie  against  the 
United  States  for  the  recovery  of  duties  illegally  exacted  upon 
merchandise,  which  is  alleged  not  to  have  been  imported  from 
a  foreign  country,  when  the  construction  of  the  Constitution  of 

§  9G.     1  30   St.   at  L.   1087,  §   24,  3  U.  S.  v.  Swift,  C.  C.  A.,  139  Fed. 

subd.  twentieth.    Tliis  is  practically  225. 

a    re-enactment    of    the    Tucker    act,  4  Hijo  v.  U.  S.,  194  U.  S.  31.1,  48 

passed     in     1887,     as     subsequently  L.  ed.  994. 

amended  24  St.  at  L.  505,  30  St.  at  5  Hijo  v.  U.  S.,   104  U.  S.  315,  48 

L.  494.  L.  ed.  994. 

ilnfra,     Chapter     on     Court     of  BDooley  v.  U.  S..   1S2  U.  S.  222, 

Claims.  45  L.  ed.   1074;   C.  S.  v.  Lynah,  188 

U.   S.  445,   475,  47   L.  ed.   539.   550. 


3G3  LIABILITY  TO  SUIT.  [§    96 

the  United  States7  or  of  an  act  of  Congress,8  was  involved;  to 
recover  revenue  taxes  illegally  exacted  and  paid  under  protest, 
when  the  payment  was  necessary  to  avoid  stopping  the  business 
in  which  the  plaintiff  was  engaged,9  and  fines  illegally  imposed, 
the  non-payment  of  which  would  have  prevented  the  clearance 
of  vessels  carrying  the  mails.10  In  such  a  case,  the  collector,11 
or  a  commissioner  of  internal  revenue,12  or  other  officer  who 
has  compelled  the  unlawful  payment,  may  be  sued  personally, 
as  well  as  the  United  States.13  It  has  been  held  that  an  appeal 
to  the  Commissioner  of  Internal  Revenue  is  not  a  prerequisite 
to  an  action  against  the'  collector.14  The  Act  to  simplify  the 
laws  in  relation  to  the  collection  of  the  revenues  provides: 
"That  from  and  after  the  taking  effect  of  this  Act,  no  col- 
lector or  other  officer  of  the  customs  shall  be  in  any  way  liable 
to  any  owner,  importer,  consignee,  or  agent  of  any  merchan- 
dise, or  any  other  person,  for  or  on  account  of  any  rulings  or 
decisions  as  to  the  classification  of  said  merchandise  or  the 
duties  charged  thereon,  or  the  collection  of  any  dues,  charges, 
or  duties  on  or  on  acount  of  said  merchandise,  or  any  other 
matter  or  thing  as  to  which  said  owner,  importer,  consignee, 
or  agent  of  such  merchandise  might,  under  this  Act,  be  en- 
titled to  appeal  from  the  decision  of  said  collector  or  other 
officer,  or  from  any  board  of  appraisers  provided  for  in  this 
Act."  15  The  same  statute  directs  the  Secretary  of  the  Treas- 
ury to  refund  and  pay,  out  of  any  money  in  the  treasury  not 
otherwise  appropriated,  all  moneys  that  are  shown  to  his  satis- 
faction to  have  been  paid  to  or  deposited  with  a  collector  of 
customs  in  any  case  of  unascertained  or  estimated  duties.        In 

fDooley  v.  U.  S.,  182  U.  S.  222,  "  De  Lima  v.  Bidwell,  182  U.  S. 

45  L.  ed.   1074.  1,  45  L.  ed.  1041. 

8  Lincoln  v.  U.  S.,  197  U.  S.  419,  12  Ewers  v.  Weaver,  182  Fed.  713. 
49  L.  ed.  810.  13  Emery,  Bird,  Thayer  Realty  Co. 

9  Swift  Co.  v.  U.  S.,  HI  U.  S.  22,  v.  U.  S.,  198  Fed.  242. 

28  L.  ed.  341;   Christie  Street  Com-  14  Ewers  v.  Weaver,  182  Fed.  713. 

mission  Co.  v.  U.  S.,  C.  C.  A.,   130  15  Act  of  June  10,   1890,  §  24,  as 

Fed.    32G;    reversing    129    Fed.    506.       amended  Aug.  5.  1909,  30  St.  at  L. 
See  N.  Y.  Consol.  Card  Co.  v.  U.  S.,       11.  Pierce's  Fed.  Code,  *§  1032. 
20  Ct.  CI.  174.  is  Ibid.,  §  23. 

10  Oceanic  Steam  Navigation  Co. 
v.  Stranahun,  214  U.  S.  320,  329.  53 
L.  ed.  1013,  1018. 


{<    90]  UNITED  STATES    DEFENDANT.  369 

case  of  his  failure  so  to  do,  an  action  might  lie  against  the 
United  States  to  recover  the  same.  It  seems  that  a  suit  will 
lie  against  the  United  States  to  recover  excess  postage  paid 
under  protest.17  It  has  been  suggested  that  an  action  might  lie 
against  the  postmaster  under  the  same  circumstances.18  Suits 
cannot  be  brought  against  the  United  States  to  recover  taxes 
paid  voluntarily  without  any  contemporary  protest  or  notice 
of  objection,19  nor  money  paid  for  the  purchase  of  revenue 
stamps  under  similar  circumstances.20  Neither  a  statute  im- 
posing a  tax,  nor  execution  thereunder,  nor  a  mere  demand  for 
payment,  constitutes  duress;  but  where  the  statute  contains 
self-operating  provisions,  by  which  non-payment  of  the  tax  re- 
sults in  heavy  penalties  and  a  forfeiture  of  the  right  to  do  busi- 
ness, payment  by  one  within  the  class  affected  is  not  volun- 
tary, but  compulsory.21  In  such  a  case,  payment  by  one  not  in- 
cluded in  such  class  is  not  made  under  duress.22  The  refusal, 
by  a  recorder,  to  accept  a  deed  without  the  revenue  stamps,23 
and  the  refusal  of  the  collector  to  give  to  a  ship  a  clearance 
without  such  stamps;24  do  not  constitute  such  duress  as  will 
authorize  a  suit  to  recover  the  taxes,  when  there  was  no  con- 
temporary protest  or  notice,  although  the  statute  made  the 
omission  of  the  stamps  a  misdemeanor.25  A  subsequent  appli- 
cation to  the  internal  revenue  commissioner  for  a  return  of 
the  money  paid  for  stamps  is  not  equivalent  to  a  contemporary 
protest  or  notice.26  The  payment  of  an  inheritance  tax  under 
protest,  after  a  threat  by  the  collector  that,  unless  promptly 
paid,  it  would  be  collected  with  a  penalty  and  interest  of  one 
per  cent  a  month,  was  held  to  be  involuntary  and  to  justify 
a   suit  against  the   internal    revenue   collector   to   recover  the 

17  Lewis   Pub.   Co.   v.   Wyman,    C.  20  ibid. 

C.  A.,  182  Fed.  13,  17,  18.  21  Qaar,  Scott  &  Co.  v.  Shannon, 

18  Jbid.  223  U.  S.  468,  56  L.  ed.  510. 

19  Chesebrough    v.    U.    S.,    192   U.  22  ibid. 

S.  253.  48  L.  ed.  432;  U.  S.  v.  New  23  Chesebrough  v.  U.  S.,  192  U.  S. 

York  &  Cuba  Mail  S.  S.  Co.,  200  U.  253,  48  L.  ed.  432. 

S.  488,  50  L.  ed.  560.     Rut  it  seems  24  u.  S.  v.  N.  Y.  &  Cuba  Mail  S. 

that    where    one    proL   t    has    been  S.  Co..  200  U.  S.  488,  50  L.  ed.  569. 

duly      made,      subsequent      protests  25  Cheseb rough  v.  U.  S.,  192  U.  S. 

against    similar    exactions    are    not  253.  48  L.  ed.  432. 

necessary.     Johnson   v.   Herolcl,   161  26  ITerold   v.  Kahn,   C.   C.  A.,   159 

Fed.  593.  Fed.    608. 
Fed.   Prac.  Vol.  I.— 24. 


:;7o 


LIABILITY   TO  SUIT. 


[§  96 


same.27  Such  has  been  held  to  be  the  payment  of  an  illegal  tax 
upon  land  for  the  purpose  of  obtaining  possession  of  the 
same.28  Suits  may  be  brought  against  the  United  States  to  re- 
cover money  paid  under  the  void  judgment  of  a  military  com- 
mission,29 or  a  fine  illegally  imposed  by  a  provisional  court,30 
to  recover  taxes  which  a  statute  has  directed  the  Secretary  of 
the  Treasury  to  refund.31  Suits  may  be  brought  to  recover 
money  paid  to  a  public  officer  under  a  mutual  mistake  of 
fact,32  but  not  money  paid  under  a  mutual  mistake  of  law ; 33 
to  recover  the  purchase  price  paid  upon  void  entries  of  pub- 
lic land ; 34  to  recover  money  paid  a  land  officer  as  part  pay- 
ment for  a  certificate  of  entry  which  he  refuses  to  deliver,  the 
consideration  for  the  payment  thus  failing ; 35  to  recover  money 
of  the  claimant  received  by  the  United  States  for  other  pur- 
poses, and  appropriated  by  them  for  the  payment  of  an  illegal 
tax ; 36  to  recover  money  of  the  claimant  obtained  and  paid  into 
the  Treasury  by  a  fraud  perpetrated  by  an  officer  of  the  United 
States;37  to  recover  the  value  of  property  delivered  in  pur- 
suance of  an  express  contract  which  is  void;38  to  recover  the 
damage  to  property  leased  by  the  government  and  injured  by 
the  want  of  reasonable  care'  while  in  its  possession ; 39  to  recover 
for  salvage  services,40  including  maritime  services  in  saving 
property,  upon  which  duties  had  been  paid  that  the  govern- 
ment might  otherwise  have  been  obliged  to  refund,41  and  for 


27  Simons  v.  U.  S.,  19  Ct.  CI.  G01. 

28  Devlin  v.  U.  S.,  12  Ct.  CI.  2G6. 
But  see  Carver  v.  U.  S.,  Ill  U.  S. 
009.  28  L.  ed.  540. 

29  Basso's  Case,  40  Ct.  CI.  202. 

30  U.  S.  v.  Shipley,  C.  C.  A.,  197 
Fed.  2G5. 

31  Nelson  v.  U.  S.,  35  Ct.  CI.  427; 
Ingram   v.   U.    S.,   32    Ct.    CI.    147; 

32  U.  S.  v.  Edmonston,  181  U.  S. 
500.  45  L.  ed.  971;  U.  S.  v.  Wilson, 
168  U:  S.  273,  42  L.  ed.  404:  U.  S. 
v.  Lawson,  101  U.  S.  1G4,  25  L.  ed. 
800. 

33  Emmons  v.  U.  S.  42  Fed.  2G. 

34  Slocum  v.  U.  S..  35  Ct.  CI.  485; 


Anthracite   Mesa   Coal   Min.   Co.   v. 
U.  S.,  38  Ct.  CI.  56,  63. 

35  Johnston  v.  U.  S„  17  Ct.  CI. 
157. 

36  U.  S.  v.  State  Bank,  96  U.  S. 
30,  24  L.  ed.  647. 

37TIeathlield  v.  U.  S.,  8  Ct.  CI. 
213. 

38  U.  S.  v.  Bostwiek.  94  U.  S.  53, 
24  L.  ed.  65. 

39  Bryan  v.  U.  S.,  6  Ct.  CI.  128; 
McGowan  v.  U.  S.,  20  Ct.  CI.  147. 

40  U.  S.  v.  C  rnell  Steamhoat  Co.. 
202  U.  S.  184.  50  L.  ed.  987;  affirm- 
ing, C.  C.  A.,  137  Fed.  455. 

41  Brown  v.  U.  S..  15  Ct.  CI.  392. 


§  fJ6] 


UNITED  STATES  DEFENDANT. 


371 


the  share  of  general  average  reasonably  due;42  by  a  Contractor 
for  extra  work  clone  by  him  under  the  direction  of  a  government 
agent  authorized  to  order  the  same,  and  for  damages  for  an  im- 
proper interference  by  such  agent  with  the  fulfillment  of  the 
contract.43  When  the  government  of  the  United  States,  by  such 
formal  proceedings  as  are  necessary  to  bind  the  same,  takes  for 
public  use  land  to  which  it  asserts  no  claim  or  title,  but  admits 
the  ownership  to  be  private  or  individual,  there  arises  an  im- 
plied obligation  to  pay  the  owner  its  true  value,44  unless  Con- 
gress has  provided  for  the  payment  of  the  same,  in  which  case 
no  more  -can  be  recovered,  although  the  owner  has  protested.45 
Tt  has  been  held :  that  an  action  will  lie  to  recover  damages  to 
land,  to  which  the  Government  obtains  no  title,  if  the  same  is 
permanently  flooded  by  a  work,  such  as  a  dam,  built  on  ad- 
joining land  under  the  direction  of  an  Act  of  Congress ; 46  and 
that  where  the  Government  has  agreed  to  furnish  a  coffer  dam 
to  a  contractor  for  the  construction  of  a  public  work,  it  is 
liable  for  damage  caused  by  negligence  in  the  construction  of 
the  dam.  although  there  Avas  no  stipulation  in  the  contract  to 
the  effect;47  but  that  it  is  not  liable  for  damages  caused  by 
temporarv  floods  to  land  which  was  previously  subject  to  over- 
flow in  time  of  freshets,  although  increased  by  a  Government 
dam  on  adjacent  land,48  or  by  revetments  erected  by  the  Govern- 
ment along  the  banks  of  a  river  to  prevent  erosion  from  natural 
causes.49     When  damages  for  the  flooding  of  land  are  allowed ; 


42  Bowe  v.  U.  S.,  42  Fed.  76]. 

43B0\ve  v.   U.   S.,   42   Fed.   761. 

44Langford  v.  U.  S.,  101  U.  S. 
341,  25  L.  ed.  1010.  See  Hill  v.  U. 
S..  149  U.  S.  593,  37  L.  ed.  862;  Great, 
Falls  Mfg.  Co.  v.  Att'y  Gen.,  124 
U.  S.  581.  31  L.  ed.  527;  U.  S.  v. 
Russell,  13  Wall.  623.  20  L.  ed.  474; 
Grant  v.  U.  S..  1  Ct.  CI.  41  ;  Hollis- 
ter  v.  Benedict  &  B.  Mfg.  Co.,  113 
U.  S.  59,  67.  28  L.  ed.  901,  903; 
Mills  v.  U.  S..  19  Ct.  CI.  79:  Kettler 
v.  U.  S..  21  Ct.  CI.  175:  Alexander's 
Case,  39  Ct.  CI.  383  (land  used  for 
a  camp)  ;  Philippine  Sugar  Estates 
Development  Co.  v.  U.  S.  40  Ct.  CI. 
33. 


45  Hooe  v.  U.  S.,  218  U.  S.  322,  54 
L.  ed.  1055. 

46  U.  S.  v.  Lynah,  188  U.  S.  445, 

47  L.  ed.  539;  U.  S.  v.  Welch,  217 
U.  S.  333;  U.  S.  v.  Grizzard,  219  U. 
S.  180,  55  L.  ed.  165,  31  L.B.A. 
(N.S.)    1135. 

47  Collins   &   Farwell   v.   U.   S..   34 
Ct.    CI.    294. 

48  Coleman  v.  U.  Si,  181   Fed.  599. 

49  Bedford  v.  U.  S.,  192  U.  S.  217, 

48  L.  ed.  414.  See  Manigault  v. 
Spring-.  199  U.  S.  473.  485.  50  L. 
ed  274,  280;  Mills  v.  U.  S.,  46  Fed. 
738. 


372 


LIABILITY  TO  SUIT. 


[§  96 


they  include  the  value  of  a  private  right  of  way  to  other  land 
of  .plaintiffs,  which  is  thus  destroyed,50  and  the  loss  and  ease- 
ment of  access  from  other  land  of  the  plaintiff  to  a  public 
road.51  Whenever  there  has  been  an  actual  physical  taking  of 
part  of  a  distinct  tract  of  land,  the  compensation  to  be  awarded 
includes  not  only  the  market  value  of  so  much  as  is  actually 
appropriated,  but  also  the  damage  to  the  remainder  which 
therefrom  results,  including  injury  due  to  the  probable  use  to 
which  the  part  appropriated  is  to  be  devoted  by  the  Govern- 
ment;52 but  damage  resulting  to  adjacent  but  distinct  parcels 
of  land  has  been  admitted.53  In  a  proceeding  to  condemn  the 
locks  and  dams  of  a  corporation,  the  value  of  the  franchise  to 
take  tolls  for  their  use  must  be  included  in  the  compensation.54 
Before  the  Tucker  act,  it  was  held:  that,  when  the  United 
States  takes  possession  of  property,  asserting  a  title  hostile  to 
that  of  the  true  owner,  such  owner  cannot  recover,  in  a  suit 
in  any  court,  the  reasonable  value  of  its  use,  or  the  reason- 
able value  of  the  fee  of  the  same.55  Whether  the  Tucker  act 
has  changed  this  rule  has  not  yet  been  authoritatively  decided.56 
When  the  claim  is  not  based  upon  the  Constitution,  or  a  law 
of  the  United  States,  or  a  department  regulation,  it  must  "be 
founded  on  a  convention  between  the  parties,  a  coming  to- 
gether of  minds."  57    It  has  been  said  that  to  constitute  an  im- 


50  U.  S.  v.  Welch,  217  U.  S.  333, 
54  L.  ed.  787,  28  L.R.A.(N.S.)  385, 
10  Ann.  Cas.  G80. 

51  U.  S.  v.  Grizzafd,  219  U.  S.  180, 

00  L.  ed.  165,  31  L.R.A.(N.S.)   1135. 

52  u.  S.  v.  Grizzard,  219  U.  S. 
ISO.  55  L.  ed.  165,  31  L.R.A.(N.S.) 
1135.  See  Sharp  v.  U.  S.,  191  U.  S. 
341.  . 

53  Sharp  v.  U.  S.,  191  U.  S.  341, 
353,  48  L.  ed.  211,  215. 

54  Monongahela  Navigation  Co.  v. 

1  .  S.,  148  U.  S.  312,  315,  37  L.  ed. 
463,  464. 

55Langford  v.  U.  S.,  101  U.  S. 
341.  25   L.  ed.   1010. 

56  U.  S.  v.  Lynah,  188  U.  S.  44."), 
474,  47  L.  ed.  539,  550;  wliere 
Brown,  J.,  with  the  concurrence  of 
Shiras  and  Peckham,  JJ.,  expressed 


the  opinion:  that  a  case  of  trespass 
upon  real  estate  by  the  government, 
was  a  taking  of  property  within  the 
meaning  of  the  Fifth  Amendment 
to  the  Constitution  of  the  United 
States,  and  was  the  subject  of  an 
action  under  the  Tucker  act.  See 
Dooley  v.  U.  S.,  182  U.  S.  222.  45  L. 
ed.  1074;  Hooe  v.  U.  S.,  218  U.  S. 
322,  54  L.  ed.  1055.  But  see  O.  S. 
v.  Lynah,  188  U.  S.  445,  47  L.  ed. 
539;  U.  S.  v.  Welch,  217  U.  S.  333, 
54  L.  ed.  787,  28  L.R.A.(N.S.)  385, 
19  Ann.  Cas.  680;  U.  S.  v.  Grizzard, 
219  U.  S.  180,  55  L.  ed.  165,  31 
L.R.A.(N.S.)    1135. 

57Harley  v.  U.  S.,  198  U.  S.  229, 
234,  49  L.  ed.  1029,  1030.  The  re- 
tention without  express  rejection  of 
a    proposal,    although    the    proposal 


§   90] 


UNITED  STATES    DEFENDANT. 


3*T> 


plied  contract  upon  which  a  suit  can  be  brought,  "there  must 
have  been  some  consideration  moving  to  the  United  States,  or  they 
must  have  received  the  money  charged  with  a  duty  to  pay  it 
over ;  or  the  claimant  must  have  had  a  lawful  right  to  it  when  it 
was  received,  as  in  the  case  of  money  paid  by  mistake."  58  With 
the  exception  of  claims  for  the  proceeds  of  captured  or  abandoned 
property  and  others  arising  under  special  statutes,  the  courts 
have  no  jurisdiction  of  claims  upon  torts  committed  by  the 
United  States,59  except  where  the  claimant  can  waive  the  tort 
and  sue  upon  an  implied  contract,60  or  where  the  case  arises 


purports  to  be  an  assignment,  does 
not  amount  to  an  acceptance  of  the 
same,  when  it  expressly  states  that 
it  shall  not  bind  the  proposer  unless 
accepted  by  the  officer  before  a  speci- 
fied date,  and  it  was  an  answer  to 
an  advertisement  stating  that  the 
proposals  were  for  investigation  and 
estimate  and  that  the  advertising 
officer  had  no  authority  to  contract 
for  the  expenditure  of  money.  Beach 
v.  U.  S.,  226  U.  S.  243,  57  L.  ed.  — . 
See  infra,  §  368. 

58Knote  v.  U.  S.,  95  U.  S.  149, 
157,  24  L.  ed.  442,  444. 

59  "'There  can  be  no  reasonable 
doubt  that  this  limitation  to  cases 
of  contract,  express  or  implied,  was 
established  in  reference  to  the  dis- 
tinction between  actions  arising  out 
of  contracts,  as  distinguished  from 
those  founded  on  torts,  which  is  in- 
herent in  the  essential  nature  of  ju- 
dicial remedies  under  all  systems, 
and  especially  under  the  system  of 
the  common  law.  The  reason  of  this 
restriction  is  very  obvious  on  a 
moment's  reflection.  While  Con- 
gross  might  be  willing  to  subject 
the  Government  to  the  judicial  en- 
forcement of  valid  contracts,  which 
could  only  be  valid  as  against  the 
United  States  when  made  by  some 
officer  of  the  Government  acting  un- 
der   lawful    authority,    with    power 


vested  in  him  to  make  such  con- 
tracts, or  to  do  acts  which  implied 
them,  the  very  essence  of  a  tort  is 
that  it  is  an  unlawful  act  done  in 
violation  of  the  legal  rights  of  some 
one.  For  such  acts,  however  higli 
the  position  of  the  officer  or  agent 
of  the  Government  who  did  or  com- 
manded them,  Congress  did  not  in- 
tend to  subject  the  Government  to 
the  results  of  a  suit  in  that  court. 
This  policy  is  founded  in  wisdom, 
and  is  clearly  expressed  in  the  act 
defining  the  jurisdiction  of  the 
court;  and  it  would  ill  become  us 
to  fritter  away  the  distinction  be- 
tween actions  ex  delicto  and  actions 
ex  contractu,  as  well  understood  in 
our  system  of  jurisprudence,  and 
thereby  subject  the  Government  to 
payment  of  damages  for  all  the 
wrongs  committed  by  its  officers  or 
agents,  under  a  mistaken  zeal,  or 
actuated  by  less  worthy  motives." 
Miller,  J.,  in  Langford  v.  U.  S.,  101 
U.    S.    341,    25    L.   ed.    1010. 

Where  a  statute  which  authorized 
a  suit  against  the  United  States 
for  a  continuous  tort  was  repealed 
pending  such  a  suit,  it  was  held 
that  the  damages  sustained  up  to 
the  time  of  the  repeal  only  cculd  be 
recovered.  Paine  L.  Co.  v.  U.  S.. 
55   Fed.  854. 

60  Ingram  v.  U.  S.,  32  Ct.  CI.  147. 


74 


LIABILITY  TO  SUIT. 


[§  96 


under  the  Constitution  or  a  law  of  the  Fn i tod  States.61  The 
United  States  are  not  liable  for  injury  resulting  from  the  negli- 
gence of  their  officers  to  those  who  are  not  in  a  contractual  or 
a  r/(/fl.s<-contractual  relation  with  them.62  A  person  injured 
by  the  negligence  of  a  government  employee  operating  an 
elevator  cannot  waive  the  tort  and  sue  the  United  States  upon 
an  implied  contract  to  carry  him  with  care.63  Where  the 
Register  of  the  Treasury  canceled  registered  bonds  without  au- 
thority of  law,  a  party  who  bought  them  on  the  faith  of  such 
cancellation  and  subsequently  was  obliged  to  repay  their  value 
to  the  original  owner,  was  not  allowed  to  recover  from  the 
United  States  the  amount  for  which  he  was  thus  mulcted.64 
An  action  for  the  unlawful  seizure  of  private  property  for  the 
use  of  the  army  sounds  in  tort  and  the  courts  have  no  juris- 
diction of  the  same.65  Where  a  suit  was  brought  by  an  army 
officer  against  the  United  States  for  indemnity  because  of  his 
payment  of  a  judgment  recovered  against  him  on  account  of  his 
seizure  and  use  of  a  boat  for  the  benefit  of  the  government 
under  the  orders  of  his  superior  officer ;  it  was  held  that,  if  the 
liability  of  the  United  States  was  in  tort,  no  action  would  lie, 
and  that  if  the  liability  was  upon  an  implied  contract,  it  arose 
when  the  seizure  was  made,  not  when  the  judgment  was  re- 
covered.66 Damages  have  been  awarded  against  the  govern- 
ment for   the   use  of  a   vessel  impressed   during  the   Spanish 


162,  per  Xott,  C.  J.:  "The  common 
law  reduces  all  civil  actions  be- 
tween individuals  to  two  simple 
classes,  ex  contractu  and  ex  de- 
licto. There  are  many  subdivisions 
of  the  former,  but  generally  it  may 
be  said  that  what  is  not  r.r  delicto 
is  .  .;•  cm  frui-lii.  It  is  the  opinion  of 
this  court  that  Congress  use]  the 
language  "upon  any  contract,  ex- 
pressed or  implied.'  with  reference 
to  this  general  classification  of  the 
common  law.  The  moaning  is  that 
the  court  shall  have  jurisdiction  of 
all  actions  ex  contractu  whether  the 


contract  be  express  or  implied,  but 
shall  not  have  jurisdiction  of  ac- 
tions ex  delicto." 

eiDooley  v.  V.  S..  182  U.  S.  22J. 
45  L.  ed.  1074;  Lincoln  v.  U.  S..  in? 
U.  S.  419,  49  L.  ed.  816. 

62  German  Bank  of  Memphis  v. 
U.  S.,  148  U.  S.  573.  37  L.  ed.  564. 

63  Bigby  v.  L.  S..  188  U.  S.  400.  47 
L.  ed.  519. 

64f;erman  l>ank  of  Memphis  v. 
1  .  S..  14S  L.  S.  573.  37  L.  ed.  564. 

65  Herrera  v.  U.S.,  222  U.  S,  558, 
55  L.  ed.  316. 

66  Carpenter  v.  U.  S.,  42  Fed.  264. 


8  96]  UNITED  STATES  DEFENDANT.  37"> 

War.67  The  liability  of  the  United  States  and  officers  thereof 
for  the  infringement  of  patents,  is  subsequently  considered.63 
"The  words  'hear  and  determine'  are  used  four  times, — once 
as  applied  to  the  Court  of  Claims,  twice  as  applied  to  that  court 
and  to  the  Circuit  and  District  Courts,  and  again  as  applied 
to  any  court,  department,  or  commission.  These  words  must 
be  taken  to  be  used  in  each  instance  in  the  same  sense,  and  as 
implying  an  adjudication  conclusive  as  between  the  parties,  in 
the  nature  of  a  judgment  or  award.  The  proviso  that  nothing 
in  this  section  shall  be  construed  as  giving  to  either  of  the 
courts  named  in  the  act  jurisdiction  to  hear  and  determine 
claims  'which  have  heretofore  been  rejected  or  reported  on 
adversely  bv  anv  court,  department,  or  commission  authorized 
to  hear  and  determine  the  same;  must  be  limited  to  a  rejection 
of  a  claim,  or  an  adverse  report  thereon,  by  a  court,  department, 
or  commission  which  determines  the  rights  of  the  parties,  such 
as  the  approval  by  the  Secretary  of  the  Treasury  of  an  account 
of  expenses  under  the  captured  and  abandoned  property  acts,69 
or  the  decisions  of  an  international  commission.  Moreover,  the 
Court  of  Claims,  even  before  the  passage  of  the  Act  of  18*7. 
had  jurisdiction  of  Claims  under  an  act  of  Congress  or  under 
a  contract,  and  could  therefore  hear  and  determine  claims  for 
legal  salaries  or  fees.70  We  cannot  believe  that  the  Act  of 
1887,  entitled  'An  act  to  provide  for  the  bringing  of  suits 
against  the  government  of  the  Fnited  States,'  the  manife'sl 
scope  and  purpose  of  which  are  to  extend  the  liability  of  the 
government  to  be  sued,  was  intended  to  take  away  a  juris- 
diction already  existing,  and  to  give  to  the  decisions  of  account- 
ing officers  an  authoritv  and  effect  which  thev  never  had  be- 
fore.''71     Consequently,  the  rejection  of  a  claim  by  the  First 


6TXeal's  Case,  30  Ct.  CI.  40.     See  70  Meade    v.   U.   S.,   9   Wall.    69], 

U.  S.  v.  Russell,  13  Wall.  623.  20  L.  19  L.  ed.  687. 

ed.  474.  71  Meade  v.  U.  S.,  18  Ct.  CI.  281  ; 

68  Infra,    §    100,    and    chapter    on  s.   c.    10!)    U.   S.   146:    Adams   v.  U. 
Court   of  Claims.  8..  20  Gt_Cl.  115;   U.  S,  v.  McDon- 

69  U.    S.    v.    Johnson.    124    U.    S.  aid.    128  T.   S.   471.   32    L.  ed.   506; 
236.   31    L.   ed.   389,   8   Sup.   Ct.   R.  U.  S.  v.  Jones,  131  II.  S.  1,  13. 
446. 


376  LIABILITY  TO  SUIT.  [§    07 

( 'oiuptroller  of  the  Treasury,  which  is  only  conclusive  within 
the  Department  of  the  Treasury,  is  not  a  bar  to  such  a  suit.72 
§  97.  District  Court  practice  in  suits  against  the  United 
States.  The  practice  in  such  suits  in  the  District  Courts 
is  as  follows :  The  plaintiff  must  file  a  petition  duly 
verified  with  the  clerk  of  the  respective  courts  having  juris- 
diction of  the  case,  and  in  the  district  where  the  plaintiff 
resides.1  Such  petition  should  set  forth  the  full  name  and 
residence  of  the  plaintiff,  the  nature  of  his  claim,  and  a 
succinct  statement  of  the  facts  upon  which  the  claim  is  based, 
the  money  or  any  other  thing  claimed,  or  the  damages  sought  to 
he  recovered,  and  must  pray  the  court  for  a  judgment  or  decree 
based  upon  the  facts  and  the  law.2  The  plaintiff  must  cause  a 
copy  of  his  petition,  after  filing  the  same,  to  be  served  upon  the 
district  attorney  of  the  United  States  in  the  district  wherein 
suit  is  brought,  and  must  mail  another  copy  by  registered  letter 
To  the  Attorney-General  of  the  United  States ;  and  must  there- 
upon file  with  the  clerk  of  the  court  wherein  the  suit  is  institut- 
ed, an  affidavit  of  such  service  and  mailing.3  The  United  States 
appears  by  the  district  attorney,  and  is  allowed  sixty  days,  or 
as  much  more  time  as  the  court  may  in  its  discretion  allow, 
within  which  to  file  a  plea,  answer,  or  demurrer;  "and  to  file 
a  notice  of  any  counter-claim,  set-off,  claim  for  damages,  or 
other  demand  or  defense  whatsoever;  of  the  government  in  the 
premises :  provided,  that  should  the  district  attorney  neglect  or 
refuse  to  file  the  plea,  answer,  demurrer,  or  defense,  as  re- 
quired, the  plaintiff  may  proceed  with  the  case  under  such 
rules  as  the  court  may  adopt  in  the  premises."  But  the  plain- 
tiff cannot  have  a  judgment  or  decree  in  his  favor  unless  he 
establishes  the  same  by  proof  satisfactory  to  the  court.4  It  is 
the  duty  of  the  court  to  cause  a  written  opinion  to  be  filed  in 
the     cause,     "setting     forth     the     specific     findings     by     the 

72  U.  S.  v.  Harmon,  147  U.  S.  268;  2  Mr.  Justice  Gray,  Colt,  J.,  con- 

s.  c,  as  Harrison  v.  U.  S.  4]    Fed.  curring,  in  Harmon  v.  U.  S.,  43  Fed. 

560;  U.  S.  v.  Rand.  C.  C.  A.,  53  Fed.  560.  564,  565. 

348:   U.  S.  v.  Jones,  131  U.  S    1,  13,  3  24  St.  at  L.  Ch.  3.59,  p.  505,  §  6, 

33  L.  ed.  90.  2  Fed.  St.  Ann.  80,  Comp.  St.  752, 

§  97.     124    St.    at    L.    Ch.    359,  Pierce  Fed.  Code,  §  7826. 

p.    505,    §    5,   2    Fed.    St.    Ann.    80,  4  Ibid. 
<  omp.    St.    752,    Pierce    Fed.    Code, 
§  7825. 


§    Q»7]  UNITED  STATES   DEFENDANT.  377 


s 


1 


court  of  the  facts  therein  and  the  conclusions  of  the 
court  upon  all  questions  of  law  involved  in  the  case, 
and  to  render  judgment  thereon.5  "That  opinion  is  not 
to  be  regarded  as  the  usual  opinion  of  the  trial  judgment,  but 
must  be  accepted  as  a  part  of  the  record."  6  "The  purpose  of 
the  opinion  is  to  enable  the  public  and  the  Appellate  Court,  to 
find  upon  the  record  a  formal  statement  of  the  findings  of  the 
Circuit  Court,  both  upon  questions  of  law  and  fact,  and  the  rea- 
sons for  such  findings."  7  It  seems  that  an  agreed  statement  of 
facts,  when  filed,  will  be  accepted  as  a  part  of  the  record.8 
Where  a  trial  judge  filed  two  papers,  one  entitled  a  decree  for 
the  petitioner,  and  the  other  the  opinion  of  the  court,  the  two 
setting  out  sufficient  findings  of  fact  to  sustain  its  conclusions ; 
it  was  held,  that  these  papers  were  sufficiently  formal  to  consti- 
tute a  compliance  with  the  statute.9  A  general  refusal  to  com- 
ply with  the  Government's  requests  for  several  findings  of 
fact  and  rulings  of  law  was  held  to  be  as  effectual  as  if  the  same 
were  denied  seriatim?*  "If  the  suit  be  in  equity  or  admiralty, 
the  court  shall  proceed  with  the  same  according  to  the  rules  of 
such  court." 10  Judgment  may  be  rendered  in  favor  of  the 
United  States  for  the  balance  due  upon  a  counterclaim.11  If 
the  United  States  puts  in  issue  the  right  of  the  plaintiff  to  re- 
cover, the  court  may  in  its  discretion  allow  costs  to  the  prevail- 
ing party,  which,  however,  cannot  exceed  what  is  actually  in- 
curred for  witnesses,  "and  for  summoning  the  same,  and  fees 
paid  to  the  clerk  of  the  court."  12  From  the  date  of  final  judg- 
ment or  decree  against  the  government,  interest  is  allowed  "to 
be  computed  thereon,  at  the  rate  of  four  per  centum  per  annum, 
until  the  time  when  an  appropriation  is  made  for  the  payment 

5  Ibid.,    §    7,    Pierce    Fed.    Code,  »U.    S.    v.    Swift,    C.    C.    A..    139 

§  7827.    For  findings  concerning  the  Fed.  225,  226. 

services   of   a  marshal,   which   were  9  U.   S.  v.   Hyams.   C.   C.   A.,   146 

Held    not   to   be   sufficiently    specific  Fed.  15. 

to    enable    the    appellate    court    to  9a  Ibid. 

determine    the    Government's   liabil-  10  U.   S.  v.   Hyams,  C.   C.   A..    1,46 

ity,   see  U.  S.   v.   Tisdale,   114   Fed.  Fed.   15,  24  St.  at  L.  Cb.  350.  §   7. 

883.  P-    506- 

6U.  S.  v.  Swift,  C.  C.  A.,  139  Fed.  "  U.  S.  v.  Saunders,  C.  C.  A..  79 

225.  226.  Fed.    407;    McElratb    v.    U.   S>,    102 

"YlJvams   v.   U.   S.,   130    Fed.    997,  U.  S.  426,  26  L.  ed.  189. 


990. 


12  24  St.  at  L.  508.  §  15.     See  V. 


LIABILITY    TO    SUIT. 


[§    97 


of  the  judgment  or  decree.'? 13  It  lias  been  held  that  no  interest 
can  be  allowed  before  judgment;  except  upon  a  contract  which 
stipulates  for  interest.14  The  plaintiff  can  appeal  where  the 
;ii n< »unt  in  controversy  exceeds  three  thousand  dollars,  or 
where  his  claim  is  forfeited  to  the  I  nited  States  by  the  judg- 
ment of  the  court  below 14a  for  fraud  in  connection  with  its 
presentation  or  proof.*15  Before  the  creation  of  the  Cir- 
cuit Courts  of  Appeal,  an  appeal  or  writ  of  error  under 
this  act  was  heard  by  and  returnable  to  the  Supreme 
Court,16  not  to  the  Circuit  Court.17  Since  the  Evarts  Act, 
unless  a  question  of  jurisdiction,  a  constitutional  question, 
or  the  construction  of  a  treaty  is  involved,  the  Circuit  Court  of 
Appeals  is  the  first  court  of  review7,18  except  in  cases  of  appeals 
from  the  Court  of  Claims.19  A  judgment  in  a  suit  to  recover 
official  fees,  salary  or  compensation  is  ordinarily  reviewable  by 
writ  of  error,  not  by  appeal.20  A  judgment  in  a  suit  to  recover 
rent  is  reviewable  by  writ  of  error.21  Such  appeal  or  writ  of 
error  should  be  taken  within  ninety  days  after  the  judgment  is 
rendered.22  An  appeal  or  writ  of  error  may  be  taken,  irre- 
spective of  the  amount  involved,  by  the  district  attorney,  at  the 
direction  of  the  Attorney-General,  w7ithin  six  months  after  the 
judgment  or  decree.23  Otherwise,  the  practice  in  all  courts  in 
suits  brought  under  this  statute  is  similar  to  that  in  other 
suits,23  with  "such  additions  and  modifications  as  said  courts 
may  adopt."  24 


S.  v.  Harmon.  147  U.  S.  26S,  282,  37 
L.  ed.  104,  ICO. 

13  24  St.  at  L.  507,  §  10. 

Hint.  B.  &  S.  Dock  Co.  v.  I".  S., 
60  Fed.  f>23,  527;  U.  S.  R.  S.,  §  1091. 

Ha  24  St.  at  L.  506,  §  9. 

15  Jud.  Code,  §  182,  re-enact  ing  l. 
S.  R.  S..  §  1086-;  U.  S.  E.  S.,  §707; 
U.  S.  v.  Davis.  131  U.  S.  36.  39,  33 
L.  ed.  93,  94;  Strong  v.  U.  S..  40 
Fed.   183. 

16  r.  S.  v.  Davis,  131  U.  S.  36.  33 
L.  ed   93. 

"Strong  v.   U.   9.;   40    Fed.    183. 

18  U.  S.  v.  Morgaii,  C.  C.  A.,  64 
Fed.  4. 

19  r.  S.  K.  S..  §  707. 


20  TJ.  S.  v.  Harsha,  172  U.  S.  567, 
43  L.  ed.  556;  IT,  S.  v.  Ady,  C.  C.  A., 
76  Fed.  359:  U.  S.  v.  Tinsley.  C.  C. 
A.,  75  Fed.  369;  U.  S.  v.  Morgan, 
C.  C.  A,,  64  Fed.  4;  U.  S.  v.  Fletcher, 
C.   C.   A.,    GO   Fed.   53. 

21  Chase  v.  U.  S..  155  U.  S.  489, 
39  L.  ed.  234. 

22  24  St.  at  L.  506,  §  9 ;  U.  S.  R. 
S..  §  708.  But  see  U.  S.  v.  Davis, 
131    U.  S.  36,  39,  33   L.  ed.  93,  94. 

23  24  St.  at  F..  eh.  350.  507;  §  10; 
U.  S.  v.  Davis,  131  U.  S.  36.  39,  33 
L.  ed.  93,  94;  U.  S.  v.  Yukers,  60 
Fed.  641. 

24  24  St.  at  L..  ch.  359,  506,  §  4. 


§    99]  INDIAN    ALLOTMENT    SUITS.  379 

§  98.  Suits    against    the    United    States    for    partition. 

The  Judicial  Code  gives  the  District  Courts  jurisdiction   "of 
suits  in  equity  brought  by  any  tenant  in  common  or  joint  ten- 
ant for  the  partition  of  lands  in  cases  where  the  United  States 
is  one  of  such  tenants  in  common  or  joint  tenants,  such  suits 
to  be  brought  in  the  district  in  which  such  land  is  situate." 
The  Act  of  .May  17,  1898,  of  part  of  which  this  is  a  reenact- 
ment,  further  provides:     "That  when  such  suit  is  brought  by 
any    person    owning    an    undivided    interest    in    land,  other 
than    the    United     States,    against    the    United    States  alone 
or     against     the     United     States     and     any     other     of     such 
owners,     service     shall     be     made     on     the     United      States 
by  causing  a  copy  of  the  bill  filed  to  be  served  upon  the  district 
attorney  of  the  district  wherein  the  suit  is  brought,  or  by  mail- 
ing a  copy  of  the  same  by  registered  letter  to  the  Attorney- 
General  of  the  United  States ;  and  the  complainant  in  such  bill 
shall  file  with  the  clerk  of  the  court  in  which  such  bill  is  filed 
an  affidavit  of  such  service  and  of  the  mailing  of  such  letter. 
It  shall  be  the  duty  of  the  district  attorney  upon  whom  service 
of  the   bill   is   made    as   aforesaid   to    appear   and   defend    the 
interests  of  the  government,  and  within  sixty  days  after  service 
upon  him  as  hereinabove  prescribed,  unless  the  time  shall  be 
enlarged  by  order  of  the  court  made  in  the  case,  to  file  a  plea, 
answer  or  demurrer  on  the  part  of  the  government,   and  the 
cause  shall  proceed   as  other  Cases  for  partition  by  courts  of 
equity,  and  in  making  such  partition  the  court  shall  be  gov- 
erned by  the  same  principles  of  equity  that  control  courts  of 
equity     in    partition     proceedings    between     private    persons. 
Whenever  in  such  suit  the  court  shall  order  a  sale  of  the  prop- 
erty, or  any  part  thereof,  the  Attorney-General  of  the  United 
States  may,  in  his  discretion,  bid  for  the  same  in  behalf  of  the 
United   States.      And   if  the  United    States   shall   be   the  pur- 
chaser, the  amount  of  the  purchase-money  shall  be  paid  from 
the  treasury  of  the  United  States  upon  a  warrant  drawn  by  the 
Secretary  of  the  Treasury  on  the  requisition  of  the  Attorney- 
General."  2 

§  99.  Suits  by  Indians  for  allotments  of  land.     The    Ju- 
dicial Code  gives  the  District  Courts  of  the  Tinted  States  juris- 

§  98.     136   St.   ;it    L.    1087.   §   21.  830  St.  at  L.   416. 

sub'd.   twentv-fifth. 


380  LIABILITY  TO  SLIT.  [§    100 

diction  "of  all  actions,  suits,  or  proceedings  involving  the  right 
of  any  person,  in  whole  or  in  part  of  Indian  blood  or  descent, 
to  any  allotment  of  land  under  any  law  or  treaty."  *  The  Act 
of  August  15,  1894,  of  which  this  is  a  reenactment,  further 
provides:  ''And  the  judgment  or  decree  of  any  such  court  in 
favor  of  any  claimant  to  an  allotment  of  land  shall  have  the 
same  effect,  when  properly  certified  to  the  Secretary  of  the 
Interior,  as  if  such  allotment  had  been  allowed  and  approved 
by  him ;  but  this  provision  shall  not  apply  to  any  lands  now  held 
by  enther  of  the  Five  Civilized  Tribes  nor  to  any  of  the  lands 
within  the  Quapaw  Indian  Agency;  provided,  that  the  right  of 
appeal  shall  be  allowed  to  either  party  as  in  other  cases."  2  This 
act  gives  the  district  courts  jurisdiction  to  decree  relief  to  an  In- 
dian, entitled  under  the  law  to  an  allotment  of  land,  when  he 
has  been  deprived  of  that  right  by  the  rulings  of  the  Land  De- 
partment.3 The  provision  of  the  act,  that  the  decree  of  the 
court,  in  favor  of  a  claimant,  shall  have  the  same  effect  as  an  al- 
lotment allowed  and  approved  by  the  Secretary  of  the  Interior 
is  a  consent  upon  the  part  of  the  United  States  to  be  bound  by 
such  decree ;  and  where  the  suit  involves  simply  a  question  of 
priority  of  right  between  two  claimants,  the  United  States  is  not 
a  necessary  party.4 

§  100.  Injunctions  against  officers  of  the  United  States. 
An  officer  of  the  United  States,1  even  a  cabinet  officer,2  may 
be  enjoined  from  an  act  in  violation  of  the  complainant's 
rights,  which  is  not  discretionary  and  which  is  beyond  the 
scope  of  his  authority,  such  as  the  revocation  of  the  approval 
by  his  predecessor  of  the  maps  of  a  right  of  way  over  public 
land?;3  or  the  unlawful  removal  of  imports  from  his  district 
by  a  collector,  acting  under  an  order  of  the  Secretary  of  the 
Treasury ; 4  or  the  withholding  of  mail  by  a  postmaster,  under 

§  90.     l  36   St.  at  L.   1087,   §  24,  An  injunction  may  be  granted  when 

subd.  twenty-fourth.  the   officer  transcends  the  limits  of 

2  28  St.  at  L.  286,  305.  his  authority  under  a  constitutional 

3Hy-Yu-Tse  Mil-Kin  v.  Smith,  C.  statute.     Philadelphia    Co.  v.   Stim- 

C.  A.,  119  Fed.  114.  son.  223  U.  S.  605,  56  L.  ed.  570. 

4  Ibid.  3  Noble  v.  Union  R.  L.  R.  Co..  147 

§  100.     1  Caldwell  v.  Robinson.  59  I'.  S.   165,  37  L.  ed.  123. 

Fed.  653.  660.  *  Bruhl    Bros,    k    Co.    v.    Wilson, 

2  Noble  v.  Union  R.  L.  R.  Co.,  147  123  Fed.  457. 

U.   S.   165,  171,  37   L.  ed.  123,   125. 


§    100]        INJUNCTIONS    AGAINST     FEDERAL     OFFICERS.  381 

an  order  of  the  Postmaster  General,  when  the  plaintiff's  rights 
are  clear.5  But  an  injunction  to  prevent  the  withholding  of 
mail  will  rarely  be  granted,  in  a  case  where  the  Postmaster 
General  has  made  a  decision  against  the  complainant  upon  a. 
disputed  question  of  fact  or  a  mixed  question  of  fact  and  law,, 
which  is  committed  by  Congress  to  his  judgment ; 6  nor  when  his 
decision  depends  upon  a  doubtful  question  of  law.7  Where 
there  has  been  a  dispute  as  to  the  right  to  send  publications 
through  the  mails  as  second-class  matter,  preliminary  injunc- 
tions have  been  granted  in  return  for  a  bond,  given  by  the 
complainant,  to  pay  the  excess  postage  in  case  the  controversy 
should  ultimately  be  /lecided  against  him.8  In  such  a  caser 
where  payments  of  postage  had  been  made  under  protest,  it 
was  held  that  the  complainant's  right  to  recover  the  same  was 
enforceable  at  common  law  and  that  upon  a  determination  that 
it  was  not  entitled  to  an  injunction  the  bill  should  be  dismissed 
without  prejudice.9  The  Supreme  Court  took  jurisdiction  of 
a  suit  by  a  State,  to  enjoin  the  Secretary  of  the  Interior  from 
selling  certain  land  upon  the  ground  that  the  United  States  was 
a  party  and  had  given  statutory  consent  to  suits  against  it  in 

5  Am.  School  of  Magnetic  Heal-  U.  S.  106,  48  L.  ed.  804;  Central 
ing  v.  Mc Annuity,  187  U.  S.  94,  47  Trust  Co.  v.  Central  Trust  Co.  of 
L.  ed.  90;  New  Orleans  Nat.  Bank  Illinois,  216  U.  S.  251,  54  L.  ed. 
v.  Merchant,  18  Fed.  841;  Hoover  v.  469;  Enterprise  Saw  Ann's  v.  Zum- 
McChesney,  81  Fed.  472;  Fairfield  stein,  C.  C.  A.,  67  Fed.  1000;  Peo- 
Floral  Co.  v.  Bradbury,  87  Fed.  pie's  United  States  Bank  v.  Gilson. 
415;  Davis  v.  Brown,  103  Fed.  909;  140  Fed.  1;  holding  that  upon  the. 
Kosenberger  v.  Harris,  136  Fed.  hearing,  the  person  affected  may  be 
1001;  Donnell  Mfg.  Co.  v.  Wyman,  required  to  assume  the  burden  of 
156  Fed.  415;  Lewis  Pub.  Co.  v.  proof  and  to  show  affirmatively  that 
Wyman.  152  Fed.  787,  where  the  his  business  is  legitimate  and  lion- 
complainant  had  been  denied  a  full  est.  Appleby  v.  Cluss,  160  Fed. 
hearing  before  an  order,  excluding  984,  People's  United  States  Bank  v. 
his  publication  from  second  class  Gilson,  C.  C.  A..  161  Fed.  2S6:  Put- 
matter  in  the  mails,  was  made.  But  nam  v.  Morgan,  172  Fed.  450;  Bran- 
see  S.  c,  168  Fed.  752:   Aff'd.  C.  C.  anian  v.  Harris.  189  Fed.  40!. 

A.,  182  Fed.  13.     Lewis  Pub.  Co.  v.  1    Smith   v.  Hitchcock.  226   U.  S. 

Wyman.    168     Fed.    756;     Brooklyn  53,  57  L.  ed.  — . 

Daily    Fagle    v.   Voorhies,    181    Fed.  8  Lewis  Pub.  Co.  v.  Wyman,  C.  C. 

579.     See  a  note  to  Timmons  v.  U.  A,.  182  Fed.  13. 

S.,  30  C.  C.  A.  74.  9  Ibid. 

6  Bates  &  Gould  Co.  v.  Payne,  194 


382 


LIABILITY  TO  SUIT. 


[§  100 


respect  to  the  subject  matter;10  but  where  no  such  statutory 
consent  had  been  given,  that  court  refused  to  entertain  juris- 
diction of  a  similar  case.11  In  the  absence  of  the  statutory 
consent  of  the  United  States,  a  suit  cannot  be  brought  to  enjoin 
the  Secretary  of  the  Interior  from  executing  an  act  of  Con- 
gress, authorizing  the  sale  of  certain  lands,  the  title  to  which 
is  still  in  the  government,  in  which  the  complainant  claims  an 
interest,  and  for  an  accounting  of  the  proceeds  of  the  same.12 
The  Supreme  Court  has  no  jurisdiction  of  an  action  brought 
by  a  State  against  the  Secretary  of  the  Interior  to  establish 
title  to  lands  and  to  prevent  other  disposition  of  the  same, 
where,  there  is  a  disputed  question  of  law  and  fact  concerning 
the  ownership  thereof  by  the  United  States.13  An  Indian 
agent  may  be  enjoined  against  interfering  with  rights  to  lands 
which  he  claims  belonged  to  an  Indian  tribe.14  '  In  general,  no 
injunction  will  lie  against  an  officer  of  a  Department  interfer- 
ing with  the  discharge  of  his  duties  in  the  sale  of  public  lands, 
so  long  as  the  title  thereto  remains  in  the  United  States.15  An 
injunction  was  denied  when  prayed  to  prevent  an  army  officer, 
acting  under  the  orders  of  the  Secretarv  of  War  and  claiming 
statutory  authority,  from  constructing  in  a  proper  manner  a 
sewer  upon  Government  lands  which  would  injuriously  affect 
other  land  on  the  stream  into  which  the  sewer  emptied.16  hi 
a  [> roper  case,  an  injunction  will  lie  against  a  marshal  of  the 
United  States  to  prevent  the  enforcement  of  a  judgmnet  which 
is  void  for  want  of  jurisdiction,  when  such  want  of  jurisdiction 
does  not  appear  upon  the  face  of  the  writ ; 17  but  in  such  a  case, 
"no  injunction   will   be  granted  against  the  United  States  or  a 


10  Minnesota  v.  Hitchcock,  185 
V.  S.  373,  46  L.  ed.  954. 

""Oregon  v.  Hitchcock,  202  U.  S. 
(ill,  50  L.  ed.  935. 

WNaganab  v.  Hitchcock,  2Q2  U. 
S.  473.  50   L.  ed.    1  I  13. 

13  state  of  Louisiana  v.  Garfield, 
211   I*.  S.  70. 

14  Caldwell  v.  Robinson.  5!)  Fed, 
rG53;  Wadsworth  v.  I'.oysen,  C.  C.  A., 

I  IS  Fed.  71.  It  has  been  held  that 
an  Indian  agent  was  a  proper,  al- 
though   not   an    indispensable    party 


to  a  suit  to  determine  rights  under 
leases  of  Indian  lands.  Texas  Co.  v. 
Central  Fuel  Oil  Co.,  C.  C.  A..  104 
Fed.    1. 

15  Johnson  v.  Towsley,  13  Wall. 
72.  87,  20  L.  ed.  485,  45S:  Marquez 
v.  Frishie.  101  U.  S.  47.'].  475.  25  L. 
«-d.  800,  SOI  :  Humbird  v.  Avery,  195 
U.  S.  480,  503.  49  U  ed.  280,  290. 

IP  Sheriff  v.  Turner,  119  Fed.  782. 

17  Kirk  v.  U.  S.,  124  Fed.  324;  s. 
C,  F'.l  Fed.  331.  But  see  Buckley 
v.  U.  S.,   196  Fed.  429,  431. 


§    101]  EJECTMENT   AGAINST   FEDEKAL   OFFICERS. 


383 


clerk  of  one  of  its  courts.18  Payment  of  a  sum  of  money  by  the 
United  States  cannot  be  compelled  by  a  suit  against  the  Comp- 
troller of  the  Treasury  or  other  public  officer.19  An  injunc- 
tion will  not  be  granted  against  an  officer  or  agent  of  the  United 
States  forbidding  the  infringement  of  a  patent  right  in  the 
use  of  Government  property.20  The  only  remedy  of  the 
patentee  in  such  a  case  is  a  suit  in  the  Court  of  Claims  against 
the  United  States  to  recover  reasonable  compensation  for  the 
use  of  the  patent,  in  accordance  with  the  Act  of  -Tune  2."). 
1910,21  except  when  the  facts  show  an  express  or  implied  con- 
tract between  the  parties,  when  a  suit  will  lie  upon  the  same.22 
It  has  been  held  that  no  injunction  will  lie  against  an  indi- 
vidual or  corporation  to  prevent  the  infringement  of  a  patent 
by  the  use  of  a  chute  used  in  the  collection  of  the  mail  under 
the  regulations  of  the  Post  Office  Department  and  that  an 
action  for  damages  is  the  only  remedy,  if  any,  of  the  patentee, 
against  the  owner  of  the  building  where  the  same  is  used.23 

§  101.  Ejectment  against  officers  of  the  United  States. 
An  action  of  ejectment  has  been  sustained  against  government 
officers  sued  as  individuals  for  land,  such  as  a  soldiers'  ceme- 
tery l  and  a  pier  2  held  by  them  for  governmental  purposes  in 


18  Buckley  v.  U.  S..  196  Fed.  429. 

19  Case  v.  Terrell.,  11  Wall.  199,  20 
L.  ed.  134;  Van  Antwerp  v.  IIul- 
burd,  Fed.  Cas.  No.  16,827  (8 
BlatcM.  282). 

20  Cammeyer  v.  Newton,  94  U.  S. 
225,  235.  24  L.  ed.  72,  75;  Belknap 
v.  Schild,  Kil  U.  S.  10,  17,  40  L.  ed. 
599,  601  ;  International  Postal  Sup- 
ply Co.  v.  Bruce.  194  P.  S.  601,  48 
P.  ed.  1134.  affirming  114  Fed.  509; 
infra,  §  100.  Crozier  v.  Fried, 
Krupp  Aktiengesell-Schaft,  224  U. 
S.  290,  56  L.  ed.  771. 

2136  St.  at  L.  851;  Crozier  v. 
Fried.  Krupp  Aktiengesell-Schaft, 
224  l".  S.  290.  56  L.  ed.  771.  See 
Chapter  on  the  Court  of  Claims, 
infra. 

22  U.  S.  v.  Palmer,  128  U.  S.  262, 
32  L.  ed.  442;  The  United  States  v. 
Societe  Anonyme  des  Anciens  Es- 
tablissements  Yjail,  224  U.  S.  309,  56 


L.  ed.  778:'  §  96.  supra.  But  see 
Schillinger  v.  U.  S..  155  U.  S.  163. 
39  L.  ed.  108;  Russell  v.  U.  S..  182 
U.  S.  516,  45  L.  ed.  1210;  Harley  v. 
U.  S.,  198  U.  S.  229,  49  L.  ed.  1029: 
Beach  v.  P.  S.,  226  U.  S.  243,  57  L. 
ed.  — .  In  the  last  three  cases,  it 
was  held  that  the  facts  did  not  jus- 
tify an  inference  of  such  a  contract. 
So  as  to  the  use  of  copyright.  Lau- 
mairs  Case,  27  Ct.  CI.  260. 

23  Cutler   v.   Maryland  Hotel   Co., 
168  Fed.  931. 

§   101.     1U.   S.   v.   Lee.   106   P.   S. 


196. 


L.     ed.     171  ;     Stanley    iv. 


Schvvalby,  147  U.  S.  508.  37  L.  ed. 
259:  Tindal  v.  Wesley,  167  P.  B. 
204,  42  L.  ed.  137.  But  see  Stanley 
v  Schwalby,  162  P.  S.  255,  40  L.  ed. 
960. 

2  Scranton  v.  Wheeler,  C.  C.  A.,  57 
Fed.  803,  807. 


384: 


LIABILITY  TO  SLIT. 


[§  102 


the  name  of  the  United  States;  but  the  United  States  are  not 
bound  by  any  adjudication  in  such  a  suit.3 

§  102.  Replevin  against  officers  of  the  United  States. 
Papers  on  file  in  a  Government  Department  cannot  be  obtained 
by  replevin.1  Before  the  Tucker  act,  it  was  held  that  no  suit 
would  lie  to  compel  the  Treasurer  and  Comptroller  of  the 
United  States  to  deliver  to  the  complainant  the  surplus  of 
bonds  deposited  as  security  for  bank  notes  when  the  bank  notes 
had  been  paid.2  Since  the  Tucker  act,  it  has  been  held  that 
a  suit  thereunder  will  lie  against  the  United  States  to  recover 
taxes  which  a  statute  had  directed  the  Secretary  of  the  Treas- 
ury to  refund,3  but  that  no  injunction  should  issue  to  prevent 
a  collector  from  disposing  of  duties  paid  by  the  complainant, 
which  the  Board  of  General  Appraisers  and  the  court  have 
held  should  be  refunded.4 

§  103.  Liability  of  a  State  to  a  suit  by  the  United  States. 
A  State  may  be  sued  by  the  United  States  in  any  proper  case, 
without  consenting  to  the  jurisdiction.1  Such  consent  was 
given  by  the  State  when  it  was  admitted  into  the  Union,  upon 
an  equal  footing  with  the  other  States.2 

§  104.  Liability  of  a  State  to  a  suit  by  another  State. 
The  Constitution  provides  that  "the  judicial  Power  shall  ex- 
tend ...  to  Controversies  between  two  or  more  States, 
....  and  between  a  State,  or  the  Citizens  thereof,  and  for- 
eign Stares,  Citizens  or  Subjects."  1  The  Eleventh  Amendment 
has  not  taken  away  the  liability  of  one  of  the  United  States  to 
a  suit  by  another  such  State  or  a  foreign  State.  Such  juris- 
diction, however,  is  confined  to  controversies  concerning  rights 
affecting    property;    not    to    those    merely    affecting    political 


3TJ.  S.  v.  Lee,  306  TJ.  S.  196,  223, 
27  L.  ed.  171.  182;  Stanley  v. 
Sehwalby.  147  I'.  S.  508,  37  L.  ed. 
259;  s.  c.  162  U.  S.  255;  272.  40  L. 
ed.  !tiii>.  960;  Scranton  v.  Wheeler, 
.".7  Fed.  803.  80T;  Tindal  v.  Wesley; 
167  U.  S.  -2H4.  22.",.  42  L.  ed.  137, 
i  i:;. 

§  1025  i  VaU  Antwerp  v.  Ilul- 
l.i!  id.  Fed.  Cas.  No.  16,827  (8 
Blatchf.  282  i .  See  Case  v.  Ten-el.  1 1 
Wall.  199,  20  L.  ed.  134. 


2  Brent  v.  Hagner,  5  Cranch  (C. 
C.)  71,  6  Opinions  of  Attorney  Gen- 
eral,  223. 

3U.  S.  v.  Shipley.  C.  C.  A.,  197 
Fed.  265. 

*Joaiinidis  vi  Loeb,  191  Fed.  93. 

§  103.  U'.  S.  v.  Texas.  143  U. 
S.  621.  36  L.  ed.  2S5:  Kansas  v.  U. 
S..  2D4  I  .  S.  331,  51  L.  ed.  510. 

2  F.  S.  v.  Texas.  143  U.  S.  621, 
646,   36   L.  ed.   285,   293. 

§   104.     1  Art.  III.,  §  2. 


104] 


STATE    AGAINST    STATE. 


;o. 


rights.2     It  includes   controversies   concerning  boundaries  be- 
tween different  States,  even  though  the  complainant  claim  no 
title  other  than  that  of  sovereignty  and  jurisdiction  over  the 
lands  m  question.3     For,   "in  this,  country,  where  feudal  ten- 
ures are  abolished,  in  cases  of  escheat  the  State  takes  the  place 
of  the  feudal  l0rd,  by  virtue  of  its  sovereignty,  as  the  original 
and  ultimate   proprietor  of  all  the  lands  within   its  jurisdic- 
tion."       If,  however,   in  a  bill  which  prays  relief  against  a 
threatened  invasion  of  rights  purely  political  in  tiieir  nature 
a  threatened   injury  to  property  be  stated   "only  by  wax-   of 
showing  one  of  the  grievances  resulting  from  the  threatened 
destruction  of  the  State,  and  in  aggravation  of  it,  not  as  a 
specific  ground   of  relief;''  and   "this  matter  of  property   is 
neither  stated  as  an  independent  ground,  nor  is  it  noticed  at 
all  in  the  prayers  for  relief:"  the  bill  will  be  dismissed.5    A  suit 
cannot  be  maintained  when  brought  by  one  State  against  an- 
other to  enforce  the  payment  by  the  latter  of  its  bonds  original- 
ly held  by  citizens  of  the  former  State,  and  assigned  by  them  to 
it  solely  for  the  purpose  of  collection.6    But  a  State  which  own- 
absolutely  the  bonds  of  another  State,  although  it  has  receive! 
them  as  a  gift  after  they  have  been  due,  may  sue  the  latter  and 
recover  a  decree  adjudging  the  amount  due  and  directing  the 
foreclosure  and  sale  of  shares  of  corporate  stock  owned  by  the 
defendant  and  mortgaged  as  security  for  the  bonds.7     A  State 


2  Cherokee  Nation  v.  Georgia,  5 
Pet.  ],8L.  ed.  25;  Georgia  v.°Stan- 
ton,  6  Wall.  50,  18  L.  ed.  721; 
Georgia  v.  Grant,  6  Wall.  241.  18  L. 
ed.   848. 

3  Rhode  Island  v.  Massachusetts. 
12  Pet.  657,  9  L.  ed.  1233;  Missouri 
v.  Iowa,  7  How.  060,  12  L.  ed.  861; 
Florida  v.  Georgia.  17  How.  478,  15 
L.  ed.  181  :  Alahama  v.  Georgia.  23 
How.  505,  16  L.  ed.  556;  Virginia 
v.  West  Virginia.  11  Wall.  39,  20 
L.  ed.  67. 

*  Georgia  v.  Stanton,  6  Wall.  50. 
73,  18  L.  ed.  721,  724. 

5  Georgia  v.  Stanton.  6  Wall.  ."in. 
77,  18  L.  ed.  721.  725. 

6  New    Hampshire    v.    Louisiana. 
108  U.  S.  76,  27  L.  ed.  656. 

Fed.  Prac.  Vol.  I.— 25. 


7  South    Dakota    v.    North    Caro- 
lina, 192  U.  S.   286,  48  L.  ed.  448. 
Pefore  the  day  fixed  for  the  sale,  tin- 
defendant  paid   the   amount   of   the 
plaintiff's    claim     in    full,     namely, 
$27,400.  with  costs.     The  Committee 
of   the   North   Carolina   bondholders 
subsequently   offered,   to  the   Gover- 
nor of  South  Dakota,  other  bonds  of 
North   Carolina,  which   with   princi- 
pal   and    interest   aggregated    $150.- 
000.     Governor   EIrod   wrote,   in   an- 
swer:   "Your  kind  offer  is  declined, 
for  the  reason  that  it  seems  to  m,. 
to  Im-  against  public  policy  and  good 
conscience."     On  January  8th,  1907. 
he   recommended    the   passage   of   an 
act    returning    the    money    received 
from  South  Carolina,  saying:    "Mor- 


386 


LIABILITY  TO  SUIT. 


[§  104 


may  sue  another  State,  and  a  municipal  corporation  of  the  lat- 
ter, for  an  injunction  against  the  excessive  and  unreasonable 
discharge  of  sewage  into  a  river,  which  poisons  the  water  sup- 
ply of  the  inhabitants  of  the  plaintiff  and  injuriously  affects 
that  portion  of  the  bed  of  a  river  which  lies  within  the  plain- 
tiff's territory.8  A  State  may  sue  another  State,  to  prevent  the 
latter  from  authorizing  the  diversion  of  the  waters  of  a  stream 
flowing  through  both  States,  so  as  to  deprive  the  plaintiff's  in- 


aily,  we  have  no  right  to  one  cent 
of  this  money,  and  we  ought  to  he 
brave  enough  and  true  enough  to 
give  it  back.  This  money  was  clear- 
ly intended  for  our  university.  She 
can  use  it.  but  it  is  tainted  money. 
I  would  send  this  money  back  to 
North  Carolina  for  her  university 
and  appropriate  a  like  sum  for  our 
splendid  university.  It  will  be  no 
burden  on  our  people.  Tt  is  en- 
tirely plain  that  ingenious  schem- 
ers are  using  our  State  for  private 
ends.  ...  It  is  plain  that  de- 
signing individuals  would  continue 
to  use  the  good  name  of  the  State 
of  South  Dakota  to  collect  question- 
able securities  of  other  States.  .  .  . 
It  is  clear  to  me  that  our  State 
ought  not  to  become  a  collecting 
agency,  neither  ought  it  to  forget 
the  doctrine  of  'comity  between 
States.'  The  decision  in  the  case 
of  the  State  of  South  Dakota  v.  the 
State  of  North  Carolina  opens  up 
endless  opportunities  for  States  to 
deal  in  the  bonds  and  other  obliga- 
tions of  sister  States.  It  is  not 
possible  to  exaggerate  the  scandals. 
the  corruption  of  Legislatures  and 
State  officials,  and  the  possibilities 
of  graft  which  would  follow  if 
States  should  start  to  trade  on  the 
power  which  the  decision  gives  them. 
Xo  State  ought  to  be  endowed  with 
the  power  to  speculate  upon  unen- 
forceable     claims      of      individuals 


against  other  States.  Under  the 
Federal  Constitution  individuals 
cannot  sue  States  on  such  bonds, 
so  the  holder  gives  or  sells  them 
to  us.  and  we  can  sue  the  State 
that  issued  the  bonds.  The  de- 
cision in  the  above  entitled  case 
hangs  entirely  on  the  fact  that 
South  Dakota  was  the  bona  fide 
owner  of  the  bonds  in  question. 
There  is  no  magic  in  the  fact  that 
she  got  them  as  a  gift.  She 
would  be  equally  the  bona  fide 
owner  if  she  had  bought  them." 
The  Sun.  January  15th,  1907.  .Mr. 
Justice  Brewer  said:  "I  can  but 
think  her  conduct  far  above  that 
of  the  State  of  South  Dakota, 
which  willingly  took  a  donation  of 
bonds  with  the  idea  of  collecting 
them  from  a  sister  State,  in  disre- 
gard of  that  generous  feeling 
which  should  control  all  the  States 
of  t lie  Union:  and  I  do  not  wonder 
that  the  Governor  of  South  Dakota, 
who  retired  from  office  last  January, 
in  his  final  message  recommended 
that  the  Legislature  appropriate  the 
full  amount  of  the  money  received 
and  tender  it  back  to  North  Caro- 
lina!'' Report,  p.  171,  Mohonk  Con- 
ference. A.  D.  1907. 

8  Missouri  v.  Illinois,  180  U.  S. 
208,  45  L.  ed.  497;  s.  c,  200  U  S. 
49C.  50  L.  ed.  572:  where  the  bill 
was  dismissed  without  prejudice  aft- 
er a  trial  of  the  issues  of  fact. 


§     105]  STATE    AS    DEFENDANT.  387 

habitants  of  the  water,  to  which  they  were  entitled ; 9  and  where 
the  navigability  of  the  stream  is  not  affected,  the  United  States 
has  no  right  of  intervention  because  of  its  alleged  duty  of 
legislating  for  the  reclamation  of  arid  lands.10  A  State  can- 
not sue  another  State,  to  enjoin  the  enforcement  of  quarantine 
regulations,  which  impose  unreasonable  restraint  upon  com- 
merce between  ports  of  the  two  States.11  A  tribe  of  Indians 
domiciled  within  the  borders  of  the  United  States  does  not  con- 
stitute a  foreign  State  within  the  meaning  of  the  Constitu- 
tion.12 

§  105.  Liability  of  States  to  Suits  by  Private  Persons. 
Under  the  Constitution  of  the  United  States  as  originally 
adopted,  it  was  provided  that  the  judicial  power  of  the  United 
States  should  extend  to  controversies  "between  a  State  and 
Citizens  of  another- State."  x  This  was  held  to  subject  a  State 
to  liability  to  an  action  by  a  citizen  of  another  State.2  The  de- 
cision was  opposed  to  the  opinions  of  Marshall  and  others,  as 
expressed  in  the  conventions  which  ratified  the  Constitution,3 
and  was  repugnant  to  the  feelings  of  the  people.  Consequent- 
ly, the  Eleventh  Amendment  was  adopted,  This  enacted  that 
"the  Judicial  Power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit,  in  law  or  equity,  commenced  or  prose- 
cuted against  one  of  the  United  States  by  Citizens  of  another 
State,  or  by  Citizens  or  Subjects  of  any  Foreign  State."  A 
State  cannot,  without  its  consent,  lie  sued  by  one  of  its  own  cit- 
izens, even  on  a  cause  of  action  arising  under  the  Constitution 

9  Kansas    v.    Colorado.    185    U.    S.  flow  of  the   river.     Kansas   v.  Colo- 

125;   46   L.  ed.   838:    where   the   bill  rado,  200   V.  S.  46,  117,  118,  51   L. 

was    eventually    dismissed,    without  ed.  956,  983. 

prejudice  to  the  right  of  the  plain-  10  Kansas  v.   Colorado.   206    V .   K. 

tiff    to    institute    new     proceedings  46,  86,  51  L.  ed.  956,  970. 

whenever      it     shall      appear      that  M  Louisiana   v.   Texas,    176   U.   S. 

through   a  material   increase   in   the  1,  44  L.  ed.  347.    Supra,  §  3. 

depletion   of  the  waters  of  the  Ar-  !2  Cherokee   Nation   v.   Georgia,   5 

kansas  by  Colorado,  its  corporations  Pet.   1,  8  L.  ed.  25. 

or  citizens,  the  substantial  interests  §   105.     l  Art.  III.,  §  2. 

of  Kansas  are  being  injured  to  the  2Chisliolm  v.  Georgia,  2  Dall.  419, 

extent    of    destroying    the    equitable  1   L.  ed.  440. 

apportionment    of    benefits    between  3  See   Elliott's  Debates.      In   Hans 

the   two    States    resulting   from    the  v.   Louisiana.    134  I'.   S.   1,  Bradley, 


388 


LIABILITY  TO  SUIT. 


[§  105 


and  laws  of  the  United  States.4  It  has  been  suggested,  but  not 
decided,  that,  in  a  case  arising  under  the  Fourteenth  Amend- 
ment, the  inhibition  of  the  Eleventh  Amendment  may  not 
applv.5  It  has  been  said:  "The  Constitution,  with  its 
amendments,  is  construed  as  one  instrument,  and  the 
Eleventh  Amendment  cannot  be  applied  to  nullify  the  power 
conferred  on  Congress  to  regulate  commerce  among  the  sev- 
eral States.  It  is  not  a  barrier  to  judicial  investigation  to  as- 
certain whether  other  provisions  of  the  Constitution  have  been 
disregarded  by  State  action." 6  A  corporation  chartered  by 
Congress  cannot  sue  a  State.7  An  action  at  law  or  a  suit  in 
equity  or  in  admiralty,  against  a  municipal  corporation,8  or 
against  a  county,9  or  any  other  political  subdivision  of  a  State,10 
is  not  a  suit  against  a  State  and  a  State  statute  cannot  divest 
a  Federal  court  of  jurisdiction  over  such  a  suit.11  Where  a 
State  statute  authorizes  suits  against  the  State  only  in  a  State 
court,  the  District  Courts  of  the  United  States  have  no  juris- 
diction.12 An  action  against  a  corporation,  such  as  a  railroad 
company,  all  the  stock  of  which  is  owned  by  a  State,  is  not  an 
action  against  a  State.13  A  State  agricultural  college  may  be 
sued  for  a  tort.14     It  has  been  held  at  circuit,  that  a  crossbill 


J.,  speaking  for  the  court,  said 
that  Chisholm  v.  Georgia  was  erro- 
neously  decided. 

4  Hans  v.  Louisiana,  134  U.  S.  1, 
33  L.  ed.  842;  North  Carolina  v. 
Temple,  3  34  U.  S.  22,  33  L.  ed.  849. 

5  Perkins  v.  Northern  Pac.  Ry. 
Co.,  155  Fed.  445,  447:  Ex  parte 
Young.  209  U.  S.  123,  150,  52  L.  ed. 
714.  725.  13  L.R.A.(N.S.)  932,  14 
Ann.  Gas,  764. 

6  Illinois  Cent.  R.  Co.  v.  Mis- 
>issi]ipi  Railroad  Commission,  C.  C. 
A.,  13S  Fed.  327,  331;  per  Shelby, 
J.  See  also  Southern  Ry.  Co.  v. 
Greensboro  Ice  &  Coal  Co.,  134  Fed. 
82. 

7  Smith  v.  Reeves,  178  U.  S.  436, 
44  L.  ed.   1140. 

8  Camden  Interstate  Ry.  Co.  v. 
Catlettsburg,  129  Fed.  421  ;  U.  S.  v. 
Tort  of  Portland,  147   Fed.  865. 


9  Lincoln  County  v.  Liming,  133 
U.  S.  529,  33  L.  ed.  766. 

10  Hopkins  v.  Clemson  Agricul- 
tural College  of  South  Carolina,  221 
U.  S.  636,  55  L.  ed.  890. 

11  Lincoln  County  v.  Luning,  133 
U.  S.  529,  33  L.  ed.  766. 

12  Smith  v.  Reeves,  178  U.  S.  436, 
44  L.  ed.  1140;  Smith  v.  RacklifFe, 
C.  C.  A.,  87  Fed.  964. 

13  Southern  Ry.  Co.  v.  North  Car- 
olina R.  Co.,  81  Fed.  595,  599,  600; 
Siinonton,  J.:  "When  the  State 
entered  into  this  enterprise  with 
private  persons,  she  did  not  carry 
into  it  her  functions  of  sover- 
eignty; but  stripped  herself  of 
them." 

14  Hopkins  v.  Clemson  Agricul- 
tural College  of  South  Carolina,  221 
I  .  S.  (136,  55  L.  ed.  890.  But  a 
State  court  has  held  that  an  action 


§  105] 


STATE   AS   DEFENDANT. 


389 


mav  be  filed  against  a  State,  which  has  brought  an  original 
bill;15  but  it  seems  that  no  affirmative  judgment  can  be  ren- 
dered against  the  State  in  such  case.16  It  has  been  held  at  cir- 
cuit: that  after  the  removal  of  a  suit  brought  by  a  State,  an 
injunction  mav  be  granted  to  stay  further  proceedings  in  the 
State  court  therein.17  A  State  may  waive  its  exemption  from 
suit.18  An  appearance  by  the  State  attorney  general,  "for  and 
on  behalf  of  the  State."  under  statutory  authority  was  held  to 
be  a  waiver,  by  the  State,  of  its  immunity  from  suit.19  When 
the  statute  creating  a  State  board  makes  it  a  body  corporate, 
with  power  to  sue  and  be  sued  without  limitations,  the  State 
waives  its  immunity  so  far  as  such  board  is  concerned.20  A 
statute  providing  that  a  State  officer  should  be  made  a  party 
defendant  to  all  actions  to  set  aside  tax  sales  of  land  held  as 
State  tax  land,  was  held  not  to  be  a  waiver,  by  the  State,  of  its 
constitutional  immunity  from  suit  in  a  State  court.21  It  has 
been  held  that  the  defense  that  the  defendant  is  a  State,  which 
cannot  be  sued  without  its  consent,  may  be  raised  for  the  first 
time  upon  an  appeal.22 

Where,  in  the  regular  course  of  judicial  administration, 
property  of  the  State,  or  in  which  the  State  has  an  interest,  has 
come  under  the  control  of  the  court,  without  being  forcibly 
taken  from  the  possession  of  the  government ;  the  court  will  pro- 
ceed to  discharge  its  duty  in  regard  to  the  same ;  and  the  State, 
if  it  choose  to  come  in  as  plaintiff,  as  in  prize  cases,  or  to  inter- 


against  a  State  industrial  school  in 
Alabama  is  an  action  against  the 
State.  Alabama  Girls'  Industrial 
School  v.  Reynolds.  143  Ala.  579,  42 
So.  114. 

15  Port  Royal  &  A.  Ry.  Co.  v. 
South  Carolina.  60  Fed.  552.  See 
the  Siren,  7  Wall.  152,  154,  19  L.  ed. 
129.  130.     Supra,  §  95. 

16  Reeside  v.  Walker,  11  How. 
(U.  S.),  272,  13  L.  ed.  693;  New 
York  v.  Dennison,  cS4  N.  Y.  272* 

17  Abeel  v.  Culberson,  56  Fed. 
329.     See  infra,  §§  268.  284,  361. 

18Gunter  v.  Atlantic  Coast  Line 
R.  R.  Co.,  200  U.  S.  273.  50  L.  ed. 
477 :    Interstate    Const.    Co.    v.    Re- 


gents   of    the    University    of   Idaho, 
199  Fed.  509. 

19  Gunter  v.  Atlantic  Coast  Line 
R.  R.  Co.,  200  U.  S.  273,  50  L.  ed. 
477.  See  Cutting  v.  Kansas  City 
Stock  Yards  Co.,  183  U.  S.  79.  114. 
46  L.  ed.  92,  110. 

20  Interstate  Const.  Co.  v.  Regents 
of  the  University  of  Idaho,  199  Fed. 
509. 

21  Smith  v.  Reeves,  178  U.  S.  436. 
46  L.  ed.  1140;  Chandler  v.  Dix,  194 
U.  S.  590,  48  L.  ed.  1129. 

22  Alabama  Girls'  Industrial  School 
v.  Reynolds,  143  Ala.  579,  42  So. 
114. 


390 


LIABILITY  TO  ST  IT. 


[§  105 


veno  in  other  cases  where  it  has  a  lien  or  other  claim  upon 
the  property,  will  be  permitted  so  to  do,  subject,  however,  to  the 
State's  rights  and  will  receive  the  same  consideration  as  those 
of  any  other  party  interested  in  the  matter,  and  will  so  far  as 
its  rights  in  such  property  are  concerned  be  subjected  in  like 
manner  to  the  judgment  of  the  court.23 

( iases  have  often  arisen  where,  although  a  State  was  not  a 
party  to  the  record,  it  had  rights  which  it  claimed  would  be  af- 
fected by  the  determination  of  the  suit  before  the  court.  To 
determine  accurately  the  jurisdiction  of  the  Federal  court 
in  such  cases  has  been  a  very  difficult  and  delicate  matter; 
and  the  questions  which  thus  continually  arise  are  hard  to 
answer.  The  fact  that  a  State  is  not  named  as  a  party  to  the 
record  does  not  of  itself  remove  a  case  from  the  terms  of  the 
Eleventh  Amendment.24  Whether  a  State  is  an  actual  party 
in  the  sense  of  the  prohibition  must  be  determined  by  a  con- 
sideration of  the  nature  of  the  case  as  presented  by  the  whole 

l  25 

record. 

An  action  at  common  law  against  a  public  officer  who  is  sued 
as  an  individual  and  justifies  under  the  authority  of  the 
State,  is  usually  held  to  be  an  action  against  the  State.26 
To  make  out  his  defense,  he  must  show  that  his  authority  was 
sufficient  in  law  to  protect  him.27  It  has  been  so  held  of  an 
action  of  ejectment  against  a  State  officer,  who  held  land  in  the 
name  and  for  the  uses  of  the  State  ;28  even  when  the  defend- 
ant was  sued  as  comptroller  of  the  State ; 29  and  that  after  a 
judgment  in  ejectment  against  him,  another  State  officer  can- 


23  (lark  v.  Barnard,  108  U.  S.  43G, 
27  L.  ed.  780:  Cunningham  v.  Macon 
&  Brunswick  R.  Co..  109  U.  S.  44G, 
452,  27  L.  ed.  992.  994;  citing  The 
Si,,„.  7  Wall.  152,  157,  19  L.  ed. 
129;  The  Davis,  10  Wall.  15.  20,  19 
L.  ed.  875.  S77. 

24  Elliott  v.  Wiltz.  107  U.  S.  711, 
27  L.  ed.  448;  Cunningham  v.  Macon 
&  Brunswick  R.  Co..  109  U.  S.  446. 
27  L.  ed.  992;  Hagood  v.  Southern. 
117  U.  S.  52.  29  L.  ed.  805:  In  re 
Ayrrs.  12:3  U.  S.  443.  31  L.  ed.  216; 
Fitts  v.  McGhee,  172  ('.  S.  516,  43 
L.  ed.  535. 


25  Poindexter  v.  Greenhow,  114  U. 
S.  270.  287,  29  L.  ed.  185.  191;  In 
re  Avers.  123  U.  S.  443,  492.  29  L. 
ed.  185,  191;  Fitts  v.  McGhee,  172 
U.  S.  516,  43  L.  ed.  535. 

26  Cunningham  v.  Macon  &  Bruns- 
wick R.  Co..  109  U.  S.  4411.  452.  27 
L.  ed.  992.  994. 

27  Cunningham  v.  Macon  &  Bruns- 
wick *R.  Co..  109  U.  S.  446,  452,  27 
L.  ed.  992.  994. 

28Tindal  v.  Wesley.  167  U.  S. 
204.   42   L.   ed.   137. 

29  Saranac.  L.  &  T.  Co.  v.  Rob- 
erts,   us    Fed.   521. 


105] 


STATE    AS   DEFENDANT. 


301 


not  intervene  and  have  the  judgment  opened  upon  an  answer 
containing  the  same  defense.30  An  action  of  detinue  may  be 
maintained  against  a  State  officer,  to  recover  the  possession  of 
personal  property,  which  he  has  seized  under  State  authority.31 
A  State  officer  may  be  sued  in  trespass  for  the  seizure  of  per- 
sonal property  in  obedience  to  an  unconstitutional  statute  of 
the  State ; 32  but  an  action  against  a  State  treasurer,  to  recover 
taxes  illegally  exacted,33  and  an  action  against  a  County  Dis- 
pensary Board  to  recover  the  price  of  supplies,34  are  suits 
against  the  State,  and  cannot  be  maintained.  And,  it  has 
been  held,  that  a  State  officer  cannot  be  sued  for  damages  under 
the  Federal  anti-trust  law35  for  aiding  the  State  in  monopoliz- 
ing interstate  commerce.36  When  a  State  officer  has  a  well 
defined  duty  in  regard  to  a  specific  matter,  which  is  not  dis- 
cretionary, and  which  does  not  affect  the  general  powers  or 
functions  of  the  government ;  but  in  the  performance  of  which 
one  or  more  individuals  have  a  distinct  interest  capable  of 
enforcement  by  judicial  process,  a  writ  of  mandamus  will 
usually  issue  against  him ;  and  it  is  ordinarily  held,  that  an 
application  for  such  a  writ  is  not  a  suit  against  the  State : 37 
but  an  application  for  a  writ  of  mandamus,  to  compel  a  State 
officer  to  pay  money  out  of  the  treasury  of  a  State,  is  a  suit 
against  the  State  and  cannot  be  maintained.38 

''Courts  of  equity  proceed  upon  different  principles  in  regard 
to  parties." 39      A   suit  in  equity  cannot  be  maintained,   in   a 


30  Vance   v.   Wesley,   85   Fed.  357. 

31  Poindexter  v.  Greenhow,  114  U. 
S.  270,  20  L.  ed.  185. 

82  Virginia  Coupon  Cases,  114  U. 
S.  269,  20  L.  ed.  185;  McGahey  v. 
Virginia.  135  V.  S.  662.  684.  34  L. 
ed.  304.  312:  Scott  v.  Donald.  165 
U.  S.  58,  41  L.  ed.  032. 

33  Smith  v.  Reeves,  178  U.  S.  430. 
44  L.  ed.  1140. 

34  Carolina  Glass  Co.  v.  Murray. 
197  Fed.  302.  where  the  statute  (25 
St.  at  L..  South  Carolina,  p.  463) 
provided  for  a  purchase  in  the  name 
of  the  State  and  "that  the  State 
should  not  be  liable  on  any  contract 
for  the  purchase  thereof  beyond  the 


actual   assets  of  the  dispensary  for 
which  the  purchase  was  made." 

35  26  St.  at  L.  209. 

36  L'bwenstein  v.  Evans.  69  Fed. 
90S. 

37  Board  of  Liquidation  of  Mc- 
Comb,  92  U.  S.  531,  23  L.  ed.  1123: 
Cunningham  v.  Macon  &  Brunswick 
R.  Co.,  109  U.  S.  440.  453.  27  1..  ed. 
992,  994.  See  Rolston  v.  Missouri 
Fund  Commissions.  120  U.  S.  390, 
411.  30  L.  ed.  721,  728. 

38  Elliott  v.  Wiltz.  107  V.  S.  711. 
27    L.  ed.   448. 

39  Cunningham  v.  Macon  &  Bruns- 
wick R.  Co..  100  U.  S.  446,  456,  27 
L.   ed.   902,   995. 


392 


LIABILITY  TO  SUIT. 


[§  105 


case  where  the  State  would  be  an  indispensable  party  if  it  were 
an  individual  similarly  affected.40  Consequently,  a  suit  cannot 
be  maintained  against  the  officers  of  a  State,  to  compel  specific 
performance  by  them  of  its  contract  for  the  sale  of  land;41 
nor  for  the  reformation  of  such  a  contract ; 42  nor  to  compel 
its  officers  to  pay  out  of  the  money  in  its  treasury,  taxes  which 
have  been  assessed  for  the  purpose  of  paying  interest  upon  the 
plaintiff's  bonds,43  or  to  pay  out  of  such  treasury  any  money  in 
discharge  of  its  debts ; 44  nor  to  establish  a  claim  to  property 
held  by  its  officers  claiming  a  title  in  the  State  thereto;  al- 
though the  relief  prayed  is  a  declaration  that  a  sale,45  or  a 
deed  in  pursuance  of  a  sale,46  is  void ;  nor  to  compel  a  railroad 
company  to  pay  to  the  complainant  dividends  declared  upon 
shares  of  the  corporate  stock  standing  in  the  name  of  a  State ; 
nor  for  a  receiver  of  such  stock ;  nor  for  its  sale ; 47  nor  to  com- 
pel State  officers  to  redeem  certain  certificates  of  State  indebt- 
edness and  accept  the  same  in  payment  for  taxes ; 48  nor,  it  has 
been  held,  to  compel  a  State  officer  to  execute  a  trust  vested  by 


40  Louisiana  v.  Jumel,  ]07  U.  S. 
71],  27  L.  ed.  448;  Walsh  v.  Preston, 
109  U.  S.  297,  27  L.  ed  940;   Cun- 

* 

ningham  v.  Macon  &  Brunswick  R. 
Co.,  109  U.  S.  446,  450,  27  L.  ed. 
992;  Hagood  v.  Southern,  117  U. 
S.  52,  29  L.  ed.  805 ;  Rolston  v.  Mis- 
souri Fund  Com'rs,  120  U.  S.  390,  30 
L.  ed.  721 ;  Christian  v.  Atlantic  & 
X.  C.  R.  Co.,  133  U.  S.  233,  33  L.  ed. 
589;  Chandler  v.  Dix,  194  U.  S.  590, 
48  L.  ed.  1129;  Preston  v.  Walsh,  10 
Fed.  315;  Brown  University  v. 
Rhode  Island  College,  56  Fed.  55; 
Morrill  v.  American  Reserve  Bond 
Co.,  151  Fed.  305;  Sanders  v.  Sax- 
ton,  182  N.  Y.  477.  But  see  Swasey 
v.   N.  C.  R.  Co.,  1  Hughes,  17. 

41  Preston  v.  Walsh,  10  Fed.  315. 
See  Walsh  v.  Preston,  109  U.  S. 
297,  27  L.  ed.  940;  Jobe  v.  Ur- 
quhart,  OS  Ark.  525,  136  S.  W.  663. 

42  .lobe  v.  Urquhart,  98  Ark.  525, 
136   S.   W.   663. 

43  Louisiana  v.  Jumal,  107  U.  S. 


711,  27  L.  ed.  448.  It  has  been  held, 
however,  that  a  State  treasurer  may 
be  compelled  to  deliver  to  receivers 
of  a  corporation,  securities  depos- 
ited with  him,  to  secure  perform- 
ance of  the  contracts  of  such  com- 
pany. Morrill  v.  American  Re- 
serve Bond  Co.,  151  Fed.  305. 

44  Ibid. 

45  Cunningham  v.  Macon  &  Bruns- 
wick R.  Co.,  109  U.  S.  446,  27  L.  ed. 
992;  (a  foreclosure  sale  to  the  gov- 
ernor) ;  Chandler  v.  Dix,  194  U.  S. 
590,  48  L.  ed.  1129;  (a  tax  sale 
where  the  auditor  general  was  made 
defendant  in  pursuance  of  a  State 
statute) . 

46  Sanders  v.  Saxton,  182  N.  Y. 
477,  1  L.R.A.(N.S.)  727,  108  Am. 
St.   Rep.   826. 

47  Christian  v.  Atlantic  &  N.  C. 
R.  Co.,  133  U.  S.  233,  33  L.  ed.  589. 
But  see  Swasey  v.  N.  C.  R,  Co.,  1 
Hughes,   17. 

48  Hagood  v.  Southern,  117  U.  S. 


§   105] 


STATE    AS   DEFENDANT. 


393 


the  statute  in  the  State  or  in  such  officer,  designated  by  his 
official  title;  49  nor  to  abate  a  nuisance  upon  property 
belonging  to  the  State,60  nor  to  restrain  the  infringe* 
ment  in  a  county  court  house  of  a  patent.51  But  a  State  is  not 
an  indispensable  party  to  a  suit  against  a  private  individual  to 
cancel  a  contract  between  him  and  that  State,  by  which  the 
State  acquired  lands  of  the  United  States  through  mistake  or 
fraud.52  It  seems,  that  a  State  is  not  an  indispensable  party 
to  a  stockholder's  suit,  to  enjoin  a  corporation  from  obeying  an 
unconstitutional  State  law.53  A  suit  cannot  be  maintained 
against  State  officers  for  an  injunction,  which  will  indirectly 
compel  the  specific  performance  of  a  contract  by  a  State  through 
the  prohibition  of  all  acts  which  constitute  breaches  of  the 
contract.54  It  has  been  held,  however,  that  the  State  governor 
and  the  commissioner  of  its  land  office  may  be  enjoined  from 
the  sale  and  delivery  of  patents  for  land,  which  the  State 
has  previously  granted  to  the  complainant.55     A  State  board 


52,  29  L.  ed.  805.  But  see  Rolston 
v.  Chittenden,  120  U.  S.  390,  30  L. 
ed.   721. 

49  Brown  University  v..  Rhode 
Island  College,  56  Fed.  55.  Contra, 
Morrill  v.  American  Reserve  Bond 
Co.,  151  Fed.  305,  (a  suit  to  compel 
the  State  treasurer  to  deliver  to  re- 
ceivers security  deposited  to  insure 
policy-holders  against  loss). 

50  Hopkins  v.  Clemson  Agricul- 
tural College  of  South  Carolina,  221 
U.  S.  636,  55  L.  ed.  890. 

51  McCreery  Engineering  Co.  v. 
Massachusetts  Fan  Co.,  180  Fed. 
115. 

52  Williams  v.  U.  S.,  138  U.  S. 
514,  516,  34  L.  ed.  1026,  1028. 

53  Cotting  v.  Kansas  City  Stock 
Yards  Co.,  183  U.  S.  79.  114,  46 
L.  ed.  92,  110;  Poor  v.  Iowa  Cent. 
Ry.  Co..  155  Fed.  226. 

54  In  Re  Avers,  123  U.  S.  443, 
502,  31  L.  ed.  216,  228:  Parsons  v. 
Slaughter.  63  Fed.  876:  Smith  v. 
Alexander.  146  Fed.  106.  An  in- 
junction   was    granted    against    the 


State  governor  and  attorney  general, 
to  prevent  their  aiding  in  the  viola- 
tion of  a  contract  by  a  railroad  com- 
pany, in  which  the  State  owned  all 
the  capital  stock.  Southern  Ry.  Co. 
v.  North  Carolina  R.  Co.,  81  Fed. 
595.  A  specific  act,  in  violation  of 
a  contract,  may  be  enjoined.  Da- 
vis v.  Gray,  16  Wall.  203,  21  L.  ed. 
447;  Pennoyer  v.  McConnaughy,  140 
U.  S.  1,  35  L.  ed.  363;  University  of 
the  South  v.  Jetton,  155  Fed.  182. 

55  Davis  v.  Gray,  16  Wall.  203, 
21  L.  ed.  447.  "It  is  clear  that  in 
enjoining  the  governor  of  the  State 
in  the  performance  of  one  of  his 
executive  functions,  the  case  goes 
to  the  verge  of  sound  doctrine,  if 
not  beyond  it,  and  that  the  principle 
should  be  extended  no  further." 
Miller,  J.,  in  Cunningham  v.  Macon 
&  Brunswick  R.  Co..  109  U.  S.  446. 
453,  27  L.  ed.  992.  995.  The  orig- 
inal case  was  followed,  however,  in 
Pennoyer  v.  McConnaugliy.  140  U. 
S.  1,  35  L.  ed.  363;  s.  c.  43  Fed. 
196,  339. 


39-t  LIABILITY   TO  SLIT.  [§     105 

has  been  enjoined  from  exchanging  new  State  bonds  for  a 
class  of  bonds  previously  issued,  as  to  which  the  statute  did  not 
authorize  such  an  exchange.56  An  injunction  was  granted 
against  a  State  treasurer  forbidding  him  from  paying,  to  any- 
one but  the  plaintiff  the  income  of  a  fund,  to  which  the  plain- 
tiff had  a  contractual  right.57  To  prevent  irreparable  injury, 
an  injunction  may  be  granted  against  a  State  officer,  to  prevent 
him  from  making  a  trespass  by  seizure  of  personal  property  in 
obedience  to  an  unconstitutional  State  statute ; 58  even  when 
acting  under  the  orders  of  the.  State  court  in  a  case  of  which  the 
Federal  court  had  prior  jurisdiction;59  from  infringement  of 
the  copyright  of  an  edition  of  the  State  statutes  under  express 
legislative  authority ; 60  from  revoking  a  license  to  transact 
business  in  the  State,  which  has  been  issued  to  a  foreign  cor- 
poration.61 or  from  annulling  the  franchise  of  a  corporation, 
in  pursuance  of  an  unconstitutional  State  statute ; 62  but  not, 
it  has  been  held,  from  refusing  to  reissue  an  annual  license  to 
a  foreign  corporation,  unless  it  complies  with  the  terms  of  a 
statute  which  it  claims  is  unconstitutional ; 6S  from  levying 
an  illegal  tax ; 64  or  making  an  illegal  assessment  for  taxation.65 
But  where  the  defendant  had  no  authority  to  compel  the  pay- 
ment of  the  tax  and  had,  previous  to  the  suit,  performed  the 
last  act  within  his  official  functions  in  connection  with  such 
collection ;  it  was  held,  that  the  suit  was  one  against  the  State 
and  could  not  be  maintained.66  It  has  been  held :  that  a  Fed- 
eral court  of  equity  has  no  jurisdiction  to  enjoin  State  officers, 
acting  under  a  State  statute,  from  issuing  a  certificate  of  nomin- 

56  Board    of    Liquidation    v.    Mc-       Ry.    Co.    v.   Ludwig,    156    Fed.    152; 
Comb,  92  U.  S.  531,  23  L.  ed.  023.       Chicago,    R.    I.    &    P.    Ry.    Co.    v. 

57  President,  etc.,  of  Yale  College       Swanger..l57  Fed.  783. 

v.  Sanger,   62   Fed.  177.     See  Chaf-  ^.Chicago,  R.  I.  &  P.  Ry.  Co.  v. 

fraix    v.    Board    of    Liquidation.    11  Ludwig.   156   Fed.   152. 

Fed.  03S.  ^  Manchester     Fire     Ins.     Co.     v. 

58  scott  v.  Donald.  165  U.  S.  107,  Herriott.  01   Fed.  711,  716. 

41  L.  ed.  648.  64  Osborne    v.    Bank    of   U.    S.,    9 

59  In  Re  Tyler,  149  U.  S.  164.  ::7        Wheat.  738.  6  L.  ed.  204. 

L.  ed.  689.  65  Fnion   Pac.  Ry.  Co.   v.   Alexan- 

60  Howell   v.   Miller,   C.   C.   A..   91        der,   113   Fed.  347. 

Fed.  129.     But  see  supra,  §  100.  66  Coulter  v.  Weir,  C.  C.  A.,  127 

61  Met.   Life   Ins.    Co.   v.    McNall,       Fed.  897. 
81    Fed.    888;    Chicago.   R.   I.   &    P. 


105] 


STATE    AS   DEFENDANT. 


395 


a'tion  to  a  candidate  for  Representative  in  Congress,  or  to 
require  a  State  officer  to  certify  the  nomination  of  a  certain 
candidate  for  such  office.67  A  suit  may  be  maintained  to  en- 
join the  State  Attorney,68  or  any  prosecuting  officer,69  or  other 
State  officer,  except  possibly  the  State  governor,  or  State  judges. 
or  to  enjoin  a  State  board,70  from  bringing  suits,  whether  civil 
or  criminal,  in  its  courts,  in  pursuance  of  a  State  statute,  which 
is  unconstitutional ;  or  from  enforcing  the  order  of  a  State 
board  in  pursuance  of  such  a  statute;71  or  to  enjoin  a  State 
railroad  commission  from  suing  to  recover  penalties  for  the 
violation  of  an  order  made  by  it,  which  was  void  as  a  regula- 
tion of  interstate  commerce.72     It  has  been  held  that  a  Federal 


67  Anthony  v.  Burrow,  329  Fed. 
783. 

68  Smyth  v.  Ames,  169  U.  S.  466, 
42  L.  ed.  819;  Cotting  v.  Kansas 
City  Stock  Yards  Co.,  383  U.  S.  79, 
46  L.  ed.  92;  Prout  v.  Starr,  188  U. 
S.  537,  47  L.  ed.  584:  Ex  parte 
Young,  209  U.  S.  123,  52  L.  ed.  714; 
Hunter  v.  Wood,  209  U.  S.  205,  52 
L.  ed.  747;  Reagan  v.  Farmers'  L. 
&  T.  Co.,  154  U.  S.  362,  38  L.  ed. 
1014;  St.  Louis  &  S.  F.  R.  Co.  v. 
Hadley,  161  Fed.  410;  Western 
Union  Tel.  Co.  v.  Julian.  169  Fed. 
166.  The  late  decisions  have  over- 
ruled a  number  of  cases  to  the  con- 
trary. It  was  held  in  1899:  that 
such  a  suit  could  not  be  maintained 
in  a  case  where  the  defendants  were 
not  specially  charged  with  the  exe- 
cution of  an  unconstitutional  stat- 
ute, and  were  not,  under  the  au- 
thority of  the  same,  committing 
or  about  to  commit  some  specific 
wrong  or  trespass,  to  the  injury  of 
the  plaintiff's  rights.  Fitts  v.  Mc- 
Ghee,  172  U.  S.  516,  529.  43  L.  ed. 
535,  541;  Ball  v.  Rutland  R.  Co.,  93 
Fed.   513. 

69  Herndon  v.  Chicago.  Rock  Is- 
land &  Pad.  Ry.  Co..  218  U.  S;  135, 
54  L.  ed.  970;  St.  Louis  ,V  S.  F.  R. 
Co.  v.  Allen,  181    Fed.  710. 


70  Smyth  v.  Ames,  169  U.  S.  466, 
42  L.  ed.  819;  University  of  the 
South  v.  Jetton,  155  Fed.  182.  ap- 
proved as  to  this,  reversed  upon  an- 
other point,  208  U.  S.  489,  52  L.  ed. 
584.  Scully  v.  Bird,  209  U.  S.  481, 
52  L.  ed.  899.  Western  Union  Tel. 
Co.  v.  Andrews.  216  U.  S.  165.  54  L. 
ed.  430;  Herndon  v.  Chicago,  Rock 
Island  &  Pac.  Ry.  Co.,  218  U.  S.  135, 
54  L.  ed.  970;  St.  Louis  &  S.  F.  R. 
Co.  v.  Hadley,  161  Fed.  419:  Cen- 
tral of  Georgia  Ry.  Co.  v.  Railroad 
Commission  of  Alabama.  161  Fed. 
925;  Kansas  Natural  Gas  Co.  v. 
Haskell,  172  Fed.  545;  St.  Louis  & 
S.  F.  R.  Co.  v.  Allen.  181  Fed.  710: 
Louisville  &  N.  R.  Co.  v.  Railroad 
Commission  of  Alabama.  101  Fed. 
757.  An  individual  may  be  enjoined 
from  suing,  to  recover  a  penalty  or 
damages  under  a  State  statute, 
which  is  unconstitutional.  McNeil 
v.  Southern  Ry.  Co.,  202  U.  S.  543, 
50  L.  ed.   1142. 

71  Smyth  v.  Ames,  169  U.  S.  466, 
42  L.  ed  819;  Herndon  v.  Chicago, 
Rock  Island  &  Pac.  Ry.  Co..  218  C. 
S.  135,  54  L.  ed.  970. 

72  McNeill  v.  Southern  Ry,  Co., 
202  U.  S.  543.  50  L.  ed.  1142:  affirm- 
ing Southern  Ry.  Co.  v.  Greensboro 
Ice   &    Coal    Co..    134    Fed.   82;    Cen- 


396 


LIABILITY  TO  SUIT. 


[§  1<W 


court  cannot  enjoin  either  criminal  or  civil  proceedings  pend- 
ing in  the  State  court  when  the  bill  is  filed.73  The  earlier  de- 
cisions hold:  that  a  suit  cannot  be  maintained  to  enjoin  a  State 
attorney  general,  or  other  prosecuting  officer,  from  bringing 
suits  to  enforce  a  State  statute,  the  constitutionality  of  which 
is  conceded  by  the  plaintiff.74  In  two  State  courts,  it  has  been 
held:  that  a  taxpayer's  bill  can  be  brought  to  prevent  the  pay- 
ment of  money  from  the  State  treasury,  under  an  unconstitu- 
tional law.75  It  seems :  that  affirmative  relief  will  not  be  grant- 
ed to  compel  a  State  officer  to  perform  an  act  forbidden  by  a 
State  statute ;  even  if  such  statute  is  unconstitutional.76 

The  Judicial  Code  provides:  "No  interlocutory  injunction 
suspending  or  restraining  the  enforcement,  operation,  or  exe- 
cution of  any  statute  of  a  State  by  restraining  the  action  of  any 
officer  of  such  State  in  the  enforcement  or  execution  of  such 
statute  or  in  the  enforcement  or  execution  of  an  order  made 
by  an  administrative  board  on  commission  acting  under  and 
pursuant  to  the  statutes  of  such  State,  shall  be  is- 
sued or  granted  by  any  justice  of  the  Supreme  Court, 
or  bv  anv  District  court  of  the  United  States,  or 
by  any  judge  thereof,  or  by  any  circuit  judge  acting  as  dis- 
trict judge,  upon  the  ground  of  the  unconstitutionality  of  such 
statute,  unless  the  application  for  the  same  shall  be  presented 
to  a  justice  of  the  Supreme  Court  of  the  United  States,  or 
to  a  circuit  or  district  judge,  and  shall  be  heard  and  deter- 
mined by  three  judges,  of  whom  at  least  one  shall  be  a  justice 


tr.al  of  Georgia  Ry.  Co.  v.  Railroad 
Commission  of  Alabama,  161  Fed. 
025;  Louisville  &  N.  R.  Co.  v.  Rail- 
road Commission  of  Alabama,  191 
Fed.  757. 

73  St.  Louis  &  S.  F.  R.  Co.  v. 
Allen,  181  Fed.  710,  citing  U.  S.  R. 
S.,  §  720,  Comp.  St.  1901,  p.  581. 
See  infra,  §§  270,  271.  Scully  v. 
Bird,  209  U.  S.  481,  52  L.  ed.  899. 

74Harkrader  v.  Wadley,  172  U. 
S.  14S,  169,  43  L.  ed.  399;  Arbuckle 
v.  Blackburn,  C.  C.  A.,  1  Li  Fed. 
616;  Morenci  Copper  Co.  v.  Freer. 
127  Fed.  199.  Where  State  oLicers. 
under  a  statute  which  was  constitu- 


tional, denied  the  complainant  the 
equal  protection  of  the  laws  by  an 
arbitrary  discrimination  against  it, 
upon  its  application  for  a  racing 
license  the  court  held,  that  it  had 
jurisdiction  to  grant  an  injunc- 
tion. Douglas  Park  Jockey  Club  v. 
Grainger,  146  Fed.  414. 

75  Lynn  v.  Polk,  76  Tenn.  121, 
123,  125;  Butler  v.  Ellerbe,  44  S.  C. 
256,  276,  283. 

76  Cunningham  v.  Macon  &  Bruns- 
wick R.  Co..  109  U.  S.  446,  453.  454, 
27  L.  ed.  992,  994.  995:  Pennoyer  v. 
M<-i  onnau°hy,  140  U.  S.  L  35  L.  ed. 
363. 


§    105]  STATE   AS   DEFENDANT.  397 

of  the  Supreme  Court,  or  a  circuit  judge,  and  the  other  two 
may  be  either  circuit  or  district  judges,  and  unless  a  majority 
of  said  three  judges  shall  concur  in  granting  such  application. 
Whenever  such  application  as  aforesaid  is  presented  to  a  jus- 
tice of  the  Supreme  Court,  or  to  a  judge,  lie  shall  immediately 
call  to  his  assistance  to  hear  and  determine  the  application  two 
other   judges:      Provided,   however,    That   one   of   such   three 
judges  shall  be  a  justice  of  the  Supreme  Court,  or  a  circuit 
judge.     Said  application  shall  not  be  heard  or  determined  be- 
fore at  least  five  days'  notice  of  the  hearing  has  been  given 
to  the  governor  and  to  the  attorney  general  of  the  State,  and  to 
such  other  persons  as  may  be  defendants  in  the  suit:    Provided, 
That  if  of  opinion  that  irreparable  loss  or  damage  would  re- 
sult to  the  complainant  unless  a  temporary  restraining  order 
is  granted,  any  justice  of  the  Supreme  Court,  or  any  circuit 
or  district  judge,  may  grant  such  temporary  restraining  order 
at  any  time  before  such  hearing  and  determination  of  the  ap- 
plication for  an  interlocutory  injunction,  but  such  temporary 
restraining  order  shall  remain  in  force  only  until  the  hearing 
and  determination  of  the  application  for  an  interlocutory  in- 
junction upon  notice  as  aforesaid.     The  hearing  upon  such  ap- 
plication for  an  interlocutory  injunction  shall  be  given  preced- 
ence and  shall  be  in  every  way  expedited  and  be  assigned  for 
a  hearing  at  the  earliest  practicable  day  after  the  expiration 
of  the  notice  hereinbefore  provided  for.     An  appeal  may  be 
taken  direct  to  the  Supreme  Court  of  the.  United  States  from 
the  order  granting  or  denying,   after  notice  and  hearing,  an 
interlocutory  injunction   in  such  case."77     It  is  further  pro- 
vided, That  if  before  the  final  hearing  of  such  application  a  suit 
shall  have  been  brought  in  a  court  of  the  State  having  jurisdic- 
tion thereof  under  the  laws  of  such  State  to  enforce  such  stat- 
ute or  order,  accomplished  by  a  stay  in  such  State  court,  of  pro- 
ceedings under  such  statute  or  order  pending  the  determination 

77  §   266,   36   St.   at  L.   1087.     As  road   Commission,   Chicago   B.  &   Q. 

amd.  by   Act   of   March   4,    1013,  P.  R.  Co.  v.  Oglesby,  198  Fed.  153,  was 

L.    No.    445.      This   amendment   was  not     a     State     statute     within     the 

necessary    because    of    decisions    of  meaning   of   this  law,   although   the 

the  Circuit  Courts  which   held  that  Federal    court    took    jurisdiction    to 

a  city  ordinance.  Spefry  &  Hutchin-  set   it   aside   upon   the  ground   that 

son  Co.  v.  City  of  Tacoma,  100  Fed.  it  was  a  law  of  the  State. 
682,   cr  the  order   of  a   State  Rail- 


398  LIABILITY  TO  SUIT.  [§    106 

of  such  suit  by  such  State  court,  all  proceedings  in  any  court  of 
the  United  States  to  restrain  the  execution  of  such  statute  or 
order  shall  be  stayed  pending  the  final  determination  of  such 
suit  in  the  courts  of  the  State.  Such  stay  may  be  vacated  upon 
proof  made  after  hearing  and  notice  of  ten  days  served  upon 
the  attorney  general  of  the  State  that  the  suit  in  the  State  courts 
is  not  being  prosecuted  with  diligence  and  good  faith." 
It  has  been  held  that  the  statute  forbids  a  single  judge 
from  denying  a  motion  for  such  an  injunction,  and  even  from 
vacating  such  a  restraining  order  previously  issued  by  him- 
self,78 and  that  the  Supreme  Court  may  issue  a  mandamus  to 
set  aside  such  second  order  when  made  by  him.79  It  has  been 
held  that  mandamus  will  not  issue  to  compel  a  court  of  first 
instance  to  dismiss  a  case,  in  which  it  is  claimed  that  a  State  is 
a  party,  when  such  court  has  held  that  the  State  is  not  an  indis- 
pensable party  to  the  suit,80  and  that  where  the  Supreme  Court 
takes  cognizance  of  a  case  dismissed  as  against  a  State  for  want 
of  jurisdiction,  it  cannot  determine  whether  the  bill  should 
have  been  dismissed  because  not  presenting  a  case  for  equita- 
ble relief.81  The  Supreme  Court  of  the  United  States  has  held 
that  no  such  injunction  should  be  granted  against  the  enforce- 
ment of  an  order  of  the  State  court  until  such  appeals  there- 
from as  are  authorized  by  the  State  statute  have  been  exhaust- 
ed.82 It  has  been  held  that  where  a  supersedeas  upon  such  an 
appeal  is  denied,  the  injunction  may  be  granted.83  and  where 
the  court  was  of  the  opinion  that  the  statutory  power  of  review 
was  unauthorized  by  the  State  constitution,  such  an  injunction 
was  sustained.84 

§  106.  Suits  against  infants.  An  infant  when  sued  should 
be  provided  by  the  court  with  a  guardian  ad  litem.1  For  an 
omission  to  appoint  a  guardian  ad  litem,  a  decree  against  an 

78  Ex    parte    Metropolitan    Water  83  Love    v.    Atchison.    T.    &    S.    F. 
Co..  220  lT.  S.  539,  55  L.  ed.  575.              Ry.  Co.,  C.  C.  A..  185  Fed.  321;   af- 

79  [bid.  tinning  Atchison.  T.  &  S.  F.  Ry.  Co. 
«0  Ex   parte   Nebraska,   209   U.   S.       v.  Love.   174  Fed.  50. 

436,  52  L.  ed.  870.  84  Kankakee  v.  Am.  Water  Supply 

81  Scully   v.   Bird.   200    U.   S.   481,  Co.,  C.  C.  A..  100  Fed.  757. 

52  L.  ed.  800.  §   lOti.     l  Rule  70:   Bank  ot   I'.  ,S. 
82Prontis  v.   Atlantic   Coast   Line  v.   Ritchie,  8   Pet.    12S.   144.  8  L.  ed. 

Co.,  211   U.  S.  210,  29  Sup.  Gt.  (57,       890,  897.     See  Woolridge  v.  McKen- 

53  L.  ed.  150.  na,  S  Fed.  050,  070. 


§  ioc] 


SUITS   AGAINST   IXFAXTS. 


399 


infant  will  be  reversed  upon  appeal.2  An  application  for  the 
appointment  of  a  guardian  ad  litem  for  an  infant  should  be 
made  by  petition,  which,  if  the  appointment  of  a  particular 
person  is  desired,  should  state  his  name  and  his  consent  to  act 
as  such.3  The  court  will  usually  appoint  the  infant's  general 
guardian  or  "the  nearest  relative  not  concerned,  in  point  of 
interest,  in  the  "matter  in'  question ;" 4  but  the  choice  of  the 
guardian  rests  in  the  sound  discretion  of  the  court,  and  only  in 
an  extraordinary  case  would  a  decree  be  reversed  for  an  error  in 
this  respect.5  The  interests  of  an  infant  are  guarded  jealously 
by  the  court,  which  will  not  hold  him  bound  by  any  admission 
made  by  him  or  in  his  behalf,  whether  in  the  pleadings6  or 
otherwise ;  7  but  a  decree  by  consent  as  the  result  of  a  compro- 
mise approved  by  the  court  may  be  made  without  a  reference 
to  a  master,8  although  the  safer  practice  is  to  have  it  referred. 
The  guardian  ad  litem  is  responsible  for  the  propriety  of  the 
defense.9  ■  He  must  pay  costs  for  scandal ; 10  and  he  may  be  re- 
moved by  the  court  at  any  time.11  This  may  be  done  if  he  is 
unable  or  unwilling  to  pay  the  expenses  of  the  defense.12  If  no 
person  of  substance  is  willing  to  serve  for  the  infants,  the  court 
"might  suspend  further  proceedings  until  it  could  send  a  next 
friend  or  guardian  ad  litem  to  the  State  courts  having  juris- 
diction of  their  person  and  property,  to  secure  such  guardian- 


2  0'Hara  v.  MacConnell,  93  U.  S. 
150,  23  L.  ed.  840. 

3  Rhinelander  v.  Sanford,  3  Day 
(U.  S.  C.  C.  D.  Conn.),  279. 

4  Bank  of  U.  S.  v.  Ritchie,  8  Pet. 
128,  144,  8  L.  ed.  890,  897;  Story's 
Eq.  PI.,  §  70;  Calvert  on  Parties, 
Book  III.,  cli.  xxxi. 

5  Bank  of  U.  S.  v.  Ritchie,  8  Pet. 
128.  144,  8  L.  ed.  890,  897.  See 
Kingsbury  v.  Buckner,  134  U.  S. 
650,  33  L.  ed.   1047. 

6  Bank  of  U.  S.  v.  Ritchie,  8  Pet. 
128,  144,  145,  8  L.  ed.  890,  897; 
Walton  v.  Coulson,  1  McLean,  125; 
S.  c,  Coulson  v.  Walton,  9  Pet.  62, 
84,  9  L.  ed  51,  00;  Hawkins  v.  Lus- 
conibe,  2  Swanst.  375.  390;  Savage 
v.  Carroll,  1  Ball.  &  B.  5.i3. 


?Legard  v.  Sheffield,  2  Atk.  377; 
White  v.  Miller,  158  U.  S.  128,  39 
L.  ed.  921.  See  also  Kingsbury  v. 
Buckner,  134  U.  S.  650,  33  L.  ed. 
1047:  Clarke  v.  Clarke,  178  U.  S. 
186,   44   L.  ed.   1028. 

8  Thompson  v.  Maxwell  L.  G.  & 
Ry.  Co.,  168  U.  S.  451,  42  L.  ed.  539. 

9  Knickerbacker  v.  De  Freest,  2 
Paige   (X.  Y.),  304. 

lODaniell's  Ch.  Pr.  (2d  Am.  ed.; 
204. 

H  Russell  v.  Sharpe,  1  Jac.  &  W. 
482. 

12  Ferguson  v.  Dent,  15  Fed.  771, 
772. 


400 


LIABILITY  TO  SUIT. 


[§  107 


ship  as  would  protect  them."  13  Infants  may  defend  in  forma 
■pauperis;  but,  except  under  extraordinary  circumstances, 
their  expenses  will  not.  be  advanced  out  of  a  fund  in  the  hands 
of  a  receiver.14  A  guardian  ad  litem  may  recoup  his  expenses 
from  the  infant's  property.15  According  to  the  English  prac- 
tice, an  appearance  could  be  entered  for  an  infant  before  a 
guardian  ad  litem  had  been  appointed.16  It  is  the  safer  prac- 
tice in  this  country  to  serve  the  infant  with  a  subpoena  be- 
fore the  appointment  of  a  guardian  ad  litem j1"1  but  where  a 
guardian  ad  litem  has  been  appointed,  it  will  be  presumed,  in 
the  absence  of  evidence  to  the  contrary,  that  the  infant  was 
duly  served.18  A  decree  against  an  infant  is  void  unless  he 
has  been  personally  served  with  process,  although  a  general 
guardian  has  appeared  for  him.19  except  in  cases  mentioned  in 
section  738  of  the  Revised  Statutes.20 

§  107.  Suits  against  idiots,  lunatics,  and  persons  of  weak 
mind.  Idiots  and  lunatics  defend  by  guardians  ad  litem,  ap- 
pointed for  them  by  the  court.1  A  committee  will  usually  be 
appointted  guardian  ad  litem  of  the  person  in  his  charge,2 
unless  his  interest  be  opposed  to  that  of  the  idiot  or  lunatic,3 
or  perhaps  if  he  refuse  to  answer  or  defend.4  The  guardian 
ad  litem  is  usually  joined  with  the  idiot  or  lunatic  as  co-defend- 
ant.5 It  was  held  by  Chancellor  Kent,  that  in  Xew  York  the 
committee  appointed  in  accordance  with  statute,  and  not  the 
idiot  or  lunatic,  is  the  proper  party  to  the  bill ; 6  but  the  rule 
in  the  Federal  courts  seems  to  be  otherwise.7     "A  person  re- 


13  Ferguson  v.  Dent,  15  Fed.  771, 
772. 

14  Ferguson  v.  Dent.  15  Fed.  771. 

15  Ferguson  v.  Dent,.  15  Fed.  771. 
772. 

16  Braithwaite's  Pr.  322. 

17  Smith  v.  Reid.  134  X.  Y.  568; 
Settlemier  v.  Sullivan.  97  U.  S.  444, 
24   L.  ed.   1110:    infra,  §   163. 

18  Sloane  v.  Martin.  77  Hun  (N. 
Y.1.  249:    infra,  §   163. 

19  N.  Y.  Life  Ins.  Co.  v.  Bangs, 
103  U.  S.  435.  26  L.  ed.  580. 

20  infra,    §    166. 


§  107.  1  Rule  70;  Harrison  v. 
Rowan.  4  Wash.  C.  C.  202,  207. 

2  2  Story's  Eq.  PL,  §  70:  West- 
comb  v.  Westcomb,  1  Dick,  233; 
Harrison  v.  Rowan,  4  Wash.  C.  C. 
202.    207. 

SSnel]  v.  Hyat.  1  Dick.  287; 
Story's  Eq.  PL,  §   70. 

4  Lloyd  v.  ,  2  Dick.  46~0> 

5  Harrison  v.  Rowan.  4  Wash.  C. 
C.  202. 

6  Brasher's  Ex'rs.  v.  Van  Cort- 
landt.  2  Johns.  Ch.    (N.  Y.)    242. 

'Harrison  v.  Rowan,  4  Wash.  C. 
C.  202,  207. 


109] 


SUITS  AGAINST  FOREIGN  EXECUTORS. 


401 


duced  by  age  or  infirmity  to  a  second  infancy  may  defend  by 
guardian."8  Jt  is  said  that  the  answer  of  a  superannuated 
person,  put  in  by  guardian,  may  be  read  against  him  as  an 
answer  of  one  of  full  age  put  in  in  person ;  and  that  the  differ- 
ence in  this  respect  between  such  answer  and  that  of  an  infant 
put  in  by  guardian  is,  because  an  infant  improves  and  mends, 
and  therefore  is  to  have  a  day  to  show  cause  after  he  comes  of 
age ;  but  the  other  grows  worse,  and  is  to  have  no  day.9 

§  108.  Suits  against  married  women.  In  suits  against 
a  married  woman  by  a  third  person,  her  husband,  if  not  civilly 
dead  or  permanently  absent  from  the  State,  should  be  joined 
with  her  as  a  co-defendant;1  except  in  States  where  she  has 
the  same  rights  and  liabilities  as  a  spinster,2  or  when  she  is 
sued  in  a  representative  capacity.3  She  may,  however,  answer 
separately  from  her  husband.4  A  bill  filed  in  the  name  of  a 
married  woman  suing  alone,  may  be  amended  by  the  addition  of 
a  next  friend,  when  necessary.5 

§  109.  Foreign  executors  and  administrators  as  defend- 
ants. Foreign  executors  and  administrators  are  not  subject 
to  suit,1  unless  they  have  assets  within  the  jurisdiction  where 
the  suit  was  filed.2  In  that  case,  they  are  liable,  as  trustees,  to 
account  for  the  same,  to  those  entitled  thereto.3  But  a  Federal 
court  has  no  power  to  require  an  executor  or  administrator  to 
deliver  a  fund  to  an  administrator  appointed  in  another  State.4 


8  Markle  v.  Markle,  4  J.  Ch.  168. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
224.  225;  citing  Leving  v.  Caverly, 
Prec.   Cli.   229. 

§  108.  1  Story's  Eq.  PL,  §  71  ; 
Calvert  on  Parties,  Book  IIP,  ch. 
xxx ;  Hulnie  v.  Tenant,  1  Brown, 
Ch.  C.  16;  Taylor  v.  Holmes,  14 
Fed.  498.  514. 

2Lorillard  v.  Standard  Oil  Co., 
2  Fed.  902.  But  see  Taylor  v. 
Holmes,  14  Fed.  499,  514:  Douglas 
v.  Butler.  6  Fed.  228;  P.  S.  v.  Pratt 
Coal  &  Coke  Co.,  IS  Fed.  70S; 
OTIara  v.  MacGonnell,  93  P.  S.  150, 
23  L.  ed.  840. 

3  Moore  v.  Meynell,  2  Vein,  (ill, 
note. 

4  Duke  of  Chandos  v.  Talbot,  2 
P.  Wins.  372. 

Fed.   Prac.  Vol.  P— 26. 


5  Douglas   v.   Butler,   6   Fed.   228. 

§  109.  l  Vaughn  v.  Northrup,  15 
Pet.  1,  10  L.  ed.  639;  Courtney  v. 
Pradt,  196  PJ.  S.  89,  49  L.  ed.  398; 
s   c,  135  Fed.  818;  Lewis  v.  Parrish. 


C.    C.    A. 


Fed.    285;    Skiff    v. 


White,  127  Fed.  175;  Lawrence  v. 
Southern  Pac.  Co.  177  Fed.  547: 
Story's  Eq.  PL,  §   179. 

2  Sandilands  v.  Innes,  3  Sim.  303  , 
McNamara  v.  Dwyer,  7  Paige  (N. 
Y.),  239,  32  Am.  Dec.  027;  Campbell 
v.  Tousey,  7  Cow.   (N.  Y.)   64. 

3  Lewis  v.  Parish.  ( '.  Q,  -A..  115 
Fed.  285.  See  Columbia  Law  Lev., 
June  191 1.  quoted  in  X.  V.  L.  .1. 
June   8,    191  1. 

MVatkins  v.  Eaton,  C.  C.  A.,  183 
Fed.   384. 


CHAPTER  IV. 


PARTIES. 


§  110.  General  rule  as  to  parties.  In  ordinary  cases,  all 
persons  should  be  made  parties  to  a  suit  in  equity,  who  are 
directly  interested  in  obtaining  or  resisting  the  relief  prayed 
for  in  the  bill  or  granted  in  the  decree.1  If  interested  in  obtain- 
ing the  relief  prayed  for,  they  should  join  as  plaintiffs ;  unless 
some  refuse  to  appear  in  that  capacity,  when  the  rest  should 
make  them  defendants.2  This  rule  has  been  also  stated  by  the 
expressions :  that  "all  persons  interested  in  the  subject  of  the 
suit  should  be  before  the  court;"3  and  that  "all  persons  who 
have  in  the  object  or  objects  of  the  suit  an  interest  or  interests 
apparent  upon  the  record,  are  necessary  parties." 4 

"In  determining  who  are  proper  parties  to  a  suit,  courts  of 
equity  are  guided  by  two  leading  principles.  One  of  them  is  a 
principle  admitted  in  all  courts  of  justice  in  this  country,  upon 
questions  affecting  liberty,  or  life,  or  property;  namely,  that 
no  proceeding's  shall  take  place  with  respect  to  the  rights  of 
any  one,  except  in  his  presence.  Thus  a  decree  of  a  court  of 
equity  binds  no  one  who  is  not  to  be  regarded,  according  to  the 
rule  of  the  court,  either  as  a  party,  or  else  as  one  who  claims 
under  a  party,  to  the  suit.  The  second  is  a  principle  which  in 
this  country  is  peculiar  to  courts  of  equity ;  namely,  that  when 
a  decision  is  made,  it  shall  provide  for  all  the  rights  which  differ- 
ent persons  have  in  the  matters  decided.     For  a  court  of  equity 

§  110.     i  Calvert  on  Parties,  Book  3  Sir    William   Grant    in    Wilkina 

I,  ch.  i,  and  cases  there  cited.  v.  Fry,   1  Mer.  244,   202. 

2Hardirig    v.    Handy,    11    Wheat.  4  Calvert    on     Parties     (2d    ed.), 

103.  6  L.  ed.  420:  Wisner  v.  Barnet,  p.   13,   and   cases   there   cited.      Iron 

4  Wash.  C.  C.  631,  642;   Fallows  v.  Cliffs  Co.  v.  Xegaunee  Iron  Co.,  I9V 

Williamson,  11  Ves.  313;  Calvert  on  U.  S.  403.  40  L.  ed.  S36:   Clagett  v. 

Parties,    Book    T.    ch.    viii.      But    see  Duluth    Tp.,    143   Fed.   824;    holding 

Hie  Jin  v.  Marco.  5(j   Fed.  .")40.     For  that     an     injunction     restraining     a 

the    rule    in    patent    cases,    see    in-  municipal    corporation    from    buying 

fra,  §  44.  bonds    is    no    defense    to    an    action 

402 


§     HO]  PARTIES.  403 

in  all  cases  delights  to  do  complete  justice,  and  not  by  halves;5 
to  put  an  end  to  litigation,  and  to  give  decrees  of  such  a  nat.ire 
that  the  performance  of  them  may  be  perfectly  safe  to  all  who 
obey  them:  interest  reipublicce  tit  sit  finis  Jitium.     In  this  re- 
spect there  is  manifest  distinction  between  the  practice  of  a 
court  of  law  and  that  of  a  court  of  equity.     A  court  of  law  de- 
cides some  one  individual  question  which  is  brought  before  it ; 
a  court  of  equity  not  merely  makes  a  decision  to  that  extent, 
but  also  arranges  all  the  rights  which  the  decision  immediately 
affects.''6     Thus,  when  a  person  Avho  is  charged  with  the  pay- 
ment of  a  sum  of  money  is  surety  to  another,   the  principal 
must  be  joined  as  defendant  to  the  bill ;  as  in  the  case  of  a  suit 
against  an  heir  for  the  performance  of  a  covenant  by  his  an- 
cestor which  binds  him  as  well  as  the  ancestor's  personal  estate, 
when  the  personal  representative  must  also  be  joined.     For  "the 
court  of  equity  in  all  cases  delights  to  do  complete  justice,  and 
not  by  halves :  as,  first  to  decree  the  heir  to  perforin  this  cove- 
nant, and  then  to  put  the  heir  upon  another  bill  against  the 
executor  to  reimburse  himself  out  of  the  personal  assets,  which, 
for  aught  appears  to  the  contrary,  may  be  more  than  sufficient 
to  answer  the  covenant ;   and  when  the  executor  and  heir  are 
both  brought  before  the  court,  complete  justice  may  be  done  by 
decreeing  the  executor  to  perform  this  covenant  as  far  as  the 
personal  assets  will  extend,  the  rest  to  be  made  good  by  the  heir 
out  of  the  real  assets.     And  here  appears  no  difficulty  or  incon- 
venience in  bringing  the  executor  before  the  court.     On  the  con- 
trary, it  would  prevent  a  multiplicity  of  suits,  which  a  court 
of  equity  ought  to  do."7     The  equity  rules  now  provide:  "All 
persons  having  an  interest  in  the  subject  of  the  action  and  in 
obtaining  the  relief  demanded  may  join  as  plaintiffs,  and  anv 
person  may  be  made  a  defendant  who  has  or  claims  an  interest 
adverse  to  the  plaintiff.     Any  person  may  at  any  time  be  made 
a  party  if  his  presence  is  necessary  or  proper  to  a  complete  de- 
termination  of  the  cause.      Persons  having  a   united   interest 
must  be  joined  on  the  s&me  side  as  plaintiffs  or  defendants, 

against  it  by  a  bondholder,  who  was  6  Calvert    on     Parties     (2d.    ed)., 

not  a  party  to  that  suit.  pp.  2.  3. 

5  Knight    v.    Knight,    3    P.    Wms.  'Lord       Chancellor       Talbot       in 

333.  .  Knight    v.   Knight.   3   P.   Wms.   33], 

334. 


401 


PARTIES    WITH    XO    INTEREST. 


[§     HI 


but  when  any  one  refuses  to  join,  he  may  for  such  reason  be 
made  a  defendant."  8 

§  111.  Parties  with  no  interest  in  the  subject-matter  of 
the  suit.  As  a  general  rule,  no  person  can  be  made  a  party 
against  whom,  if  brought  to  a  hearing,  the  plaintiff  can  have  no 
decree.1  The  clerk  of  a  conrt  is  not  a  proper  party  to  a  suit 
to  enjoin  the  enforcement  of  a  judgment  entered  in  his  office.2 
The  English  practice  allowed  strangers  in  certain  cases  to  be 
made  parties  for  the  sake  of  discovery,  and  even  in  order  to 
mulct  them  with  costs.  In  a  suit  against  a  corporation,  its 
officers,  book-keeper,  or  members  might  be  made  parties  for  the 
sake  of  discovery  concerning  matters  which  had  come  to  their 
knowledge  while  transacting  the  business  of  the  corporation  ; 3 
but  not,  it  seems,  to  obtain  discovery  of  such  as  they  knew  only 
through  their  participation  in  its  formation.4  It  is  held  in  the 
Federal  courts  that  when  an  answer  under  oath  is  waived,  it  is 
improper  to  make  the  officers  of  a  corporation  parties  to  a 
suit  against  it,  if  no  relief  is  asked  against  them;  and  a  de- 
murrer by  them  to  such  a  bill  making  them  parties  defendant 
was  sustained.5  Officers  of  corporations,  who  have  taken  no 
part  in  an  unlawful  contract  that  it  has  made,  are  not  proper 
parties  to  a  suit  for  an  injunction  against  its  enforcement.6  It 
has  been  held  that  officers  of  a  corporation,  who  have  committed- 
no  acts  of  infringement  except  in  their  official  capacity,  can- 
not properly  be  made  defendants  to  a  suit  to  enjoin  the  in- 


8  Eq.  Rule  37. 

§3.11.  lWych  v.  Meal,  3  P. 
Wins.  310,  313,  note;  Dan.  Ch.  Pr. 
,2d  Am.  ed.  342.) 

2  Buckley  v.  U.  S.,  196  Fed.  42!). 

3\V\ch  v.  Meal,  3  P.  Wins.  310; 
Anon..  1  Vern.  117;  Fenton  v. 
Hughes,  7  Ves.  289;  Glyn  v. 
Soares,  1  Y.  &  C.  644;  Many  v. 
Beekman  Iron  Co.,  9  Paige  [N.  Y.] 
189;  Doyle  v.  San  Diego  L.  &  Tr. 
Co.,  43  Fed.  349;  Virginia  &  A.  Mill. 
Si  Mfg.  Co.  v.  Hale.  93  Ala.  .->42. 
«)  So.  256;  Continental  Nat.  Bank 
v.  Heihnan,  66  Fed.  184:  Consoli- 
dated   Brake-Shoe    Co.    v.    Chicago;, 


P.  &  St.  L.  Ry.  Co.,  69  Fed.  412; 
Calvert  on  Parties  (2d  ed.),  92-94. 
But  see  Boston  W.  H.  Co.  v.  Star 
R.  Co.,  40  Fed.  167;  Cleveland  F. 
&  B.  Co.  v.  U.  S.  Rolling  S.  Co.,  41 
Fed.  476. 

4  McComb  v.  Chicago,  St.  L.  * 
N,'.  0.  R.  Co.,  7  Fed.  426. 

s  Colonial  &  U.  S.  Mtg.  Co..  Ld., 
v.  Hutchinson  Mtg.  Co.,  44  Fed. 
219;  Matthews  &  W.  Mfg.  Co.  v. 
Trenton  L.  Co..  73  Fed.  212.  See 
Boston  W.  11.  Co.  v.  Star  Rubber 
Co..  40  Fed.   167. 

6TJ.  S.  v.  Standard  Sanitary  Mfg. 
Co.,  191   Fed.   172. 


Ill] 


PA  K  TIES. 


405 


fringement  of  a  patent,7  or  trademark,8  unless  the  corporation 
is  insolvent ; 9  or  unless  the  officers  took  part  in  the  formation 
of  the  corporation  to  continue  infringements  made  by  them- 
selves in  their  individual  capacity ; 10  or  under  other  special 
circumstances.11  Where  an  officer  of  a  corporation  lias  actively 
participated  in  a  tort,12  or  the  violation  of  a  contract  by  the  cor- 
poration,13 he  may  be  joined  with  the  latter  in  an  action  by  the 
party  injured.  Where  fraud  or  ultm  vires  is  charged  against 
them,  the  officers,  directors  and  attorneys,  of  a  corporation,  are 
proper,14  but  not   indispensable   parties.15      Stockholders   who 


7  Loomis-Manning  Filter  Co.  v. 
Manhattan  Filter  Co..  117  Fed.  325; 
Farmers'  Mfg.  Co.  v.  Spmks  Mfg. 
Co.,  119  Fed.  504;  Greene  v.  Buck- 
ley, 120  Fed.  955;  National  Casket 
Co.  v.  Stolts,  C.  C.  A.,  135  Fed.  534; 
(a  suit  against  the  agent  of  a  joint 
stock  association)  ;  Glucose  Sugar 
Refining  Co.  v.  St.  Louis,  S.  &  P. 
Co.,  135  Fed.  540;  Weston  El.  In- 
strument Co.  v.  Empire  Electrical 
Instrument  Co.,  C.  C.  A.,  177  Fed. 
1000.  Contra,  Peters  v.  Union  Bis- 
cuit  Co.,  120  Fed.  679,  685.  See 
Saxleliner  v.  Eisner,  C.  C.  A.,  147 
Fed.  189;  s.  c,  140  Fed.  938. 

8  Vassar  College  v.  Loose-Wiles 
Biscuit  Co.,  197  Fed.  982. 

9  Saxlehner  v.  Eisner,  140  Fed. 
938. 

10  Wm.  G.  Rogers  Co.  v.  Interna- 
tional Silver  Co.,  C.  C.  A.,  118  Fed. 
133;  Simplex  El.  Heating  Co.  v. 
Leonard,  147  Fed.  744. 

11  Westinghouse  El.  &  Mfg.  Co.  v. 
Mutual  Life  Ins.  Co..  129  Fed.  213; 
Simplex  El.  Heating  Co.  v.  Leon- 
ard. 147  Fed.  744;  Weston  EI.  In- 
strument Co.  v.  Empire  Electrical 
Instrument  Co..  C.  C.  A.,  177  Fed. 
1006. 

12  Saxlehner  v.  Eisner.  140  Fed. 
938;  Favorite  v.  Cottrill,  62  Mo. 
App.  119;  Peck  v.  Cooper,  112  111. 
192,  54  Am.  Rep.  231  ;  Cameron  v. 
K-C  Com.  Co.,  22  Montana  312,  56 


Pac.  358.  44  L.R.A.  508,  74  Am.  St. 
Rep.  602.  It  has  been  held  that 
directors  of  a  corporation  cannot  be 
held  individually  liable  for  the  in- 
fringement of  a  patent  by  the  com- 
pany merely  because  they  have 
signed  a  paper  agreeing  to  save 
harmless  from  infringement  suits 
purchasers  who  had  previously 
bought  the  infringing  devices.  Am. 
Bank  Protection  Co.  v.  Electric 
Protection  Co.,  181  Fed.  350.  Where 
the  officers  of  a  corporation  were 
joined  with  it  as  defendants  to  a 
suit  for  the  infringement,  it  was 
held  that  they  were  not  liable  to 
account  for  profits  realized  by  the 
corporation  alone.  McSherry  Mfg. 
Co.  v.  Dowagiac  Mfg.  Co.,  C.  C.  A., 
160  Fed.  948. 

13  United  Cigarette  Mach.  Co.  v. 
Winston  C.  Mach.  Co.,  C.  C.  A.,  194 
Fed.  947. 

14Ceer  v.  Mathieson  Alkali 
Works.  190  U.  S.  428.  436.  47  L.  ed. 
1122,  1126;  Ervin  v.  Oregon  Ry.  & 
Nav.  Co.,  27  Fed.  625;  Jones  v.  Mis- 
souri-Edison Electric  Co..  C.  C.  A., 
144  Fed.  765:  United  Cigarette 
Mach.  Co.  v.  Winston  C.  Mach.  Co., 
C.  C.  A..  194  Fed.  947:  Ferguson  v. 
Wilson.  L.  R.  2  Ch.  App.  77,  90: 
Clinch  v.  Financial  Corporation,  L. 
R.  4  Ch.   App.   117. 

15  Sidway  v.  Missouri  Ld.  &  L.  S. 
Co.,   116  Fed.  381:    Geer  v.  Mathie- 


400 


PAUTIES    WITH    NO   INTEREST. 


[§     HI 


have  not  taken  part  in  the  transactions  of  which  complaint  is 
made  are  improper  parties  defendant  to  a  suit  for  an  injunc- 
tion:16 not  even,  it  has  been  held,  in  a  stockholders'  suit,17  nor 
in  the  case  of  a  corporation  holding  a  majority  of  the  stock  of 
another  corporation,  which  has  taken  part  in  an  infringe- 
ment ; 18  but  they  may  be  joined  when  they  have  organized  the 
corporation  with  a  small  capital  for  the  purpose  of  the  infringe- 
ment.19 A  party,  with  whom  a  corporation  has  contracted  to 
make  the  article  which  is  charged  to  be  an  infringement  of  a 
patent,  and  another,  corporation,  with  whom  he  has  contracted 
to  have  the  same  made,  are  properly  joined  as  parties  defend- 
ant to  an  infringement  suit.20  A  party  cannot  be  made  defend- 
ant to  a  suit  because  he  has  contributed  to  the  defense  of  the 
same.21  Agents  to  sell,  auctioneers,  arbitrators,  and  attorneys, 
could,  under  the  former  practice,  be  made  defendants  for  the 
purpose  of  discovery  in  any  suits  against  their  principals  con- 
cerning transactions,  with  which  they  were  connected  ;  M  but  it  is 
now  held,  that  this  cannot  usually  be  done  where  their  principals 
are  peculiarly  responsible.23  And  in  a  few  cases  of  fraud  it 
has  been  held  that  persons  implicated  in  the  fraud  might  be 
made  parties  merely  to  make  them  liable  for  costs.24  An  Indian 
agent  is  a  proper,  although  not  an  indispensable  party,  to  a  suit 
to  determine  rights  under  leases  of  Indian  lands.25 


son  Alkali  Works,  190  U.  S.  428, 
436,  47  L.  ed.  1122,  1126;  Hatch  v. 
Chicago.  Rock  Island  &  Pac.  R.  R. 
Co..  6  Blatchf.  105.   114. 

16  Westinghouse  El.  &  Mfg.  Co. 
v.  Allis-Chalmers  Co.,  168  Fed.  91; 
Johns-Pratt  Co.  v.  Sachs  Co.,  C.  C. 
A.,  175  Fed.  70. 

17  McCrea  v.  McClenahan,  114 
App.  Div.   (X.  Y.),  70. 

18  Westinghouse  El.  &  Mfg.  Co.  v. 
Allis-Chalmers    Co.,    168    Fed.    91. 

19  Crown  Cork  &  Seal  Co.  v.  Brook- 
lyn Bottle  Stopper  Co.,  172  Fed. 
225:   s.  c,  190  Fed.  323. 

20  Nat.  Mechanical  Directory  Co. 
v.  Polk,  121    Fed.  742. 

21  Parsons  Xon-Skid  Co.  v.  E.  J. 
Willis  Co.,  176  Fed.  176. 

22  Fenton   v.  Hughes,   7    Yes.  288, 


36    App. 
v.   Stew- 


2S9 :  Dummer  v.  Corporation  of 
Chippenham,  14  Yes.  252;  Bowles 
v.  Stewart,  1  Scho.  &  Lefr.  209: 
Brady  v.  McCorker,  1  X.  Y.  214; 
s.  c,  1  Barb.  Ch.  343. 

23  Seiferd  v.  Mulligan. 
Div.  (X.  Y.)  33:  Bowles 
art,   1  Scho.  &  Lef.  209. 

2*Taylour  v.  Rochford,  2  Ves. 
Sen.  281 ;  Smith  v.  Green.  37  Fed. 
424;  Huggins  v.  King,  3  Barb.  (X. 
Y. )  617:  Hammond  v.  Hudson  R. 
I.  &  X.  Co.,  20  Barb.  (X.  Y.)  386; 
Pritchard  v.  Palmer.  SS  Hun.  412; 
Calvert  on  Parties  (2d  ed. ),  96.  and 
cases  cited.  See  Ervin  v.  Oregon 
Ky.  &   Xav.  Co..  27  Fed.  625. 

25  Texas  Co.  v.  Central  Fuel  Oil 
Co.,  C.  C.  A.,  194  Fed.  1. 


§   112] 


UNNECESSARY    PARTIES. 


407 


§  112.  Persons  who  on  account  of  their  interest  need  not 
be  made  parties  to  a  suit  in  equity.  jSTo  persons  should  be 
joined  as  parties  to  a  suit  in  equity,  either  as  co-plaintiffs  or 
co-defendants,  who  are  not  directly  interested  in  obtaining  or 
resisting  the  relief  prayed  for  in  the  bill  *  or  who  claim  the 
property  in  question  under  inconsistent  titles.2  Thus,  prior 
incumbrancers  should  not  be  made  parties  to  a  bill  for  the  fore- 
closure of  a  mortgage,3  unless  it  prays  for  a  receiver,4  or  seeks 
to  obtain  a  sale  of  the  entire  mortgaged  property  free  from  all 
liens,5  or  unless  "there  is  substantial  doubt  respecting  the 
amount  of  debts  due  prior  lien  creditors,"  in  which  ease  "there 
is  obvious  propriety  in  making  them  parties,  that  the  amount 
of  the  charge  remaining  on  the  land  after  the  sale  may  be  de- 
termined, and  that  purchasers  at  the  sale  may  be  advised  of 
what  they  are  purchasing;"6  or  unless  there  are  other  peculiar 
circumstances  making  it  necessary.  Xor  need  a  mortgagor  who 
has  sold  his  equity  of  redemption.7  or  a  guarantor  of  the  mort- 
gage, even  if  he  has  paid  interest,8  be  made  a  party  to  a  fore- 
closure, unless  relief  is  sought  against  him.9  When,  however, 
such  relief  is  sought  against  the  mortgagor  or  a  grantee  of  the 
equity  of  redemption  who  has  assumed  payment  of  the  mort- 
gage, all  grantees  who  have  made  such  an  assumption  should 
ordinarily  be  joined  as  defendants  in  order  that  their  respect- 
ive rights  may  be  determined.10     Lessees  are  not  necessarv,  al- 


§  112.  1  Calvert  v.  Parties  (2d 
ed.),  6;  Mare  v.  Malachy,  1  M.  & 
C.  559;  Seymour  v.  Farmers'  L.  fc 
T.  Co.,  C.  C.  A.,  128  Fed.  907. 

2  Calvert  on  Parties  (2d  ed.), 
105;  Marquis  Cholmondely  v.  Lord 
Clinton,  2  Jac.  &  W.  138;  Saumarez 
v.  Saumarez,  4  M.  &  C.  331 ;  Dial  v. 
Reynolds,  96  U.  S.  340,  24  L.  ed. 
(•44;   infra,  §  141. 

3Hagan  v.  Walker.  14  How.  29, 
37,  14  L.  ed.  312,  310:  Jerome  v.  Mc- 
Carter,  94  U.  S.  734,  24  L.  ed.  136; 
Nalle  v.  Young,  lfiO  U.  S.  624,  40  L. 
ed.  560. 

4  Miltenberger  v.  Logansport  Ry. 
Co.,  106  U.  S.  286,  306,  27  L.  ed. 
117,  125. 


5  Hagan  v.  Walker,  14  How.  29. 
14  L.  ed.  312;  Jerome  v.  McCarter, 
94  U.  S.  734,  735,  24  L.  ed.  136.  137; 
McClure  v.  Adams,  76  Fed.  899. 

6  Strong,  J.,  in  Jerome  v.  McCar 
ter,  94  V.  S.  734.  735,  736.  24  L.  ed. 
136,  137. 

'Kanawha  Coal  Co.  v.  Kanawha 
&  O.  C.  Co.,  7  Blatch.  391,  416: 
Grove  v.  Grove,  93  Fed.  865.  But 
see  Matcalm  v.  Smith,  6  McLean. 
416.      As  to   receivers,    infra,   §    113. 

8  Columbia  F.  &  Trust  Co.  v. 
Kentucky  U.   Ry.  Co..   60   Fed.  794. 

9  Avers  v.  Wisawall.  112  U.  S. 
187.  28  L.  ed.  693. 

10  Skinner  v.  Marker,  23  Colo. 
333:    s.    c.    48    Pac.    648.      But    see 


408 


PARTTES. 


[•§   112 


though  they  are  proper  parties  to  a  suit  to  foreclose  a  nlcirtggge 
prior  to  their  leases.11  or  to  foreelose  a  vendor's  lien.12  Where 
part  of  the  mortgaged  premises  had  been  sold  to  the  sovereign 
power,  which  refused  to  waive  its  exemption  from  suit,  and 
all  the  other  parties  in  interest  were  joined;  it  was  held.  that. 
the  court  could  except  the  land  so  conveyed,  decree  a  sale  of 
the  balance  and  enter  a  deficiency  judgment,  if  the  proceeds 
were  insufficient.13  To  a  snit  by  the  holder  of  bonds  secured 
by  a  trust  mortgage  to  recover  damages  from  the  trustee  for 
his  negligent  administration  of  the  trust,  the  mortgagor  need 
not  be  made  a  party,  but  it  has  been  held  that  the  bill  must  be 
filed  on  behalf  of  all  the  bondholders  and  not  merely  on  behalf 
of  those  who  are  joined  as  complainants.14  It  seems:  that  in  a 
suit  to  set  aside  attachments,  attaching  creditors,  who  have  no 
joint  interest  with  the  defendants,  may  be  omitted  if  their 
citizenship  will  oust  the  court  of  jurisdiction.15  Where  the 
receivers  of  a  corporation  had  made  an  absolute  assignment 
of  a  cause  of  action  to  the  complainant ;  it  was  held,  that  neither 
the  corporation  nor  its  receivers  were  necessary  parties  to  a 
bill  to  enforce  that  cause  of  action,  although  one  of  the  re- 
ceivers was  entitled  to  one-quarter  of  the  collection.16  The 
personal  representatives  of  a  deceased  partner  are  not  neces- 
sary parties  to  a  bill  to  vacate  a  decree  in  favor  of  the  partner- 


Kelly  v.  Ashford,  133  U.  S.  610. 
626,  33  L.  ed.  667.  674:  infra.  §  120. 
11  Tyler  v.  Hamilton.  62  Fed.  187. 
It  has  been  held  that  tenants  un- 
der leases  by  a  railway  company, 
subject  to  mortgages  of  the  prop- 
erty, are  not  necessary  parties  to 
a  foreclosure  suit,  and  that  their 
rights  are  therefore  extinguished 
by  the  foreclosure  sale  (Ibid.), 
and  that  when  all  the  property  is  in 
the  hands  of  the  receivers,  neither 
the  first  mortgagee,  the  mortgagor, 
nor  any  lessor,  is  a  necessary  party 
to  the  foreclosure  of  a  second  rail- 
road mortgage  covering  leased  lines. 
but  not  affecting  the  rights  of  the 
lessors.  <irand  Trunk  Ry.  Co.  v. 
Central  Vt.  R.  Co.,  88  Fed.  622. 


12  Brisco  v.  Minah  Consol.  Min. 
Co.,  82  Fed.  952.  It  was  held  in 
Mississippi,  where  a  mortgagor  had 
conveyed  land  to  the  children  of  his 
mortgagee,  that  the  latter  were  not 
necessary  parties  to  a  suit  by  the 
mortgagor  against  the  mortgagee 
for  an  injunction  and  an  account- 
ing. Lipscomb  v.  Jack  i  Miss., 
L896),  20  S.  R.  883. 

13  Kawananakoa  v.  Polyblank.  205 
U.  S.  34H.  51  L.  ed.  834. 

14  Frishmuth  v.  Farmers'  L.  &  T. 
Co..  0.5   Fed.  5. 

15  Watson  v.  Ronfils.  C.  C.  A..  1 1G 
Fed.  157.  160. 

16  Fidelity  &  Deposit  Co.  of  Mary- 
land v.  Fidelity  Trust  Co.,  143  Fed. 
152. 


§   112] 


UNNECESSARY    PARTIES. 


40!> 


ship.17  The  United  States  are  not  necessary  parties  to  a  suit 
by  a  materialman  upon  a  bond  given  to  the  Government  for  the 
benefit  of  the  plaintiff  and  persons  similarly  interested.18  So 
in  suits  for  specific  performance,  it  is  a  general  rule  that  none 
are  necessary  parties  hut  parties  to  the  contract,  or  thejr  repre- 
sentatives, including  in  a  proper  case  their  heirs20  and  dev- 
isees;21 unless  there  are  other  persons,  such  as  the  wife  of  the 
defendant.22  with  such  an  interest  in  the  contract  or  the  prop- 
erty agreed  to  be  sold  that  their  concurrence  is  necessary  to 
the  completion  of  the  title,  or  that  their  rights  would  be  preju- 
diced were  a  decree  made  in  their  absence,23  In  a  suit  to  en- 
force a  constructive  trust  in  certificates  of  the  stock  of  a  cor- 
poration, neither  the  corporation  nor  the  former  owner  of  the 
stock  is  a  necessary  party.24  In  a  suit  by  the  pledgee  of  cor- 
porate bonds  to  protect  the  security  from  waste,  seeking  a  re- 
ceivership, the  appointment  of  a  new  trustee  and  the  termina- 
tion of  the  company's  business,  the  pledgor  is  a  proper  party.20 
!NTor  need  the  assignor  of  the  whole  interest  in  a  thing  in  ac- 
tion be  made  a  party  to  a  suit  by  the  assignee ; 26  except  in 
the  case  of  a  suit  by  the  equitable  assignee  of  a  patent,27  or 


17  Perkins  v.  Hendryx,  149  Fed. 
526. 

18  Title  Guaranty  &  Trust  Co.  of 
Scranton,  Pa.  v.  Crane  Co.,  219  U. 
S.  24,  55  L.  ed.  72. 

19  Tasker  v.  Small,  3  M.  &  C.  63. 
68:  Calvert  on  Parties  (2d  ed.), 
P>ook  III,  ch.   xvii. 

20  Morgan's  Heirs  v.  Morgan,  2 
Wheals.  290,   4   L.  ed.   242. 

21  Woodward  v.  Davidson,  150 
Fed.    S40. 

22  Buck  v.  Buck.  11  Paige  (X. 
Y.),    170. 

23  Jones  v.  Lewis.  1  Cox.  Eq.  199; 
Evans  v.  Jackson.  8  Sim.  217;  Cal- 
vert on  Parties.  Book  III,  ch.  xvii. 
Where  the  contract  is  made  by  an 
agent  in  his  own  name  he  is  a 
necessary  party  to  a  suit  by  his 
principal  for  specific  performance. 
Pennsylvania  &  X.  J.  R.  Co.  v. 
Byerson.  36  X.  J.  Eq.  112,   116.     It 


has  been  held  that  in  such  a  case 
he  can  sue  without  joining  his  prin- 
cipal although  defendant  knew  that 
he  acted  as  an  agent  only.  Kellev 
v.  Tracy,  102  Mo.  522. 

24  Brissell  v.  Knapp,  155  Fed. 
809. 

25  State  Xat  Bank  v.  Syndicate 
Co.,   178   Fed.   359. 

26  Harris  v.  Johnston,  3  Cranch, 
311,  2  L.  ed.  450;  Boon  v.  Chiles.  S 
Pet.  532.  8  L.  ed.  1034:  Robertson 
v.  Carson,  19  Wall.  94.  22  L.  ed. 
178;  s.  c.  Chases'  Dec.  475:  Bates- 
ville  Institute  v.  Kaufl'man,  IS 
Wall.  151,  21  L.  ed.  775:  Fulham  v. 
McCarthy,   1   H.  L.  C.  703. 

27  Stimpson  v.  Rogers,  4  Blatchf. 
333:  North  v.  K.-r-lmw.  4  Blatchf. 
70:  Patterson  v.  Stapler.  7  Fed. 
210:  Goodyear  v.  Allen.  3  Fi.-dier. 
284.  To  a  suit  by  the  assignee  of 
an    applicant    for    a    patent    against. 


410 


PARTIES. 


[§  112 


copyright,28  or  trade-mark29  or  by  the  licensee,30  or  mortgagor 


the  applicant  and  a  corporation,  to 
which  the  patent  had  been  issued, 
later  applicants,  who  were  in  inter- 
ference with  the  first,  are  not  nec- 
essary  parties,  although  they  have 
:i--if;ned  their  applications  to  the 
same  company  and  received  stock 
in  return.  Thompson  v.  Automatic 
Fire  Protection  Co.,  397  Fed.  750. 
For  transactions  that  passed  the 
legal  title  see  Am.  Bank  Protection 
Co.  v.  City  Nat.  Bank  3  81  Fed. 
375. 

28  Colburn  v.  Duncombe,  9  Sim. 
151:  Chappell  v.  Purday.  4  Y.  & 
C.  485.  Calvert  on  Parties  (2d 
ed.).  315. 

29  A  singer,  who  receives  a  roy- 
alty on  the  number  of  mechanical 
records  of  his  song  that  are  sold, 
is  not  a  necessary  party  to  a  suit 
by  the  patentee  and  owner  of  the 
records  for  an  injunction  against 
the  sale  of  copies  made  by  a  re- 
production of  the  same.  Fonotipia 
Limited    v.    Bradley.    171    Fed.    951. 

30  Krauss  v.  Jos.  R.  Peebles  Sons 
Co..  58  Fed.  585. 

Waterman  v.  Mackenzie,  138  TJ.  S. 
252.  255.  250.  260,  261,  34  L.  ed.  923, 
925.  926,  927.  928,  per  Gray,  J.: 
"The  patentee  or  his  assigns  may, 
by  instrument  in  writing,  assign, 
grant  and  convey  either,  first,  the 
whole  patent,  comprising  the  exclu- 
sive right  to  make,  use  and  vend 
the  invention  throughout  the  Unit- 
ed States:  or.  second,  an  undivided 
part  or  share  of  that  exclusive 
right:  or.  third,  the  exclusive  right 
under  the  patent  within  and 
throughout  a  specified  part  of  the 
United  States,  R.  S.,  §  4898.  A 
transfer  of  either  of  these  three 
kinds  of  interests  is  an  assignment, 
properly  speaking,  and  vests  in  the 


assignee  a  title  in  so  much  of  the 
patent  itself,  with  a  right  to  sue 
infringers;  in  the  second  case, 
jointly  with  the  assignor;  in  the 
first  and  third  cases,  in  the  name 
of  the  assignee  alone.  Any  as- 
signment or  transfer,  short  of  one 
of  these,  is  a  mere  license,  giving 
the  licensee  no  title  in  the  patent, 
and  no  right  to  sue  at  law  in  his 
own  name  for  an  infringement. 
R.  S..  §  4919:  Gayler  v.  Wilder, 
10  How.  477,  494,  495,  13  L.  ed.  504, 
511.  512;  Moore  v.  Marsh,  7  Wall. 
515.  19  L.  ed.  37.  In  equity,  as  at 
law,  when  the  transfer  amounts  to 
a  license  only,  the  title  remains  in 
the  owner  of  the  patent  and  suit 
must  be  brought  in  his  name,  and 
never  in  the  name  of  the  licensee 
alone,  unless  that  is  necessary  to 
prevent  an  absolute  failure  of  jus- 
tice, as  where  the  patentee  is  the 
infringer,  and  cannot  sue  himself." 
Aflriance.  P.  &  Co.  v.  McCormick 
H.  M.  Co.,  C.  C.  A.,  56  Fed.  918; 
Littlefield  v.  Perry.  21  Wall.  205, 
22  L.  ed.  577.  Where  the  owner  of 
the  patent  has  been  enjoined  in  an- 
other jurisdiction  from  suing  al- 
leged infringers  of  the  same,  the  li- 
censee may  sue  alone.  Hurd  v. 
James  Goold  Co..  197  Fed.  756. 
''Any  rights  of  the  licensee  must 
be  enforced  through  or  in  the 
name  of  the  owner  of  the  patent, 
and  perhaps,  if  necessary,  to  pro- 
tect the  rights  of  all  parties, 
joining  the  licensee  with  him  as 
a  plaintiff.  R.  S..  §  4921;  Little- 
field  v.  Perry,  21  Wall.  205,  223, 
22  L.  ed.  577,  579;  Paper  Bag  Cases, 
105  U.  S.  766-771,  26  L.  ed.  959- 
961;  Birdsell  v.  Shaliol,  112  U.  S. 
485-487,  28  L.  ed.  768,  769.  And 
see  Renard  v.  Levinstein,  2  Hem.  & 


112] 


UNNECESSARY    PARTIES. 


411 


Mil.  G2S.  Whether  a  transfer  of  a 
particular  right  or  interest  under 
a  patent  is  an  assignment  or  a  li- 
cense does  not  depend  upon  the 
name  by  which  it  calls  itself,  but 
upon  the  legal  effect  of  its  provi- 
sions. For  instance,  a  grant  of  an 
exclusive  right  to  make,  use  and 
vend  two  patented  machines  within 
a  certain  district  is  an  assignment, 
and  gives  the  grantee  the  right  to 
sue  in  his  own  name  for  an  in- 
fringement within  the  district,  be- 
cause the  right,  although  limited  to 
making,  using  and  vending  two  ma- 
chines, excludes  all  other  persons, 
even  the  patentee,  from  making, 
using  or  vending  like  machines 
within  the  district.  Wilson  v. 
Rousseau,  4  How.  646,  686."  11  L. 
ed.  1143,  1159.  See  D.  M.  Sechler 
Carriage  Co.  v.  Deere  &  Mansur 
Co.,  113  Fed.  285.  "Where,  how- 
ever, the  patentee  reserved  the 
right  to  use  the  inventions  within 
the  territory,  for  a  specified  pur- 
pose, and  to  make  them  therein  for 
such  use  and  for  use  outside  of  the 
territory,  and  the  licensee  agreed 
not  to  lease  or  sell  any  part  of  the 
inventions  for  use  outside  of  the 
territory,  without  the  patentee's 
consent:  it  was  held,  that  the  li- 
censee could  not  sue  in  his  own 
name."  Bowers  Hydraulic  Dredg- 
ing Co.  v.  Vare,  112  Fed.  63.  "On 
the  other  hand,  the  grant  of  an 
exclusive  right  under  the  patent 
within  a  certain  district,  which 
does  not  include  the  right  to  make, 
and  the  right  to  use,  and  the  right 
to  sell,  is  not  a  grant  of  a  title  in 
the  whole  patent-right  within  the 
district,  and  is  therefore  only  a  li- 
cense. Such,  for  instance,  is  a 
grant  of  'the  full  and  exclusive 
right    to    make   and    vend'   within   a 


certain  district,  reserving  to  the 
grantor  the  right  to  make  within 
the  district  to  be  sold  outside  of  it. 
Gayler  v.  Wilder,  above  cited,  ID 
How.  477,  13  L.  ed.  504.  So 
is  a  grant  of  'the  exclusive  right 
to  make  and  use,'  but  not  to  sell, 
patented  machines  within  a  certain 
district.  Mitchell  v.  Hawley,  16 
Wall.  544,  21  L.  ed.  322.  So  is  an 
instrument  granting  'the  sole  right 
and  privilege  of  manufacturing  and 
selling'  patented  articles,  and  not 
expressly  authorizing  their  use,  be- 
cause, though  this  might  carry  by 
implication  the  right  to  use  articles 
made  under  the  patent  by  the  li- 
censee, it  certainly  would  not  au- 
thorize him  to  use  such  articles 
made  by  others.  Hayward  v.  An- 
drews, 106  U.  S.  672,  27  L.  ed.  271. 
See  also  Oliver  v.  Rumford  Chem- 
ical Works,  109  U.  S.  75,  27  L.  ed. 
8,62."  It  has  been  held:  that  an  al- 
legation that  a  patentee  assigned 
to  complainant  the  exclusive  right 
to  make,  use,  and  sell  for  use  with- 
in the  United  States  and  its  terri- 
tories and  foreign  possessions,  "in 
connection  with  wireless  telephone 
work  and  wireless  telephonic  com- 
munication only,  apparatus  and 
equipment  embodying  said  methods 
and  apparatus  under  the  patents 
hereinabove  mentioned.  or  any 
other  patent  or  patents  now  or 
hereafter  owned  or  controlled"  by 
the  assignor  or  his  assignee,  did 
not  show  a  conveyance  to  the  as- 
signee of  the  entire  monopoly 
granted  by  the  government  to  the 
patentee,  but  a  mere  license;  and 
hence  the  assignee  had  no  capacity 
to  sue  in  his  own  name  to  restrain 
infringers.  Do  Forest  v.  Collins 
Wireless  Telephone  Co.,  174  Fed. 
S21.     A   patent-right    is   incorporeal 


412 


PART  IKS. 


[§  13: 


bv  a  mortgage  duly  recorded  at  Washington,31  or  by  an  assignee 
under  an  assignment  still  executory,32  or  by  an  assignee,  such 
as  a  pledgee,  whose  assignor  has  an  equitable  interest  in  the 
property,33  when  it  is  the  safer  practice  to  join,  as  plaintiff  or 
defendant,  the  assignor,  licensor,  or  mortgagee,  as  the  case  may 
be.  The  exclusive  licensee  of  a  patent  for  a  specified  terri- 
tory has  the  implied  authority,  even  against  the  will  of  the 
owner,  to  join  him  as  a  co-complainant  in  a  bill  to  enjoin  an 
infringement.34     The  patentee  and  his  exclusive  licensee  may 


property,  not  susceptible  of  actual 
delivery  or  possession;  and  the  re- 
cording of  a  mortgage  thereof  in 
the  Patent  Office,  in  accordance 
with  the  act  of  Congress,  is  equiva- 
lent to  a  delivery  of  possession, 
and  makes  the  title  of  the  mort- 
gagee complete  towards  all  other 
persons,  as  well  as  against  the 
mortgagor.  .  .  .  The  necessary 
conclusion  appears  to  us  to  be  that 
Sliipman.  being  the  present  owner 
of  the  whole  title  in  the  patent  un- 
der a  mortgage  duly  executed  and 
recorded,  was  the  person,  and  the 
only  person,  entitled  to  maintain 
such  a  bill  as  this,  and  that  the 
plea,  therefore,  was  rightly  ad- 
judged good."  An  applicant  for  a 
patent  cannot  sue  for  an  injunction 
against  an  infringement  before  the 
patent  is  issued  to  him.  Standard 
Scale  &  Foundry  Co.  v.  McDonald, 
127  Fed.  709. 

31  Waterman  v.  Mackenzie.  138 
I  .  S.  252,  34  L.  ed.  923. 

32  Land  Co.  of  New  Mexico  v. 
Elkins.  20  Fed.  545. 

33  Hubbard  v.  Manhattan  Trust 
Co.,  C.  C.  A..  87  Fed.  51.  57:  West- 
ern Nat.  Bank  v.  Armstrong.  152 
U;  S.  340.  38  L.  ed.  470:  Ackerson 
v.  Long  Branch  &  L.  Co..  28  X.  J. 
Eq.  542:  Comptograph  Co.  v.  Uni- 
versal   Accountant    Mach.    Co.,    142 


Fed.  539.     Contra,   Walker   on   Pat- 
ents, §  400. 

34  Brush-Swan  El.  L.  Co.  v. 
Thomson-Houston  El.  Co.,  48  Fed. 
■224:  Brush  El.  Co.  v.  El.  Imp.  Co., 
49  Fed.  73:  Brush  El.  Co.  v.  Cali- 
fornia El.  L.  Co..  C.  C.  A.,  52  Fed. 
945:  Excelsior  W.  P.  Co.  v.  Allen. 
C.  C.  A.,  104  Fed.  553;  Havens  v. 
W.  R.  Ostrander  &  Co..  190  Fed. 
199.  It. was  held  in  Van  Orden  v. 
Nashville.  (57  Fed.  331.  that  the 
part  owner  of  a  patent  cannot  sue 
at  law  for  damages  caused  by  an 
infringement  without  joining  hi.-, 
fellow-owners  as  co-plaint  ill's,  and 
that  he  cannot  make  them  defend- 
ants when  they  refuse  to  sue. 
Where,  in  consideration  of  the  as- 
signment' of  applications,  the  as- 
signee agreed  to  prosecute  the  same 
and  also  proposed  interference  pro- 
ceedings between  them  and  a  patent 
issued  to  a  stranger,  together  with 
an  infringement  suit  against  the 
latter  in  case  patents  issued:  it  was 
held  that  the  assignor  was  not  lia- 
ble to  reimburse  the  assignee  for 
expenses  paid  in  such  prosecution, 
although  the  issue  of  the  patents 
was  refused  because  the  assignor 
refused  so  to  amend  his  application 
as  to  cancel  rejected  claims. 
Strauss  v.  Dilg.  140  App.  Div.  ( N. 
Y.)    424. 


§  112] 


UNNECESSARY    PARTIES. 


413 


join  in  a  suit  to  enjoin  the  infringement  of  a  patent,35  lint  tin- 
patentee  and  a  licensee  whose  license  is  not  exclusive  cannot..36 
Such  a  licensee  is  ordinarily  not  a  proper  party  plaintiff.37 
Where  the  bill  alleges,  that  the  licensee  has  an  interest  in  the 
inventions  which  is  capable  of  being  impaired  by  the  infrini;r- 
ment,  the  licensee  may  properly  be  joined  as  a  complainant.38 
A  former  licensee  cannot  join  as  a  co-plaintiff,  unless  all  subse- 
quent licensees  and  assignees  of  the  license  are  also  joined.39 
An  exclusive  licensee  need  not  ordinarily  be  joined  as  com- 
plainant with  the  patentee.40  When  the  patentee  sues  alone,  he 
cannot  recover  profits  which,  but  for  the  infringement,  would 
have  enured  to  the  sole  benefit  of  the  licensee.41  The  assignee 
of  the  whole  of  a  patent,  so  far  as  a  particular  territory  is 
concerned,  need  not  be  made  a  party  to  a  suit  by  the  assignor  to 
enjoin  infringements  elsewhere.42  It  has  been  held  that  an 
inventor,  who  has  assigned  his  application,  may  maintain  a 
suit  in  his  own  name  to  compel  the  issue  of  the  patent.43  It  has 
been  held  that  any  party  against  whom  an  order  fixing  rate- 
is  made  by  the  Interstate  Commerce  Commission,  may  apply 
to  the  proper  court  for  relief  without  joining  other  parties  to 
the  order,  since  the  injury  was  said  to  be  several  and  not  joint.44 
It  has  been  held  at  Circuit  that  a  tax  collector  is  not  a  proper 
party  to  a  bill  to  set  aside  a  conveyance  made  by  him.45  And, 
as  has  been  said  before,  no  persons  should  be  joined  as  plain- 


35  Ibid.,  Havens  v.  W.  R.  Ostran- 
der  &   Co.,  190  Fed.  199. 

36  Blair  v.  Lippincott  Gl.  Co.,  52 
Fed.  220. 

37  Ibid. 

38  Daimler  Mfg.  Co.  v.  Conklin, 
145  Fed.  955. 

39  Victor  Talking  Machine  Co.  v. 
Am.  Craphophone  Co.,  118  Fed.  50. 

40  Union  S.  &  S.  Co.  v.  Johnson 
R.  R.  Signal  Co.,  52  Fed.  S67 : 
Gayler  v.  Wilder,  10  How.  477,  13 
L.  ed.  504.  "In  the  case  of  Water- 
man v.  MacKenzie,  138  U.  S.  252, 
34  L.  ed.  923,  11  Supr.  Ct.  R.  334, 
the  Supreme  Court  held  that  a  li- 
censee might  sue  in  his  own  name 
when    it   was    necessary    to   prevent 


an  absolute  failure  of  justice.  This, 
is  the  effect,  I  take  it,  of  the  lan- 
guage -of  the  court  there  used."" 
Knowles.  I).  J.,  in  Brush  Fl.  Co. 
v.  California  E.  L.  Co.,  C.  C.  A.T 
52  Fed.  945.  961. 

41  Bredin  v.  Solmson.  145  Fed. 
944. 

42  Canton  S.  R.  Co.  v.  Kannebcvg,. 
51   Fed.  599.  600. 

«\V,.nde  v.  ITorine,  191  Fed.  f.20. 
Contra,  Smith  v.  Thompson.  177 
Fed.  721. 

44  Atlantic  Coast  Line  R.  Co.  v. 
Interstate  Commerce  Commission. 
194  Fed.  449. 

45  West  v.  Duncan,  42  Fed.  430. 


4U 


PAETIBS. 


[§    112 


tilfs.46  or  defendants,47  who  claim  the  property  in  question  un- 
der inconsistent  titles.  For  example,  a  mortgagee  cannot  main- 
lain  a  bill  against  the  mortgagor  for  a  foreclosure,  which  at 
the  same  time  seeks  to  enjoin  a  claimant  adverse  to  both  mort- 
gagor, and  mortgagee  from  asserting  his  title  to  the  mortgaged 
property.48  An  interest  in  the  question  of  law  involved  is  not 
sufficient  to  make  a  person  a  necessary  or  even  a  proper  party.49 
except  when  a  bill  of  peace  is  filed.  The  equity  rules,  fol- 
lowing the  English  Orders  in  Chancery,  also  provide  that  "in 
all  cases  in  which  the  plaintiff  has  a  joint  and  several  demand 
against  several  persons,  either  as  principals  or  sureties,  it  shall 
not  be  necessary  to  bring  before  the  court  as  parties  to  a  suit 
concerning  such  demand  all  the  persons  liable  thereto;  but  the 
plaintiff  may  proceed  against  one  or  more  of  the  persons  sever- 
ally liable."50  This  rule,  however,  only  applies  when  the  de- 
mand is  both  joint  and  several,  not  when  it  is  merely  joint;51 
and  when  one  of  two  or  more  jointly  and  severally  indebted 
is  the  principal  debtor,  to  whom  the  others  are  sureties,  it 
must,  it  seems,  always  be  joined  in  a  bill  filed  by  the  creditor  to 
enforce  a  security  against  either  of  the  latter.52  Concerning 
the  chancery  order  from  which  the  rule  was  copied.  Viee- 
Chancellor  Shadwell  said  that  it  "applied  to  cases  where  sev- 
eral persons  were  liable  in  different  characters, — that  is,  some 
as  principals  and  the  rest  as  sureties;  and  then  it  was  sufficient 
to  make  one  individual  of  each  class  a  party;  but  where  there 
was  only  one  principal  and  one  surety,  both  of  them  must  be 
made  parties.*' 53 


46  Marquis  Cholmondeley  v.  Lord 
Clinton.  2  Jac.  &  W.  1,  at  p.  135. 
Saumarez  v.  Saumarez,  4  M.  &  C. 
331,  336.  See  Parsons  v.  Lyman.  4 
Blatchf.  C.  C.  432:    infra.   §   141. 

47  Dial  v.  Reynolds.  0(>  U.  S.  340. 
24  L.  ed.  G44:   infra,  §   141. 

48  Ibid.  But  see  Hefner  v.  North- 
western Life  Ins.  Co..  123  U.  S.  747, 
31    L.  ed.  309. 

49  Valette  v.  Whitewater  Valley 
Canal  Co..  4  McLean.  102. 

50  Eq.  Rule  42:   copied  from  Rule 


51,  of  1842.  which  was  copied  from 
the   32d   Order    in   Chancery   of   An 
gust,    1841.      David    v.    McRae,    183 
Fed.  812. 

51  Pierson  v.  Robinson,  3  Swanst. 
139.   n. 

52  Robertson  v.  Carson.  19  Wall. 
94.  22  L.  ed.  178:  Wilson  v.  City 
Bank.  3  Sumn.  423:  Allen  v.  Houl- 
den.  ti  Reav.  148:  Pinkus  v.  Peters, 
5  Beav.  253. 

53  Lloyd  v.  Smith,  13  Sim.  457, 
458.  459. 


113] 


PERSONS  REPRESENTED. 


415 


§  113.  Cases  where  the  law  has  furnished  a  representa- 
tive. On  account  of  the  inconvenience  which  would  be 
caused  if  the  general  rule  were  enforced  in  all  cases,  there 
are  several  classes  of  exceptions  to  it.1  The  first  of  these 
exists  when  the  law  has  furnished  a  representative  of  the  inter- 
est in  question.  In  such  a  case,  those  whom  he  represents  are 
not  usually  necessary  parties  to  the  suit.2  The  equity  rules 
now  provide:  "Every  action  shall  be  prosecuted  in  the  name 
of  the  real  party  in  interest,  but  an  executor,  administrator, 
guardian,  trustee  of  an  express  trust,  a  party  with  whom  or  in 
whose  name  a  contract  has  been  made  for  the  benefit  of  another, 
or  a  party  expressly  authorized  by  statute,  may  sue  in  his  own 
name  without  joining  with  him  the  party  for  whose  benefit  the 
action  is  brought."  3  Thus,  until  they  have  distributed  the  deced- 
ent's estate,4  executors  and  administrators  are  deemed  suffi- 
ciently to  represent  all  legatees,  creditors,  and  next  of  kin  in 
suits  brought  by  or  against  them  in  their  representative  ca- 
pacitv,5  except  when  they  are  made  defendants  to  a  suit  by  a 
residuary  legatee  for  his  share  of  the  estate,6  or  when  the  rights 
of  the  legatees  or  next  of  kin  between  one  another  are  in  ques- 
tion.7 or  in  a  suit  to  obtain  a  construction  of  the  will ;  or  where 
they  are  sued  for  collusion  with  a  legatee  who  should  then  be 
made  a  party.9  or,  perhaps,  when  an  executor  or  adminis- 
trator is  charged  with  a  breach  of  trust  and  an  accounting  is 
required;  but  the  executors  do  not  represent  the  heirs  at  law 


§  133.  l  Wallworth  v.  Holt,  4  M. 
&  C.  619;  Powell  v.  Wright,  7  Beav. 
4-10. 

2  Calvert  on  Parties  (2d  ed.),  22. 
See  Hopkins  v.  Page,  2  Brock.  20, 
42. 

3Eq.  Rule,  37. 

4  Carey  v.  Roosevelt,  81   Fed.  608. 

5  Brown  v.  Dowthwaite,  1  Madd. 
448;  Potter  v.  Gardner,  12  Wheat. 
499,  6  L.  ed.  706;  Burton  v.  Smith, 
4  Wash.  C.  C.  522;  Dandridge  v. 
Washington's  Ex'rs,  2  Pet.  370, 
377,  7  L.  ed.  454,  457;  Wainwright 
v.  Waterman,  1  Ves.  Jr.  313;  Anon., 
12  Mod.  522;  Glover  v.  Patten,  165 
t.  S.  394,  41  L.  ed.  760. 


6  Atwood  v.  Hawkins,  Rep.  temp. 
Finch,  113;  Faithful  v.  Hunt,  3 
Anst.  751;  Calvert  on  Parties  (2d 
ed.),  20G,  20S.  But  see  tVTcArthur 
v.  Scott,  113  U,  S.  340,  345,  28  L. 
ed.  1015;  Martin  v.  Fort,  83  Fed- 
19. 

Hardenhergh,  94  Fed. 
v.    Smith,    C.    C.    A.r 


7  Kendall  v 
911;  Stevens 
126  Fed.  700. 

8  Stevens  v. 
Fed.    706.      Cf 
Fed.  417. 

9  Attorney-General 
Mos.  126. 


Smith,  C.  C.   A.,   120 
Toms    v.   Owen.    52: 


Wvnne, 


4:16  I'AHTIES.  [§     113 

in  a  suit  affecting  the  real  estate,10  and  the  devisees  were  held 
to  be  indispensable  parties  to  a  suit  to  foreclose  a  mortgage 
made  bv  an  executor.11  It  has  been  held  that  where  a  suit  is 
brought  to  determine  the  ownership  of  a  fund  in  the  hands  of 
the  trustee  of  an  intestate,  an  administrator  of  the  decedent's 
estate  must  first  be  appointed,  and  it  is  error  to  decree  that  the 
fund  be  paid  "to  such  person  as  may  hereafter  be  appointed  ad- 
ministrator," 12  So  a  bankrupt  or  insolvent  debtor 13  and  his 
creditors14  are  not  usually  necessary  parties  to  a  suit  brought 
by  or  against  his  trustee  or  assignee.  An  assignment  by 
the  owners  of  a  number  of  claims  against  the  same  party,  to  an 
attorney,  under  an  agreement  that  he  shall  receive  for  his  serv- 
ices a  certain  percentage  of  the  amount  collected,  will  support 
an  action  by  the  assignee  in  his  own  name  where  there  is  no 
agreement  that  he  shall  pay  the  costs  of  the  litigation.15  A 
stockholders'  agent,  elected  at  a  meeting  of  shareholders  in  pur- 
suance of  statute,  may  after  he  has  qualified  sue  on  their  be- 
balf  directors  to  recover  money  by  malfeasance  or  misfeasance 
upon  the  part  of  the  latter.16  It  has  been  held  improper  for  a 
creditor  of  an  estate  to  join  with  its  receiver  in  a  suit  concern- 
ing it.17  A  corporation  need  not  be,  although  it  usually  is, 
joined  as  a  co-defendant  to  a  suit  against  its  receiver  to  fore- 
close a  lien  upon  its  property  where  no  personal  relief  is  sought 
against  it.18  It  has  been  held  that  the  Comptroller  of  the 
Cureney  and  the  Treasurer  of  the  Tinted  States  are  not  neces- 
sary parties  to  a  suit  to  recover  from  the  receiver  of  a  national 
bank,  appointed  by  the  Comptroller,  the  amount  of  an  assess- 
ment erroneously  made  by  the  Comptroller,  paid  by  the  com- 
plainant to  the  receiver,  and  paid  by  him  into  the  Treasury.19 

10  Wooslin    v.   Cooper    (N.  J.   Ch  .  Calvert  on  Parties    (2d  ed.),  24. 
1897),    36    Atl.    281.      See    §     11').  14  Spragg  v.  Binkes,  5  Ves.  587. 
infra.      Hut    see   Alger  v.    Anderson,           15  Northwestern  S.  S.  Co.  v.  Ccfcli- 
78  Fed.  729,  733.  ran,  C.  C.  A.,  191    Fed.  146. 

11  Detweilter     v.     tfoldferbaum,    42  16  McKinnon    v.    Morse,    177    Fed. 
Fed.  337.  576. 

12  Road   v.  Bennett    (X.  J.   Errors  17  Dogpett  v.  Railroad  Co..  99   V. 
&    Vppeals,   1S97).  37  Atl.  75;   infra,  S.  72,  25  L.  ed.  301. 

S   126.  18  Central    Trust    Co.    v.    Chicago, 

13  Do  Wolf  v.  Johnson.    10  Wheat.       K.  &  T.   Ry.  Co..  54   Fed.  598. 

367,    384,    6    L.    ed.    343,    347:    Van  19  t'.iown    v.    Tillinghast,   84    Fed. 

Reimsdyk    v.    Kane.     1    Gall.    371;       17. 


§   113] 


PERSONS  REPRESENTED. 


417 


It  has  been  held  that  a  receiver  appointed  upon  a  creditor's 
bill  should  not  be  made  a  defendant  to  an  ancillary  foreclosure 
suit;  that  a  receiver  of  a  corporation  is  a  necessary  party 
to  a  suit  to  enforce  a  corporate  right  of  action ; 21  that  a  re- 
ceiver of  a  bank  is  a  proper,  but  not  a  necessary,  party  to  a 
suit  in  equity  instituted  before  his  appointment  to  recover  from 
the  bank  money  obtained  by  it  through  fraud;22  that  a  receiver 
is  an  improper  party  to  an  action  at  law  for  a  tort  committed 
before  his  appointment,23  but  that  he  is  a  necessary  party  to 
such  an  action  when  he  holds  a  policy  insuring  the  corporation 
from  loss  by  the  tort  and  the  plaintiff  has  joined  the  insurer 
with  the  receiver's  corporation  as  a  co-defendant;24  and  that 
he  and  the  corporation  may  be  joined  as  defendants  to  a  bill 
to  enjoin  infringements  of  a  patent  and  for  an  accounting  of 
the  profits  made  by  infringements  before  and  after  his  appoint- 
ment;  5  that  the  creditors  of  an  insolvent  bank  are  necessary 
parties  to  a  suit  by  a  stockholder  against  the  bank  and  its  re- 
ceiver to  have  his  certificate  cancelled;  26  and  that  after  the  dis- 
charge of  a  receiver  and  the  transfer  of  the  property  to  a 
corporation,  which  as  part  consideration  for  the  purchase, 
agreed  to  pay  all  valid  claims  against  the  receiver,  the  pur- 
chaser is  the  only  proper  defendant  to  a  suit  to  collect  such  a 
claim.27  It  has  been  held :  that  the  treasurer  of  a  corporation 
may  sue  his  predecessor  in  office  for  an  accounting  of  the  cor- 
porate funds,  without  joining  the  corporation.28  Ordinarily, 
a  corporation  represents  the  stockholders  thereof  in  all  liti- 
gation affecting  corporate  rights;29  and  when  a  statute  imposes 


20  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  &  K.  C.  R.  Co.,  82  Fed.  042. 

21  Porter  v.  Sabin,  149  U.  S.  473, 
37  L.  ed.  815.  But  see  Palestine 
W.  &  P.  Co.  v.  City  of  Palestine, 
91  Tex.  540,  40  L.R.A.  203:  s.  c, 
44  S.  \V.  814:   s.  c.  40  L.R.A.  203. 

22  Dfenton  v.  Baker,  C.  C.  A.,  79 
Fed.  189:  Speekart  v.  German  Nat. 
Bank.  85  Fed.  12. 

23  Northern  Pac.  R.  Co.  v.  Heflin, 
C.  C.  A..  S3  Fed.  93. 

24  Moore  v.  Los  Angeles  1.  &  S. 
Co.,  89  Fed.  73.  But  see  Palestine 
W.  &  P.  Co.  v.  City  of  Palestine,  91 

Fed.  Prac.  Vol.  L-  27. 


Tex.    540.    44    S.    W.    814:    s.    c,    40 
L.R.A.   203. 

25  Union  S.  &  S.  Co.  v.  Philadel- 
phia &   R.  R.  Co.,  69  Fed.  833. 

26  Dunn  v.  State  Board.  59  Minn. 
221,  61   N.  W.  27. 

27  Thompson  v.  Northern  Pae.  Ry. 
Co.,  93   Fed.  384. 

28  Hunter  v.  Robbins.  117  Fed. 
920. 

29  It  has  been  held  that  a  corpo- 
ration is  so  far  a  representative  of 
its  stockholders  that  none  of  them 
need  be  joined  in  a  suit  for  an  ac- 
counting,   under   a    lease    which    pro- 


418 


PARTIES. 


[§  113 


a  tax  upon  shares  of  its  capital  stock  and  directs  it  to  pay  the 
same,  it  may  sue  to  test  the  validity  thereof:30  hut  where 
a  question  arises  affecting  the  respective  rights  of  different 
classes  of  stockholders,  the  members  of  each  class  or  represen- 
tatives thereof,  as  well  as  the  corporation,  must  be  joined  in 
the  suit.31  In  a  suit  against  a  corporation  to  enforce  specific 
performance  of  a  contract  made  by  it  in  behalf  of  subsidiary 
companies,  which  it  controlled  through  ownership  of  their 
stock,  it  was  held  that  such  subsidiary  companies  were  not  in- 
dispensable, nor  even  necessary,  parties.32  It  has  been  held 
that  a  State  statute  authorizing  one  or  more  officers  of  an  un- 
incorporated association  to  represent  the  others  in  the  courts, 
when  suing  or  beino-  sued  about  a  matter  concerning  their 
common  interest,  will  be  followed  by  a  Federal  court  of  equity, 
and  the  members  conclusively  presumed  to  have  the  same  citi- 
zenship as  such  officers.33  In  suits  by  or  against  strangers 
affecting  the  partnership  property,  surviving  partners  need 
not  have  joined  with  them  the  personal  representatives  of  their 
deceased  associate.34  and  firm  creditors  may  proceed  directly 
against  the  personal  representative  of  a  deceased  partner  with- 
out asking  for  judgment  against  the  firm  or  the  surviving  part- 
ners, although  the  surviving  partners  must  be  made  parties, 
since  thev  are  interested  in  taking  the  account.35  It  has  been 
held  that  a  city  and  county  sufficiently  represents  gas  con- 
sumers within  their  territory  as  to  justify,  in  a  suit  in  Avhich 
the  former  are  made  parties  defendant,  an  injunction  against  the 


vides  for  the  payment  of  dividends 
directly  to  its  stockholders,  Pacific 
R.  of  Mo.  v.  Atlantic  &  P.  R.  Co., 
20  Fed.  277.  See  Witherbee  v. 
Bowles.  201  N.  Y.  427,  435;  Wcid- 
enfeld  v.  Northern  Pac.  R.  Co.,  C. 
C.  A..  12!)  Fed.  305,  311. 

30Cuinmings  v.  Nat.  Bank,  101 
U.  S.  153.  157,  25  L.  ed.  903;  San 
Francisco  Nat.  Bank  /.  Dodge,  197 
U.  S.  70.  75,  113,  49  L.  ed.  669: 
Charleston  Nat.  Bank  v.  Melton, 
171   Fed.   743. 

31  Baltimore,  C.  &  A.  Ry.  Co.  v. 
Godeffroy,  C.  C.  A.,  182  Fed.  525; 
Carpenter    v.    Knollwood    Cemetery, 


198   Fed.   297.      But   see   Witherbee 
v.  Bowles.  201   N.  Y.  427. 

32  Texas  Co.  v.  Central  Fuel  Oil 
Co..  C.  C.  A..  194  Fed.  1. 

33  Fargo  v.  Louisville,  N.  A.  k  C. 
Ry.  Co..  6  Fed.  787;  Whitman  v. 
Hubbell,  30  Fed.  SI;  Liverpool  Ins. 
Co.  v.  Massachusetts,  10  Wall.  566, 
19  L.  ed.  1029.  But  see  Chapman 
v.  Barney,  129  U.  S.  677,  32  L.  ed. 
800,  and  supra,  §  46. 

34  Pagan  v.  Sparks,  2  Wash.  C.  C. 
325. 

35  f.  S.  v.  Hughes,  161  Fed.  1021, 
1023;  Story  on  -Partnership,"  §  362. 


§    113]  PERSONS  REPRESENTED.  4:19 

latter,  although  not  formally  joined.36  The  United  States 
may,  without  joining-  the  allottee  Indians,  sue  to  set  aside  their 
conveyances  of  lands  within  the  statutory  period  of  restriction,37 
and  may  sue  upon  the  official  bond  of  the  clerk  of  a  Federal 
court  to  recover  deposits  made  by  litigants  as  security  for  costs 
without  joining  any  of  the  persons  entitled  to  share  in  the 
fund.38  The  English  rule  was  that  "a  court  of  equity  in  many 
cases  considers  the  tenant  in  tail  as  having  the  whole  estate 
vested  in  him.  at  least  for  the  purposes  of  suit;  and  for  these 
purposes  does  not  look  beyond,  the  estate  tail  in  a  suit  aiming 
by  the  decree  to  bind  the  right  to  the  land.1' 39  "Those  in  re- 
mainder were  considered  as  cyphers."40  "It  appears  that 
this  rule  was  originally  founded  upon  analogy  to  common  law. 
As  a  tenant  in  tail  might  bar  subsequent  remaindermen, — in 
fact,  might  at  any  moment  make  himself  master  of  the  entire 
estate, — it  was  considered  by  the  court  that  he  might  be 
assumed  to  offer  a  satisfactory  defense  for  all  those  subsequent 
interests.  The  court  has,  however,  gone  one  step  farther,  and 
has  treated  infants  as  sufficient  representatives  of  the  inherit- 
ance, although  they  are  unable,  by  reason  of  infancy,  to  bar  re- 
maindermen. In  truth  the  court  has  gone  to  the  full  extent 
which  is  requisite  for  convenience  in  practice."  41  It  has  been 
held  that  a  tenant  for  life  and  the  contingent  remainderman 
in  fee  may  represent  the  inheritance  in  a  bill  for  specific  per- 
formance, if  the  children  of  the  remainderman  will  inherit 
if  he  does  not.42  But  the  court  refused  to  decide  whether  a 
will  conveyed  a  fee  or  a  life  estate,  when  the  parties  were  not 
in  existence  who  would  take  the  remainder  if  the  estate  were 
for  life  only.43  Lord  El'don  said  that  in  most  cases  respecting 
trust  property  the  beneficiaries  of  the  trust  were  necessary 
parties.44  The  expression  naturally  suggests  the  inquiry.  In 
what  cases  are  they  not  to  be  made  parties '(     There  are  some 

36  San  Francisco  Gas  &  El.  Co.  v.  40  Lord   Camden    in    Reynoldson    v. 
City  and  County  of  San   Francisco,       Perkins,   Ambler,  564. 

164  Fed.  884,  887.  «  Calvert  on  Parties   (2d  e.1.1.  56. 

37  Heckman    v.    U.  S.,    224    U.    S.           « Sohier  v.  Williams.  1  Curt.  470. 
413,  36  L.  ed.  820.  «  Talor  v.  Fisk,  04   Fed.  242. 

38  ('.    S.    v.   Abeel,  C.    C.    A.,    174           44  Adams  v.  St.  Leger,   1   B.  &   B. 
Fed.   12.  182. 

39  Lord  Eldon  in  Lloyd  v.  Johnes, 
Ves.  65. 


4  I'll  PARTIES.  [§     11 


cases  in  which  the  existence  or  enjoyment  of  property  is 
affected  by  the  prayer  of  the  suit.  There  are  others  in  which 
the  existence  of  the  property  is  not  affected,  and  the  only  object 
is  to  transfer  if  into  the  hands  of  the  trustees.45  In  the  latter 
cases  the  beneticiaries  of  the  trust  need  not.46  although  it  seems 
they  may  be  made  parties.47  In  the  former,  when  not  too  numer- 
ous, their  presence  was  always  required,  before  the  equity 
rules.48  The  former  equity  rules,  following-  an  English  Chan- 
cery order.49  provided  that:  "In  all  suits  concerning  real 
estate  which  is  vested  in  trustees  by  devise,  and  such  trustees 
are  competent  to  sell  and  give  discharges  for  the  proceeds  of 
the  sale,  and  for  the  rents  and  profits  of  the  estate,  such  trustees 
shall  represent  the  persons  beneficially  interested  in  the  estate, 
or  the  proceeds,  or  the  rents  and  profits,  in  the  same  manner 
and  tn  the  same  extent  as  the  executors  or  administrators  in 
suits  concerning  personal  estate  represent  the  persons  bene- 
ficially interested  in  such  personal  estate ;  and  in  such  cases 
it  shall  not  be  necessary  to  make  the  persons  beneficially  in- 
terested in  such  real  estate,  or  rents  and  profits,  parties  to  the 
suit,  but  the  court  may,  upon  consideration  of  the  matter  on 
the  hearing,  if  it  shall  so  think  fit,  order  such  persons  to  be 
made  parties."  50  ''ft  seems  doubtful,  however,"'  says  Daniell 
of  the  English  order,  "whether  this  order  will  apply  to  cases 
where  a  mortgagee  seeks  to  foreclose  the  equity  of  redemption 
of  estates  which  are  subjects  to  such  trusts."'51  Trustees  under 
a    railroad    mortgage,52   or    under    anv    other    trust-deed    of    a 

45Calvert    on    Parties     (2d    ed.),  ver  v.  Piatt.  3  How.  333,  11   L.  ed. 

277.  622:   s.  c..  2  MeLoan.  268;   Cross  v. 

46  Franco    v.    Franco,    3    Yes.    70;  De  Valle.   J    Wall.  5.   17   L.  ed.  515. 

Carey    v.    Brown,    02    U.    S.    171.    23  See   Pollitz    v.    Wabash    R.    R.,    Bis- 

L.  ed.   469;    Calvert  on  Parties    (2d  chulT.   J..    X.    Y.    Sup.    Ct.    Sp.    Tm., 

ed.),  277.  278.  X.   V.  L.  .T.  Sept.   10.    1912. 

47Harrison  v.  Rowan,  4  Wash.  C.  49  30th  Order  of  August,  1841. 

C.    202:     McCaniphell    v.    Brown.    48  50  |>ule    40.   of    1842. 

Fed.  795;  Hayes  v.  Pratt.  147  t".  S.  51  BariieH'e  Ch.    Pr.    1  2d   Am.  ed.) 

557,  37  L.  ed,  270:   In  re  E.  T.  Ken-  304.      See   also   Whilton   v.  Jones.   2 

11.  v  Co..  13(5  Fed.  451.     Contra;  Con-  Y.   &   C.  244:    Cross   v.   De  Yalle,   1 

solidated  Water  Co.  v.  City  of  San  Wall.  5,  17  L.  ed.  535, 

Diego,     02     Fed.     750:     Perkins     v.  52  Shaw    v.    Railroad    Co..    100    U. 

ETendryx,   140  Fed.  520.  S.    005.    011.    25    L.    ed.    757,    758; 

48  Whistler    v.    Webb,    Bunb.    53;  Beals   v.   Illinois.  Mo;   &   T.   R.   Co., 

Greene   v.  Sisson,  2  Curt.   171;    Oli-  133  U.  S.  290.  33  L.  ed.  008:  Elwell 


113] 


PERS<  >NS  REPRESENTED. 


421 


similar  nature  securing  the  rights  in  real  property  of  a  large 
number  of  beneficiaries.53  are  held,  in  all  proceedings  affeet- 
ing  the  property  which  they  thus  hold,  adequately  to  represent 
the  latter,  who  will  he  bound,  in  the  absence  of  fraud,  by 
notice  given  to,  or  a  decree  entered  against  trustees^  although  the 
I'wurt  may  in  its  discretion  make  any  of  such  beneficiaries  a 
party  to  the  suit  at  his  application54  but  he  cannot  maintain 
an  action  at  law  upon  the  bonds,  and  they  are  not  merged  in 
a  deficiency  judgment  taken  bv  him  in  a  foreclosure  suit.55 
A  bondholder  cannot  sue  to  foreclose  where  there  is  a  trustee 
under  his  mortgage  in  existence  without  making  the  trustee  a  de- 
fendant and  alleging  the  hitter's  refusal  to  sue,  or  at  least  his 
unwillingness  to  sue,  and  such  a  state  of  facts  as  to  make  the 
request  an  idle  ceremony.56  Even  where  the  mortgage  can  only 
be  foreclosed  at  the  request  of  a  majority  of  the  bondholders, 
the  trustee  need  not  join  with  him  in  the  suit  any  of  those  who 
have  made  the  request.57  In  such  a  case,  the  trustee  is  bound 
to  recognize  the  rights  of  the  holders  of  all  bonds  that  are 
prima  facie  valid  and  to  act  on  their  request  to  foreclose  when 
made  by  the  requisite  number.58  A  provision  requiring  the 
request  of  the  holder  of  one-fourth  of  the  bonds  before  a  fore- 
closure Avas  held  not  to  prevent  a  foreclosure  at  the  suit  of 
holders  of  a  smaller  number,  when  more  than  three-fourths  were 


v.  Fosdick,  134  U.  S.  500,  33  L.  ed. 
998;  Leavenworth  County  Conrrs  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.,  134  U. 
S.  (588,  33  L.  ed.  1064:  Allen-West 
Commission  Co.  v.  Brasliear.  17G 
Fed.  119. 

53  Van  Vechten  v.  Terry,  2  Johns. 
Ch.  (N.  Y.)  197;  Kerrison  v.  Stew- 
art, 93  U.  S.-  155,  23  L.  ed.  S43 ; 
McKee  v.  Lamon,  159  U.  S.  317,  40 
L.  ed.  165;  Dalton  v.  llazelet,  C. 
('.  A..  182  Fed.  5(51;  Carpenter  v. 
Knollwood  Cemetery,  198  Fed. -297. 
The  power  of  a  trustee  to  sue  to 
protect  the  trust  estate,  by  the 
foreclosure  of  a  mortgage  or  other- 
wise, cannot  be  restricted  by  agree- 
ment of  the  parties.  N.  Y.  Tr.  Co. 
v.  Michigan  Traction  Co..  193  Fed. 
175. 


54  Williams  v.  Morgan.  HI  U.  S. 
G84,  28  L.  ed.  559;  Thomas  v. 
Brownville,  F.  K.  &  P.  R.  Co..  109 
U.  S.  522.  27  L.  ed.  1018:  infra, 
§   258. 

55  Mackay  v.  Randolph  Macon 
Coal  Co.,  C.  C.  A.,  178  Fed.  Ssi. 

56  Consol.  Water  Co.  v.  San  Diego, 
89  Fed.  272.  It  was  held  that  a 
bondholder  cannot  be  joined  as  a 
co-plaintiff  with  the  trustee.  Con- 
sol.  Water  Co.  v.  San  Diego.  92  Fed. 
759. 

57  Grand  Tr.  Ry.  Co.  v.  Central 
Yt.  Ry.  Co..  SS  Fed.  G22.  See  X. 
Y.  S.  &  Tr.  Co.  v.  Lincoln  St.  Ry. 
Co.,  74    Fed.  07. 

58  Central  Tr.  Co.  v.  Cincinnati, 
II.  &  D.  Ry.  Co..  109  Fed.  40(1. 


£22  PARTIES.  [§     113 

held  by  a  party  wlio  had  caused  the  default  by  misappropri- 
ating the  earnings  of  the  railroad.59  The  power  of  the  trustee 
to  sue  to  preserve  the  trust  estate  cannot  be  abridged  or  restrict- 
ed, eyen  by  agreement  of  the  parties.60  In  a  foreclosure  suit 
brought  by  holders  of  a  minority  of  bonds,  where  there  is  a 
claim  that  the  consent  of  the  holders  of  a  majority  is  required, 
it  is  proper  to  join  the  majority  as  defendants.61  The  fact  that 
the  trustee  represents  conflicting  interests  does  not  incapacitate 
him  from  bringing  a  suit  to  protect  the  trust  estate.62  although 
that  might  make  it  proper  for  the  bondholders  or  for  bene- 
tieiaries  to  be  joined  as  parties  to  the  suit.63  In  certain  cases 
committees  of  bondholders  have  been  made  parties  to  railroad 
foreclosures.64  Under  a  railroad  lease  by  which  the  les-ee  cove- 
nanted to  pay  to  a  bank  selected  by  the  lessor  a  sum  sufficient 
to  pay  the  interest  upon  the  lessor's  mortgage  bonds  and  taxes, 
it  was  held  that  the  bondholders  might  present  their  claim 
directly  against  the  receivers,  of  the  lessee  without  the  joinder 
of  the  receiver  of  the  lessor  who  had  been  appointed  by  a 
State  court.65  It  was  held  that  a  trustee  appointed  by  a  rail- 
way company  to  hold  mortgage  bonds,  pledged  as  security  for 
negotiable  notes  of  the  corporation,  was  the  agent  of  the  latter 
only  and  not  of  the  note  holders^  and  did  not  represent  them 
in  a  suit  affecting  the  validity  of  the  notes.66  It  has  been  held 
that  to  a  bill  against  the  heirs  of  a  trustee  to  quiet  the  title 
to  property  conveyed  by  the  trustee  to  the  complainant,  the 
beneficiary  of  the  trust  need  not  be  joined  as  a  party;67  but 
that,   the   beneficiaries   must   be   made   parties   to   a   bill   by    a 

59Linder   v.   Hartwell   R.   Co.,   73  62  Central    Tr.    Co.    v.    Cincinnati, 

Fed.   320.      See   Hubbard   v.   Calves-  II.  &  D.  Ry.  Co.,  169  Fed.  466. 

ton,    II.  &   S.    A.   Ry.   Co.,   C.   C.   A.,  63  Farmers'  L.  &  H.  Co.  v.  Xorth- 

200   Fed.  504,   309.  ern   Pac.  R.  Co..  66  Fed.   169. 

60  X.  Y.  Tr.  Co.  v.  Michigan  Trac-  64  Fanners'   L.  &  Tr.  Co.   v.   Cap.' 

tion   Co.,   193   Fed.    173,   180;    citing  Fear   &    Y.   V.    Ry.   Co.,    71    Fed.    38 

old  Colony  Tr.  Co.  v.  City  of  Wichi-  (by  intervention), 

ta.    123   Fed.  762;   Guaranty  Tr.  Co.  65  Mercantile  Tr.  Co.  v.  Baltimore 

..   i „    Cove   Springs   Co..    139   U.  &  O.  R.  Co..  94   Fed.  722. 

S.    137,    11    Sup.   Ct.   512.   35    L.   ed.  66  Central    Tr.    Co.    v.    Cincinnati, 

116.  H.  &   1).   Ry.  Co..  169  Fed.  466. 

BiToler   v.    Fast    Tenn.   &   C.   Ry.  67Grid1ey    v.    Wynant,    23    How. 

Co..  67   Fed.  168.  500,  16  L.  ed.  411. 


§   114]  class  suits.  423 

stranger  to  set  aside  the  deed  of  trust  for  fraud,63  and  to  a  suit 
by  one  of  several  stockholders  to  set  aside  an  agreement  to 
pool  their  stock  bv  depositing  the  same  with  trustees  the  other 
stockholders,   as   well   as   the  trustees,   are  necessary   parties.6*9 

§  114.  Class  suits.  When  a  number  of  persons  have  a 
common  interest  in  a  thing-  which  is  the  subject  of  litigation, 
and,  in  some  instances,  when  a  number  of  persons  have  a 
common  interest  in  a  question  which  is  before  the  court  for 
decision,  one  or  more  may  sue  or  be  sued  in  behalf  of  the  rest. 
Judge  Story  divides  the  first  of  these  divisions  into  two : 
"(1)  When  the  question  is  one  of  a  common  and  general  in- 
terest, and  one  or  more  sue  or  defend  for  the  benefit  of  the 
whole;"  and  (2)  when  the  parties  form  a  voluntary  association 
for  public  or  private  purposes,  and  those  who  sue  or  defend 
may  fairly  be  presumed  to  represent  the  rights  and  interests 
of  the  whole."  1  But  there  seems  to  be  no  reason  for  treating 
the  two  classes  separately.  They  are  called  "class  suits/.' 
"creditors'  suits/'  or  "stockholders'  suits,"  as  the  case  may  be.2 

"When  the  question  is  one  of  common  or  general  interest  to 
many  persons  constituting  a  class  so  numerous  as  to  make  it  im- 
practicable to  bring  them  all  before  the  court,  one  or  more  may 
sue  or  defend  for  the  whole."  3  When  one  or  more  thus  tile  a 
bill  on  behalf  of  themselves  and  others  similarly  interested, 
they  should  state  in  the  title  of  their  bill  that  they  so  sue.  and 
show  that  the  others  are  numerous  or  unknown.4  Any  others 
of  the  class  have  the  right  to  join  with  them  in  the  suit  at  any 
time  before  its  settlement  or  termination  upon  payment  of  their 
share  of  the  costs,5  and  counsel  fees  6  which  have  been  then  paid 
or  incurred,   provided  they  do  not  seek  to  act  in  hostility   to 

68  Collin  Tdfg.  Co.  v.  Ferguson  &  5  Ogilvie  v.  Knox  Tns.  Co..  2 
JTutter's  Trustee,  54  Fed.  721.  Con-  Black.  530.  17  L.  ed.  340:  s.  c.  22 
tra,  Vetterlein  v.  Barnes,  124  U.  S.  How.  380.  16  L.  ed.  340:  Ex  parte 
]69,  31   L.  ed.  400.  Jordan.  04  U.  Si  248.  24  L.  ed.  123: 

69  Ryan  v.  Seaboard  R.  Co..  89  Hallett  v.  Ballet*,  2  Paige  i  X.  Y.)', 
Fed-   39?-  15:    Leigh    v.    Thomas.    2    Yes.    Sen. 

§    114.      1  Story's  Eq.   PI.   §   07.  313:   Ransom  v.  Davis.  18  How.  205. 

2  Seminole  Securities  Co.  v.  South-  15  L.  ed.  38,8:  Story's  Eq.  PL.  §  99. 
ern  Life  Ins.  Co..  1S2  Fed.  85.  9G.  6  Centra;]  R.  Co.  v.  Pettus.  113  U. 

3Fq.   Rule  38.  S.    110.    28    L.    ed.    015:    Trustees    v. 

*  Hoe  v.   Wilson,  9   Wall.  501.   19  Oreenough,  105  U.  S.  527.  26  L.  ed. 

L.   ed.    762.  1157. 


424 


PARTIES. 


[§     H-i 


the  origina]  complainants,7  in  which  case  the  court  may  in  its 
discretion  allow  them  to  intervene.8  If  their  joinder  as  plain- 
tiffs would  oust  the  court  of  jurisdiction,  they  may  be  brought 
in  as  defendants.9  Such  a  bill  may  be  filed  even  when  a  ma- 
jority of  those  interested  object  to  the  suit.10  ''For  where  a 
matter  is  nccessarilv  injurious  to  the  common  right,  the  ma- 
jovity  of  the  persons  interested  can  neither  excuse  the  wrong 
nor  deprive  all  other  parties  of  their  remedy  by  suit."11  To 
such  a  bill  it  is  not  necessary  to  make  defendants  all  who  ob- 
ject to  its  being  filed,  provided  that  enough  are  brought  before 
the  court  to  sufficiently  represent  their  interest.12  It  was 
originally  held  that  no  one  could  sue  on  .behalf  of  others  who 
claimed  for  himself  an  interest  in  the  matter  in  controversy 
distinct  from  that  <5f  those  whom  he  sought  to  represent;  for 
example,  a  mortgagee  was  not  allowed  to  sue  in  behalf  of 
general  creditors  while  enforcing  his  mortgage,13  but  recent 
authorities  seem  to  have  changed  this  doctrine.14  All  on  whose 
behalf  one  sues  must  appear  to  have  an  interest  in  the  relief 
prayed  for  by  him.15  In  such  a  suit,  the  bill  may  be  dismissed 
at  any  time  before  decree  by  the  consent  of  those  who  are  then 
joined  as  plaintiffs,16  but  not  afterwards,  since  by  the  decree 
a  right  becomes  vested  in  the  others.17     The  court  will  nearly 


vr> 


always  allow  a  bill  filed  by  an  individual  in  his  own  right  to 


7  Forbes  v.  Memphis.  El  Paso  & 
Pacific  R.  Co.,  2  Woods,  323. 

8  Galveston  R.  Co.  v.  Cowdrey,  11 
Wall.  450,  478,  20  L.  ed.  205. 

9  Brown  v.  Pacific  Mail  S.  S.  Co., 

5  Blatchf.  C.  C.  525.  535.  But  see 
Stewart  v.  Dunham,  115  U.  S.  61. 
29  L.  ed.  329. 

10  Bromley  v.  Smith,  1  Simons. 
S:  Taylpr  v.  Salmon,  4  Myl.  &  Cr. 
134:  Story's  Eq.  PI.,  §  114.  But 
see.  Jones  v.  Garcia  del  Rio.  1  Turn. 

6  Russ.  300. 

11  Bromley  v.  Smith.  1  Simons,  8, 
11. 

12  Clinch  v.  Financial  Corpora- 
tion. L.  P.  <  Ch.  App.  117.  at  p.  122: 
Story's   Eq.   PI..   $135b. 

13  Burney  v.  Morgan,  1  Sim.  &  S. 


358.  362:  Palmer  v.  Foote,  7  Paige 
(N:  Y.)  437:  White  v.  Hillacre,  3 
Y.  &  C.  597. 

14  Galveston  R.  Co.  v.  Cowdrey, 
11  Wall.  459,  20  L.  ed.  199;  Mason 
v.  Bogg.  2  Myl.  &  Cr.  443;  Story's 
Eq.  Pl..'§   101.  and  cases  there  cited. 

15  Newton  v.  Earl  of  Egmont.  4 
Simons.  574,  585;  Jones  v.  Garcia 
del   Pio.    1    T.  &   P.  -2U7. 

16  Handford  v.  Storie.  2  Sim.  &  S. 
196:  HuBbell  v.  Warren.  8  Allen 
(Mass.  i.  173;  llirshfeld  v.  Fitzger 
aid.  157  X.  V.  166,  46  L.R.A.  839: 
§   361.    infra. 

17  Handford  v.  Storie,  2  Sim.  &  S. 
196;  York  v.  White.  10  Jurist,  168: 
times  v.  Lansing,  7  Paige  (X.  Y., 
583. 


114] 


CI.ASs   SUITS. 


425 


be  amended,  so  as  to  allow  him  to  sue  on  behalf  of  himself 

and  other  members  of  a  class.18  The  ordinary  cases  of  bills 
tiled  by  one  person  of  a  class  on  behalf  of  others  similarly 
situated  are  bills  by  stockholders  of  corporations;19  by  mem- 
bers of  nninrouoratcd  associations;20  by  railroad  bondhold- 
ers,21 of  whom  one  holding  bonds  secured  by  successive  mort- 
gages may.  after  the  death  of  all  the  trustees,  sue  for  a  fore- 
closure on  behalf  of  himself  and  the  holders  of  each  class  of 
the  bonds  which  he  owns;22  and  bills  by  creditors.23  It  was 
held  that  such  a  suit  could  not  be  filed  by  a  stockholder  of  an 
insolvent  railroad  company,  to  compel  the  issue  to  him  of 
stock,  which  he  claimed  under  a  reorganization  agreement, 
when  he  alleged:  "Your  orator  does  not  know  how  many 
others  are  similarly  situated;  but  he  avers,  upon  information 
and  belief,  that  there  are  many  other  stockholders  of  the 
Georgia  Pacific  Railway  similarly  situated,  and  that  their 
stock  amounts  to  at  least  $500, 000. "  24  Tn  a  case  where  a  rail- 
road mortgaged  its  property  directlv,  without  the  intervention 
of  a  trustee,  to  fifteen  bondholders,  naming  them,  and  the 
adequacy  of  the  security  was  doubtful,  it  was  held  that  one 
could  not  sue  on  behalf  of  the  rest,  but  that  all  the  bondholders 
must  be  joined  as  parties  to  the  bill.25  Where  there  were  one 
hundred  and  twenty  bonds  of  $500  each,  secured  by  a  mortgage 
to  a  trustee,  and  all  the  bonds  were  held  by  three  persons,  it 
was  held  that  all  the  bondholders  were  indispensable  parties  to 
a  bondholder's  foreclosure  suit,   although   the  plaintiff's  bond- 


18  Jolm.son  v.  Compton,  4  Simons, 
47;  Lloyd  v.  Loarfrig,  0  Ves.  773; 
Darnell's  Ch.  Pr.  (5th  Am.  ed.)  236, 
note  (5.  and  245.  and  cases  cited. 

19  Bacon  v.  Robertson.  18  How. 
480.  15  L.  ed.  409;  Seminole  Securi- 
ties Co.  v.  Southern  Life  Ins.  Co, 
182  Fed.  85.  80:  Walhvorth  v.  Holt. 
4  jlyi:  &  Cr.  619;  Taylor  v.  Salmon, 
4  Myl.  &  Cr.  334;  Hichens  v.  (  on- 
gieve',  4  Russell,  562;  Cray  v.  Chap- 
lin. 2  Sim.  &  S.  267 ;  Crease  v.  Bab- 
ceck,  lit  Met.  (Mass.)  5>2;  Xul.le  v. 
G'adsderi  I..  &  hup.  Co..  133  Ala. 
250.  01  Am.  St.  Rep.  27:  s.  C,  31 
So.  8*56. 


20  Bainbridge  v.  Burton.  2  Beavan. 
539. 

21  Trustees  of  the  Wabash  &  Erie 
Canal  Co.  v.  Beers.  2  Black.  448.  17 
L.  ed.  327 :  Calveston  R.  Co.  v.  Cow- 
drey.  11  Wall.  450,  20  L.  ed.  399; 
Central  R.  Co.  v.  Pettus,  113  l.  S. 
110.  28  L.  ed.  015. 

22  Calveston  R.  Co.  v.  Cowdrey, 
11  Wall.  450.  478.  20  L.  ed.  lO'l. 
205. 

23  Fink  v.    Patterson.  21    Fed.   602. 
24Mot](>y     v.     Southern     Ry.     Co., 

1S4    Vv<}.  O.lti.  958. 

25  Railroad  Co.  v.  Orr.  IS  Wall. 
471.  21    L.  ed.  810. 


t26 


PARTIES. 


[§    11§ 


holder  filed  his  bill  on  behalf  of  the  others  as  well  as  of  him- 
self.26 Tt  was  held  that  such  a  suit  could  not  be  brought  by  the 
holder  of  a  certificate  of  stock  which  had  not  been  transferred 
on  the  books  of  the  corporation  to  his  name.27  Such  bills  may 
also  be  tiled  by  one  or  more  legatees.28  at  least  if  not  residuary 
legatees;29  by  one  of  several  next  of  kin;30  by  one  of  several 
beneficiaries  of  a  trust  fund.31  by  one  of  many  partners;32  by 
one  of  a  class  for  the  benefit  of  which  a  charity  was  founded  : 33 
by  one  of  the  crew  of  a  privateer  seeking  an  account  from  a  de- 
fendant who  has  collected  their  joint  prize  money;34  by  one 
or  more  taxpayers,35  or  property  owners;  subject  to  an  assess- 
ment:36 but  not  by  one  of  several  importers  to  enjoin  the 
seizure  of  their  different  imports  under  an  unconstitutional 
statute.37  Where  none  of  the  complainants  in  the  class  suit 
are  entitled  to  relief,  the  court  cannot  grant  relief  to  persons 
who  have  not  been  joined  as  parties,  on  whose  behalf  it  is 
claimed  the  suit  was  brought.38 

§  115.  Suits  against  one  or  more  of  a  class.  Similarly. 
where  persons  who  are  jointly  liable  are  very  numerous,  some 
may  be  sued  instead  of  all,  provided  that  the  manner  in  which 
they  are  sued,  and  the  fact  that  they  are  numerous,  are  stated 
in  the  bill.1  Ordinarily,  the  complainant  selects  such  of  the 
class  as  he  chooses  to  represent  the  rest.  The  persons  thus 
selected  may  be  a  committee  chosen  by  the  rest  of  the  class  to 


26  .Mangels  v.  Donau  Brewing  Co.. 
53  Fed.  513. 

27  Rrown  v.  Duhitli  &  X.  Ry.  Co.. 
53  Fed.  889,  894.  But  see  §  145. 
infra. 

28  Bennett  v.  Honywood,  Ambler. 
70S:  Story's  Eq.  PL  §  104,  and  cases 
cited. 

29  Upon  this  point  there  is  a  con- 
flict of  authority.  Compare  Brown 
v.  Ricketts,  3  J.  Ch.  (X.  Y.)  555, 
sind  Davoue  v.  Fanning.  4  J.  Ch. 
(X.  Y.l  inn.  with  Kettle  v.  Craiy. 
1  Paige  ( X.  Y.i.  417.  note.  See 
also  Story's  Eq.  PL.  §  so. 

30  story's   Fq.   PL.    §    105. 

81  Watson  v.  National  Life  &  Tr. 
Co..  C.  C  A.,  162  Fed.  7. 


32Chancey  v.  May,  Prec.  Ch.  592: 
Small  v.  Atwood.  1  Younge,  407. 

33  Smith  v.  Swormstedt,  16  How. 
288,  14  L.  ed.  n42. 

84  Good  v.  Blewitt.  13  Yes.  397: 
West  v.  Randall,  2  Mason,  181,  194. 

35  Crampton  v.  Zabriskie,  101  I". 
S.  601,  2.i  L.  ed.   1070. 

36McIntosh  v.  Pittsburg.  112  Fed. 
7".-,. 

37  Scott  v.  Donald.  165  U.  S.  107, 
4  1   L.  ed.  648. 

38  Watson  v.  National  Life  &  Tr. 
Co.,  C.  C.  A..  189  Fed.  872. 

§  115.  l  Story's  Eq.  PL.  §§  116, 
117:  McArthtir  v.  Seott.  1  13  l.  S. 
340,  395,  28  L.  ed.  101.").  1032;  Bal- 
timore. C.  &  A.  Ry.  Co.  \.  Godeffroy, 


§  11 


SUITS  ALiAJ.NST   <>.\K   OF   A    CLASS. 


427 


act  for  them  in  the  matters  complained  of,  such  as  a  reoreani- 
znrioii.  (n-  a   protective^  committee  of  stockholders  and   bond- 
holders^ or  the  managing  committee  of  a  clearing-house  asso- 
ciation.3    It  is  proper,  however,  to  name  all  of  the  class  in  the 
title  to  the  bill,  and  then  have  the  court  select  some  of 'these  to 
be   served   and    to  defend   for   the    rest.4      This    rule   has   been 
applied  to  members  of  a  club.5  or  of  another  unincorporated 
association    when   sued   for   the   collection   of   its   debts,   or   to 
enjoin    a    violation    of    the    anti-trust    act;6   to   members   of    a 
trades  union  engaged  in  a  strike;7  and  to  the  stockholders  of 
a  corporation  in  a  suit  brought  by  a  creditor  after  its  dissolu- 
tion to  recover  the  amount  of  its  capital  stock  which  has  been 
divided  among  them.8     It  has  been  held:  that  in  a  suit  for  an 
injunction,    against    a    voluntary    association    with    numerous 
members,    the    whole    association    will    be    brought    before    the 
court,   by  service  upon   its   president,   secretary,   manager   and 
superintendents.9     It  has  been  said  that  ''this  rule  has  always 
been   understood  to  modify  somewhat  the  general  doctrine  in 
England,  that  parties,  not  formally  served  with  process,   nntv 
yet  be  bound  on  the  principle  of  representation  to  the  fullest 
extent  that  those  are  bound   who  are   their   representatives   in 
the  suit.     The  language  of  the  reservation  is  that  in  such  cases 
the  decree  shall  be  without  prejudice  to  the  rights  and  claims 
of  all  absent  parties.     The  rule  especially  is  framed  to  allow 
a  suit  to  proceed  without  having  all  the  members  of  an  asso- 
ciation or  of  a  class  of  defendants  formal  parties;  but.  while 


C.  C.  A..  182  Fed.  525;  Carpenter 
v.  Knollwood  Cemetery,  108  Fed. 
297. 

2  Railroad  Co.  v.  Howard.  7  Wall. 
392,  lit  L.  ed.  117:  Carpenter  v. 
Knollwood  Cemetery.   19S   Fed.   297. 

3  Yardlev  v.  Phifler,   58   Fed.   746. 

4  Ayres  v.  Carver.  17  How.  591, 
15  L.  ed.   179. 

5  C'ullei)  v.  Duke  of  Queensberry, 
1  Brown's  Ch.  101:  Cousins  v. 
Smith,  1.'!  Yes.  o44:  Story's  Eq.  PI., 
§   116. 

6  1".  S.  v.  Coal  Dealers'  Ass'n  of 
California.  85   Fed.  252. 

'Am.   Steel   &    Wire   Co.   v.   Wire 


Drawers*  &  Die  Makers"  Cnions,  90 
Fed.   598. 

8  Mandeville  v.  Riggs,  2  Pet.  482. 
7  L.  ed.  493:  Railroad  Co.  v.  How- 
ard, 7  Wall.  .392..  Ill  L.  ed.  117: 
Wood  v.  Dummer,  3  Mason,  315. 

9Spauldirig  v.  Evenson,  1-19  Fou. 
913,  916.  See  also  Stationary  en- 
gineer Pul».  Co.  v.  Cbmerfordl  155 
Fed.  GG7.  670;  A.  P..  Barnes  Co,  v. 
Berry,  C.  C.  A.,  156  Fed.  72.  But 
see  Allis-Chalm'ers  (  o.  v.  Iron  Muld- 
ers" Union,  150  Fed,  155,  is:;-,  hold- 
ing that  the  decree  did  not  hind  the 
absentees  of  defendants  who  had 
been   represented  but   not  served. 


428  PARTIES.  [§    116 

preserving  the  right  of  the  absent  ones  to  afterwards  litigate 
for  themselves  the  same  question,  it  does  not  prohibit  the  whole 
clasSj  when  plaintiffs,  from  taking  the  benefit  of  a  decree  in 
favor  of  those  who  represent  them,  nor  preclude  a  plaintiff 
who  has"  sued  the  whole  class  by  their  representatives;  from 
binding  the  absent  parties  by  supplemental  proceedings  to 
bring  them  in  when  known,  if  necessary,  and  subject  them  to 
the  decree,  when  they  have  had  that  opportunity  to  defend 
against  it."  10 

§  116.  Suits  by  or  against  one  or  more  as  representa- 
tives of  a  class  claiming  a  common  right.  In  some  in- 
stances when  a  number  of  persons  have  a  common  interest  in 
the  decision  of  a  question  of  fact  or  law,  though  they  have  no 
common  interest  in  any  property  which  is  the  subject  of  liti- 
gation, yet  as  they  are  said  to  claim  under  a  common  right, 
one  or  mure  of  them  have  been  allowed  to  represent  the  rest  as 
plaintiffs  or  defendants  in  a  suit  to  determine  the  disputed 
question.1  Ordinarily,  the  complainant  selects  such  defendants 
as  he  considers  proper  and  sufficient ;  but  he  may  name  all  of 
the  class  in  the  title  of  his  bill  and  ask  the  court  to  select  a 
few  to  defend  on  behalf  of  the  rest.2  Instances  where  a  suit 
of  this  kind  has  been  allowed  by  one  or  more  as  plaintiffs  in 
behalf  of  others  similarly  situated  have  usually  occurred  when, 
although  the  plaintiff  and  those  represented  by  him  had  no  com- 
mon interest  in  property,  yet  he  sought  a  determination  of  a 
question1  affecting  the  enjoyment  of  estates  which,  though  dis- 
tinct, came  to  him  and  the  rest  from  a  common  source.  Thus, 
one  or  more  tenants  or  parishioners  may  sue  a  lord  of  a  manor 
or  parson,  to  establish  a  right  of  common,3  or  of  turbary.4 
Two  or  more  foreign  corporations  were  permitted  to  file  a  bill, 
on  behalf  of  themselves  and  all  other  foreign  corporations 
similarly  affected,  in  order  to  enjoin  the  execution  of  an  un- 

io. \in.   Steel  >.V   Wire  Co.  v.   Wire  3  Anon.,    1    Chancery    Cases,   209; 

Drawers'  &  Die  Makers'  Unions,  00  Comers    v.     Lord     Abergavenny,     1 

Fed.  598,  (iu.">.  per  Hammond,  -T.  Atk.    2S.~.  ;    Brown    v.    Vermudeni,    1 

§   llti.     l  Wist   v.  Randall.  2    Ma-  Cli.  Cas.  272:  Smith  v.  Earl  Brown- 
son,    181,    195.     See   Percy   Summer  low,  L.   R.  9  Eq.  241. 
(  lub  v.     .-tie.    145   Fed.  :>3.  4  Baker    v.    Rogers,    Sel.    Ch.    Cas. 

2  Ayrcs    v.    Carver.    17    How.    591,  74. 
1.-.  L;  ed.  170. 


§     116]  SUITS  AGAINST   ONE  OF  A  CLASS.  429 

constitutional  statute.5    A  few  defendants  have  been  allowed  to 
represent  a  large  class  not  only  when  all  of  that  class  had  some 
.privity  of  estate,  hut  also  in  other  cases.     Thus,  a  parson  was 
allowed  to  sue  a  few  on  hehalf  of  all  his  parishioners  to  estab- 
lish  a  disputed   right  to  tithes.6     A  lord  of  a  manor  may  sue 
some  on  behalf  of  all  of  his  tenants  to  establish  their  duty  to 
grind   at  his  mill,  or  his  right  of  enclosure,7  or  to  enforce  a 
rent-charge.8     Bills  were  sustained  when  brought  !>v  those  in- 
forested  in  contesting  the  legality  of  the  issue  of  certain  certifi- 
cates of  indebtedness-,    against   some  on    behalf  of   all  of   the 
holders  of  such   certificates;9   and  when   brought   by   the   pur- 
chaser  to  set   aside   a   sale   to  him   by   a  decedent   against  the 
executor  of  the  vendor  and  some  of  his  heirs  at  law.  the  other 
heirs  at  law  being  unknown.10     It  seems  that  a  bill  can  be  sus- 
tained when  filed  by  a  claimant  to  the  equitable  title  to  a  tract 
of  land  against  some  on  behalf  of  all  who  have  severally  bought 
with  notice  parcels  of  it  since  his  right  accrued,  praying  that 
their  conveyances  be  set  aside  as  in  fraud  of  his  rights.11    It  has 
been    held    that    in    a    suit    by    a    railroad    company    against    a 
State   Commission,   to  enjoin   the  enforcement   of  charges   for 
freight,    shippers    of    articles    affected    by    such    charges    may 
properly  be  joined   as  defendants,   as  representatives  of  then- 
class,  upon  an  allegation  that  unless  an   injunction  is  granted 
against  them   they  will   attempt  to  enforce  such   rights.12     "It 
has  long  been   settled,   that    if  a   person   has   a   common    right 
■   against   a  great  many  of  the   king's  subjects,  inasmuch    as   he 
cannot  contend   with  all  the  king's  subjects,  a  court  of  equity 
will  permit  him  to  file  a  bill  against  some  of  them,  taking  care 
to  bring  so  many  persons  before  the  court  that  their  interests 
shall  be  such  as  to  lead  to  a  fair  and  honesl  support  of  the  puh- 

5  Greenwich    Ins.    Co.    v.    Carroll.       107:    Attorney-General    v.    Jackson. 
125   Fed.   121.  11    Yes.  365,   307 :    Attorney-General 

6  Brown   v.  Vermiiilon,   1   Cli.  Cas.       v.  Shelly,   1   Salk.   1(52. 

272:  TIaideastle  v.  Smithson,  3  Atk.  9  Sheffield    Water    Works    v.    Yeo- 


240. 


mans,  L.  R.  2  Cli.  App.  8. 


'  Brown  v.  Vermuden,  1   CI..  Cas.  io  Alger  v.  Anderson,  7S  Fed.  720, 

272.     Gf.  U.  S.  v.  Dastefvignes,  IIS  733. 

Fed.    199;    s.   c.   C.   C.   A..   122   Fed.  n  Ayres   v.   Carver.    17    How.   591, 

30.  15   L.  ed.    17!). 

8  Attorney-General  v.  YVyburgh,  1  12  Northern   Pac.   Ry.  Co.  v.  Lee, 

P.  Wins.  59!):   s.  c.  2  Eq.  Cas.  Ahr.  199  Fed.  021. 


430 


PARTIES. 


[§  m 


lie  interest;  and  when  a  decree  has  been  obtained,  then  with 
respect  to  the  individuals  whoso  interest  is  so  fully  and  hone-sfr 
lv  established,  the  court  on  the  footing-  of  the  former  decree  will 
carry  the  benefit  of  it  into  execution  against  other  individuals 
who  were  not  parties/'13  Thus,  a  city  may  file  such  a  hill 
to  establish  its  right  to  levy  a  duty:14  and  it  has  been  suggested 
tHat  a  suit  may  thus  he  brought  by  one  of  many  persons  jointly 
interested  in  a  geographical  trade-mark.15  Tn  these  cases,  as 
has  been  said,  a  decree  against  the  defendants  before  the  court 
has  been  hold  in  England  to  hind  others  of  the  same  class.16 
It  has  been  said  that  this  would  be  the  rule  here.17  Under 
the  former  Eefuity  Rules,18  it  was  said  that  the  doctrine  did 
not  apply  tO  members  of  unincorporated  trades*  unions.19 

§  117.  Omission  of  defendants  not  within  the  jurisdic- 
tion of  the  court.  The  second  exception  to  the  general  rule 
is.  that  persons  who  cannot  be  subjected  to  the  jurisdiction  of 
a  court  of  equity  need  not  be  joined  as  parties  to  a  bill,  provided 
that  their  presence  is  not  indispensable  to  a  decree.  "When 
any  are  absent  from  the  jurisdiction  who.  if  within  it,  would 
he  necessary  parties  defendant,  their  presence  will  ordinarily 
he  dispensed  with,  provided  an  equitable  and  effectual  decree 
can  he  made  against  those  who  have  been  served  with  process. 
The  former  English  practice  was  to  charge  in  the  hill  the  fact 
of  the  absence  from  the  realm  of  any  who  otherwise  ought  to 
have  been  joined  as  defendants,  and  to  pray  that  they  might 
be  served  with  process  if  they  came  within  the  jurisdiction. 
Under  the  modern  English  system  this  strictness  is  not  re- 
quired, aiid  it  seems  to  be  sufficient  if  the  excuse  for  not  mak- 


13  Lord  ETdon  in  Weale  v.  -West 
Middlesex  Water  Works  Co..  1  Jac. 
&   Walk.  358,  369. 

14  City  of  London  v.  Perkins.  3 
Bro.  Pail.  Cas.  602;  Mayor  of  York 
v.  Pilkington,  1  Atk.  282. 

15  City  of  Carlsbad  v.  Tibbetts,  51 
Fed.  852,  856,  per  Putnam.  J. 

16  Brown  v.  Vermuden,  1  Ch.  ('as. 
272:  Lord  Eldon  in  Weale  v.  West 
Middlesex  Water  Works  Co.,  1  Jac. 
&    Walk.   358.   36!). 

"Wallace    v.     Adams.    204     C.    S. 


415.  42.").  .">!  L.  ed.  547.  552:  Cliisolin 
\.  Caines.  121  Fed.  397.  400.  Of. 
U.  S.  v.  Old  Settlers.  148  U.  S.  127. 
480.   37   L.  ed.  509.   529. 

18  Eq.  Rule  48.  of  1842. 

19  See  McArthur  v.  Scott.  113  U. 
S.  340,  395.  28  L.  ed.  1015.  1032; 
Am.  Steel  &  Wire  Co.  v.  Wire  Draw- 
ers* &  Dye  Makers'  Unions,  90  Fed. 
598:  r.rving  v.  Joint  District  Coun- 
cil, &c,  of  United  Brotlierhood  of 
Carpenters,  etc.,   180  Fed.  896. 


§     11 7-J  ABSENT   DEFENDANTS.  431 

ing  the  absent  parties  defendant  appears  on   the  faee  of  the 
bill."  *    This  rule  of  equity  practice  has  been  confirmed  by  stat- 
ute iu  tliii  Tinted  States.     "When  there  are  several  defendants 
in  any  suit  at  law  or  in  equity,  and  one  or  more  of  them  are 
neither  inhabitants  of  nor  found  within  the  district  in  which 
the  suit  is  brought,  and  do  not   voluntarily  appear,   the  court 
may  entertain  jurisdiction,  and  proceed  to  the  trial  and  adjudi- 
cation of  the  suit  between  the  parties  who  are  properly  before 
it.  but  the  judgment  or  decree  rendered  therein  shall  not  con- 
clude or  prejudice  other  parties  not  regularly  served  with  pro- 
cess nor  voluntarily  appearing  to  answer;  and  non-joinder  of 
parties  who  are  not  inhabitants  of,  nor  found  within  the  district 
as  aforesaid,   shall   not   constitute  matter  of  abatement  or  ob- 
jection to  the  suit."2     This  statute  is,  however,  merely  declara- 
tory, and  does  not  enlarge  the  power  previously  possessed   by 
courts  of  equity.3     The  power  has  been  extended  by  rule,  and 
parties  not  indispensable  to  an  equitable  decree  may  be  omitted 
if  their  joinder  would  oust  the  court  of  jurisdiction   by   plac- 
ing persons  of  the  same  citizenship   npon  different   sides  of  a 
controversy.     "'In  all  cases  where  it  shall  appear  to  the  court 
that  persons,  who  might  otherwise  be  deemed  proper  parties  to 
the  suit  cannot  be  made  parties  by  reason  of  their  beiiur  out 
of  the  jurisdiction  of  the  court,  or  incapable  otherwise  of  being 
made  parties,  or  because  their  joinder   would   oust  the   juris- 
diction of  the  court  as  to  the  parties  before  the  court,  the  court 
may  in  its  discretion  proceed  in  the  cause  without  making  such 
persons  parties;  and  in  such  cases  the  decree  shall  be  without 
prejudice  to  the  rights  of  the  absent  parties."4     "If  any  per- 
sons, other  than  those  named  as  defendants  in   the   bill,  shall 
appear  to  be  necessary  or  proper  parties  thereto,  the  bill  shall 
aver  the  reason  why  they  are  not  made  parties,  bv  showing  them 
to  be  without  the  jurisdiction  of  the  court,  or  that  they  cannot 
be  joined  without  ousting  the  jurisdiction  of  the  court  as  to 

§   117.     1, Judge  Dwight  Foster  in  3  Shields  v.  Barrow,  17  How.  130. 

Talmer    v.    Stevens,    100    Mass.   461,  141.   IS  L.  ed.   158,   101. 

466-  4Eq.    Rule  39.     This   modifies  th- 

2  l*.  S.  R.  S.,  §  737.     See  Conolly  language   of    Eq.    Rule    47.    of    1842, 

v.     VYells.    33     Fed.    20.5-.     Wall     v.  by    omitting    the    words    "necessary 

Thomas.   41    Fed.   (120;    Greenhall   v.  or"  before  the  word  "proper." 
Carnegie  Tr.  Co.,    ISO  Fed.  812. 


{3-2  PARTIES.  [§    117 

other  parties.  And  as  to  persons  who  are  without  the  juris- 
diction and  may  properly  be  made  parties,  the  bill  may  pray 
that  process  may  issue  to  make  them  parties  to  the  bill  if  they 
should  come  within  the  jurisdiction. "  5  "Such  being  the  gen- 
eral rule  it  remains  to  be  considered  what  parties  are  indis- 
pensable to  an  equitable  decree.  As  has  been  said  above,  a 
court  of  equity  will  ordinarily  seek  to  have  before  it  as  parties 
all  persons  in  any  manner  interested  in  the  subject-matter  of 
the  litigation,  in  order  to  make  a  decree  that  will  prevent  the 
necessity  of  a  subsequent  appeal  to  its  aid.6  This  rule,  how- 
ever, having*  been  established  for  the  promotion  of  justice, 
will  be  modified  whenever  its  rigid  enforcement  Would  prevent 
the  court  from  doing  justice  to  a  person  invoking  its  protection. 
Accordingly  it  will  proceed  to  a  decree  without  the  presence 
of  such  parties  as  cannot  be  subjected  to  its  jurisdiction,  pro- 
vided it  can  determine  the  respective  rights  of  the  parties  be- 
fore it  without  affecting  those  of  the  rest.  There  are  three 
classes  of  parties:  formal  parties;  parties  necessary  to  a  decree 
which  completely  disposes  of  the  controversy,  so  that  the  aid  of 
the  court  need  not  be  invoked  again,  but  whose  interests  are 
so  far  separable  from  those  of  the  parties  before  the  court, 
that  it  can  dispose  of  the  controversy  between  the  latter  with- 
out affecting  the  interests  of  the  former;  and  parties  with  an 
interest  in  the  controversy  "of  such  a  nature  that  a  final  decree 
cannot  he  made  without  either  affecting  that  interest,  or  leav- 
ing the  controversy  in  such  a  condition  that  its  final  determin- 
ation may  lie  wholly  inconsistent  with  equity  and  good  con- 
science." 7  Of  these  the  first  two  classes  can  always  be  omitted, 
when  they  are  beyond  the  reach  of  the  process  of  the  court  or 
when  their  joinder  would  oust  its  jurisdiction8     Thus  where  a 

5  Simms  v.  Guthrie,  9  Cranch,  10.  The  rule  upon  the  subject  lias  been 

3    L.    ed.    642:     Meredith,    21     How.  well  stated  by  Mr.  .Justice  Bradley: 

489.    ll!  L.  ed.  201.  "The    general    rule    as    to    parties    in 

6§   110,  supra.  chancery    is    thai    all    ought    to    be 

7  Mr.  Justice  Curtis  in  Shields  v.  made  parties  who  are  interested  in 
Barrow.,  17  How.  130,  139,  15  L.  ed.  the  controversy,  in  order  that  there 
158.  See  Chadbourne  v.  Coe,  51  uiay  be  an  end  of  litigation.  But 
Fed.  479.  there  are  qualifications  of  this  rule 

8  Fei  ral  Mining  &  Smelting  Co.  arising  out  of  public  policy  r  nd  the 
v.  Bunker  Hill  &  Sullivan  Mining  necessity  of  particular  cases.  The 
&   Concentrating  Co.,    187    Fed.  474.  true    distinction    appears    to    be    as 


118] 


FORMAL    PARTIES. 


•i  •)  •> 


bill  was  filed  for  the  construction  of  a  will,  an  account  by  the' 
executrix,  and  a  declaration  that  certain  heirs  had  abandoned 
their  rights  in  a  part  of  the  estate,  in  the  absence  of  one  of 
the  heirs  the  court  took  jurisdiction  so  as  to  grant  all  the  relief 
prayed  except  that  which  affected  him.9 

§  118.  Formal  parties  who  may  be  omitted  when  with- 
out the  jurisdiction.  Formal  parties  are  those  with  a  naked 
legal  title,  but  no  equitable  interest  in  the  subject-matter  of 
the  controversy.  When  the  persons  really  interested  are  be- 
fore the  court,  formal  parties  can  always  be  omitted  if  with- 
out the  jurisdiction,1  and  their  joinder,  no  matter  whether 
as  plaintiffs  or  defendants,  cannot  oust  the  court  of  juris- 
diction, as  they  are  in  reality  upon  neither  side  of  the  contro- 
versy.2 Such  are:  a  husband  against  whom  no  relief  is  sought, 
in  a  suit  by  his  wife  to  enforce  the  trusts  of  a  marriage  settle- 
ment ; 3  trustees  of  prior  railroad  mortgages  in  a  suit  for  the 
foreclosure  of  a  subsequent  mortgage  and  the  sale  of  the  mort- 
gaged property  subject  to  their  liens;4  and  parties  with  the 


follows:  First,  when  a  person  will 
be  directly  affected  hy  a  decree  he 
is  an  indispensable  party,  unless  the 
parties  are  too  numerous  to  be 
brought  before  the  court,  when  the 
case  is  subject  to  a  special  rule. 
Secondly,  when  a  person  is  inter- 
ested in  the  controversy,  but  will 
not  be  directly  affected  by  a  decree 
made  in  his  absence,  he  is  not  an 
indispensable  party,  but  he  should 
be  made  a  party  if  possible,  and  the 
court  will  not  proceed  to  a  decree 
without  him  if  he  can  be  reached. 
Thirdly,  when  he  is  not  interested 
in  the  controversy  between  the  im- 
mediate litigants,  but  has  an  inter- 
est in  the  subject-matter,  which 
may  be  conveniently  settled  in  the 
suit,  and  thereby  prevent  further 
litigation,  he  may  be  a  party  or  not 
at  the  option  of  the  complainant." 
Williams  v.  Brownhead,  19  Wall. 
563,  571,  22  L.  ed.  184.  187.  See 
Chadbourne  v.  Coe,  51  Fed.  479. 
9  Waterman  v.  Canal-Louisiana 
IVd.   Prac.  Vol.  I.— 28. 


Bank  &   Tr.   Co.,   215  U.  S.   33.  49, 
54  L.  ed.  80,  86. 

§  118.  ISimms  v.  Guthrie,  9 
Cranch,  19,  25,  3  L.  ed.  642,  644; 
Wormley  v.  Wormley,  8  Wheat.  421, 
451,  5  L.  ed.  651,  659;  Boon's  Heirs 
v.  Chiles,  8  Pet.  532,  8  L.  ed.  1034; 
Union  Bank  of  Louisiana  v.  Staf- 
ford, 12  How.  327,  13  L.  ed.  1008; 
New  Orleans  Canal  &  Banking  Co. 
v.  Stafford,  12  How.  343.  13  L.  ed. 
1015. 

2  Wormley  v.  Wormley,  8  Wheat. 
421,  451.  5  L.  ed.  651,  659:  Removal 
Cases,  100  U.  S.  457,  25  L.  ed.  593: 
Pacific  P.  Co.  v.  Ketchum.  101  tJ. 
S.  289,  25  L.  ed.  932;  Wablen  v. 
Skinner,  101  U.  S.  577,  25  L.  ed. 
963;  Harter  v.  Kernochairl  103  U. 
S.  562;  supra,  §  60. 

3  Wormley  v.  Wormley.  8  Wheat. 
421.  5  L.  ed.  651  ;  Taylor  v.  Holmes, 
14  Fed.  499.  But  see  Watts  v. 
Waddle.   1    McLean,  200. 

4  Pacific  R.  Co.  v.  Ketchum.  101 
TT.  S.  289,  298,  25  L.  ed.  932,  936. 


404 


PARTIES. 


[§     119 


naked,  legal  title  having  no  interst  in  the  controversy.5  A  per- 
son against  whom  an  injunction  is  sought,  unless  he  consents 
thereto,  cannot  be  omitted.6  When  a  suit  is  brought  to  recover 
the  possession  of  real  or  personal  property  the  person  in  pos- 
session is  not  a  formal  party.7  Where  policy  holders  sued  to 
enforce  their  rights  against  assets  transferred  to  insurance  com- 
panies, with  whom  they  had  not  contracted,  and  the  bill  also 
prayed  relief  against  funds  deposited  by  some  of  the  corpo- 
ration defendants  with  the  State  auditor;  it  was  held  that  his 
absence  would  not  prevent  the  grant  of  the  rest  of  the  relief 
which  the  complainants  sought.8 

§  119.  Parties  whose  interest  is  separable.  The  second 
class  is  not  so  easy  to  define;  and  it  is  difficult  to  mark  the 
limits  between  this  and  the  third  class  of  parties  who  are 
always  indispensable.  It  includes  all  having  an  interest  in  the 
controversy  so  far  separable  from  that  of  those  before  the 
court  that  a  decree  can  be  made  and  enforced  which  disposes 
of  the  matter  in  dispute  between  the  latter  without  affecting 
their  ria'hts.1  Thus,  a  trustee  or  director  or  executor  bevond 
the  jurisdiction  has  been  held  properly  omitted  in  a  suit 
against  his  colleagues  for  a  breach  of  trust,  or  for  an  account- 
inff.2     For  a  trustee's  liability  is  joint  and  several.       One  of 


5  Simnis  v.  Guthrie,  9  Cranch,  19, 
2.5,  3  L.  ed.  042,  044;  Boon's  Heirs 
v.  Chiles,  8  Pet.  532,  8  L.  ed.  1034; 
Union  Bank  of  Louisiana  v.  Staf- 
ford, 12  How.  327,  13  L.  ed.  1008; 
New  Orleans  Canal  &  Banking  Co. 
v.  Stafford.  12  How.  343.  13  L.  ed. 
1015;  Walden  v.  Skinner,  101  I  .  S. 
577,  588,  25  L.  ed.  903,  9G7;  Bacon 
v.  Rives,  106  U.  S.  99.  27  L.  ed.  09 ; 
Jackson  v.  Jackson,  C.  C.  A.,  175 
Fed.  710,  717. 

6  Ward  v.  Arredondo,  1  Paine, 
4Kt:  Mills  v.  Hard,  32  Fed.  127. 

7  Mass.  &  So.  Const.  Co.  v.  Cane 
(reck  Tp.,  155  U.  S.  2S3,  39  L.  ed. 
152. 

8  Watson  v.  National  Life  &  Tr. 
Co..  C.  C.  A..  162   Fed.  7. 

§  119.  l  Cameron  v.  McRoberts, 
3  Wheat.  591.  4  L.  ed.  467;  Mallow 


v.  Hinde,  12  Wheat.  193,  6  L.  ed. 
599;  Gridley  v.  Wynant,  23  How. 
500,  16  L.  ed.  411;  Horn  v.  Lock- 
hart,  17  Wall.  570,  21  L.  ed.  657; 
Nesmith  v.  Calvert,  1  Woodb.  &  M. 
34. 

2  Parsons  v.  Howard,  2  Woods,  1, 
5;  Heath  v.  Erie  Ry.  Co..  8  Blatehf. 
C.  C.  345;  Hazard  v.  Durant,  19 
Fed.  471,  476:  Plume  &  A.  Mfg.  Co. 
v.  Baldwin.  87  Fed.  785;  Bay  State 
Gas  Co.  v.  Rogers,  147  Fed.  557, 
where  it  was  not  charged  that  the 
omitted  trustees  had  shared  in  the 
money,  as  to  which  an  accounting 
was  prayed.  But  see  Wall  v.  Thom- 
as, 41    Fed.  620. 

3  Parsons  v.  Howard.  2  Woods,  1, 
5;  Heath  v.  Erie  Ry.  Co.,  8  Blatehf. 
347. 


§   119] 


SEPARABLE  INTERESTS. 


r.): 


the  next  of  kin4  may  sue  an  administrator  and  his  sureties; 
and  a  legatee,5  at  least  if  not  a  residuary  legatee,6  may  sue  an 
executor  to  recover  his  share  of  a  decedent's  estate  without 
joining  the  rest  of  the  class  to  which  he  belongs.  It  seems  that 
the  executor  of  a  dead  debtor  need  not  be  a  party  to  a  bill 
brought  by  a  creditor  of  the  estate  to  obtain  payment  out  of 
assets  in  the  hands  of  a  legatee.7  One  of  several  tenants  in 
common  is  not  an  indispensable  party  to  a  suit  by  another 
against  a  stranger,  to  establish  the  plaintiff's  interest  in  the 
property.8  "'In  suits  to  execute  the  trusts  of  a  will,  it  shall 
not  be  necessary  to  make  the  heir  at  law  a  party ;  but  the  plain- 
tiff shall  be  at  liberty  to  make  the  heir  at  law  a  party  whore 
he  desires  to  have  the  will  established  against  him."9  It  has 
been  held :  that  an  heir  at  law,  whose  presence  could  oust  the 
jurisdiction,  may  be  omitted  from  a  suit  by  another  heir,  to 
set  aside  a  deed  and  will  by  their  common  ancestor,  and  to 
recover  the  plaintiff's  share  of  the  common  property.10  The 
mortgagor  is  not  an  indispensable,  although  he  is  a  proper, 
party  to  a  bill  to  collect  a  mortgage  from  a  purchaser  who  has 
assumed  it,  when,  before  the  bill  is  filed,  the  mortgaged  prop- 
erty was  sold  upon  the  foreclosure  of  a  prior  mortgage ;  n  nor 
are  the  heirs  of  the  mortgagor  indispensable  parties  to  a  fore- 


4  Payne  v.  Hook.  7  Wall.  425,  19 
L.  ed.  260.  See,  however,  West  v. 
Randall.  2  Mason,  181;  Wisner  v. 
Barnet,  4  Wash.  C.  C.  631,  642; 
Greene  v.  Sisson,  2  Curtis,  171. 

5  Dandridge  v.  Washington's  Ex'rs, 
2  Pet.  377,  7  L.  ed.  457.  See  West 
v.  Randall,  2  Mason,  181. 

6  See  McArthur  v.  Scott.  113  U. 
S.  340,  395.  28  L.  ed.  1015:  Braduin 
v  Harpur,  Ambler,  374:  Hawly  v. 
Harvey.  4  Beav.  215;  S.  c.  5  Beav. 
134. 

'Milligan  v.  Milledge,  3  Cranch, 
220,  2  L.  ed.  417. 

S.Martin  v.  Fort.  S3  Fed.  19.  27 
C.  C.  A.  428:  Williams  v.  Cr&bb, 
117  Fed.  193.  54  C.  C.  A.  213.  59 
L.R.A.  425;  North  Carolina  Mining 
Co.  v.  Westfeldt,  151  Fed.  290.  296; 
Alfred  v.  Smith,   135  N.  C.  443.  452, 


47  S.  E.  597,  65  L.R.A.  924;  Browne 
v.  Browne,  Fed.  Cas.  No.  2,035  (1 
Wash.  C.  C.  429). 

9  Eq.  Rule  41,  copied  from  Eq. 
Rule  50  of  1S42.  It  has  been  held: 
that  the  heirs  of  a  decedent,  who 
hold  a  beneficial  life  interest  in, 
and  a  power  of  testamentary  ap- 
pointment over,  certain  property, 
are  not  indispensable  parties  to  a 
suit  against  the  representatives  of 
the  trustee  to  enforce  the  rights  of 
the  complainants  to  the  same.  Mar- 
tin v.  Fort.  83  Fed.  19.  27  C.  C.  A. 
428. 

10  Williams  v.  Crabb.  117  Fed. 
193.  54  C.  C.  A.  213.  59  L.R.A.  425. 

11  Kelly  v.  Ashford,  133  Fed.  610. 
62G,  But  see  Skinner  v.  Barker, 
23  Colo.  .".33.     Supra,  §   112. 


43  G  PARTIES.  [§    119 

closure  suit,  when  the  bill  and  answer  show  that  the  entire 
interest  in  the  premises  has  passed  to  the  defendant;  although 
the  bill  alleges  that  it  passed  by  descent  at  the  death  of  the 
mortgagor,  and  the  answer  that  the  defendant  had  acquired  it 
bv  purchase.12  Subsequent  lienors  are  not  indispensable  par- 
ties to  a  foreclosure.13  Where  the  title  to  part  of  the  mortgaged 
premises  had  passed  to  a  sovereign,  who  could  not  be  sued,  and 
all  the  other  parties  in  interest  were  joined ;  it  was  held,  that 
the  court  could  except  the  land  so  conveyed,  decree  a  sale  of 
the  balance  and  enter  a  deficiency  judgment,  if  the  proceeds 
of  the  sale  were  insufficient.14  Persons  in  possession  of  the 
property,  as  agents  of  a  defendant,  are  not  indispensable  par- 
ties to  a  foreclosure  suit.15  It  has  been  held :  that  the  pledgee 
of  corporate  stock  is  not  an  indispensable  party  to  a  suit  to 
determine  the  title  to  the  name;  provided  that  its  citizenship 
would  defeat  the  jurisdiction;  and  that  the  court  may,  in  its 
decree,  protect  the  interests  of  the  pledgee,  by  declaring  the 
stock  to  be  subject  to  the  same  lien,  if  any,  that  it  had  at  the 
beginning  of  the  suit.16  It  has  been  held:  that  neither  a 
State,  nor  any  of  its  officers,  is  a  necessary  party  to  a  suit  by 
an  executor  to  compel  a  corporation  to  transfer  to  him  stock 
standing  in  the  testator's  name,  with  a  claim  for  damages  be- 
cause of  the  delay,  although  the  stock  is  subject  to  a  lien  for 
an  inheritance  tax.17  It  has  been  held  that  the  mortgagor  is 
not  an  indispensable  party  to  a  suit  by  the  mortgagee  to  enjoin 
the  enforcement  against  the  mortgaged  property  of  unconsti- 
tutional legislation,18  or  to  a  suit  by  the  mortgagee,19  or  bv  the 

12  Cooper    v.    Johnson,     1.17     Fed.  15  Golden   Cross  Min.  &  Mill.   Co. 
104.                                                                  v.  Free  Gold  Min.  Co.,  C.  C.  A.,  154 

13  Brewster  v.  Wakefield,  22  How.       Fed.  441. 

]]8.  129,  16  L.  ed.  301;  Union  Bank  16  Edwards    v.    Mercantile    Trust 

of    Louisiana    v.    Stafford,    12    How.  Co.,  124  Fed.  381,  389. 

327,   13   L.   ed.    1008;    New  Orleans  "Jessup  v.  Chicago  &  N.  W.  Ry. 

C.    &    B.    Co.    v.    Stafford,    12    How.  Co.,  18S  Fed.  931. 

343.  ].">  L.  ed.  1015;  Howard  v.  Rail-  18  Knickerbocker   Tr.    Co.    v.    City 

way   Co.,   101   U.   S.   837,  25   L,   ed.  of   Kalamazoo,    182   Fed.   865;    City 

1081  ;  Nalle  v.  Young,  1G0  U.  S.  (524,  and  County  of  Denver   v.  N.   Y.  Tr. 

40  L.  ed.  560.     See  supra,  §   112.  Co.,  C.  C.  A  .  187  Fed.  890. 

14  Kawananakoa  v.  Polyblank.  205  19  Ban  v.   Columbia   Southern   Ry. 
I".  S.   349.  Co.,  C.  C.  A.,  117  Fed.  21. 


§  119]  SEPARABLE  INTERESTS.  437 

bondholders,20  to  enjoin  trespasses  on  the  mortgaged  property 
by  striking  employees  of  the  mortgagor,  and  even  that  such 
bondholders  need  not  allege  a  previous  demand  for  the  insti- 
tution of  such  a  suit  by  the  mortgagor  or  by  their  trustee.21 
To  a  bill  to  enjoin  trespass  upon  land,  the  person  under  a 
contract  with  whom  the  trespassers  claim  the  right  to  use  the 
land  is  not  an  indispensable  party.22  The  early  English  cases 
hold:  that  in  a  suit  against  a  firm,  by  strangers,  a  partner  be- 
yond the  jurisdiction  may  be  omitted  if  no  injustice  will  be 
done  him  by  a  decree  in  his  absence;23  but  the  American  au- 
thorities seem  to  be  opposed  to  this.24  It  has  been  held  that  in 
a  suit  by  one  partner  against  another  for  an  account  of  money 
received  by  the  defendant  in  excess. of  his  share  of  the  firm 
assets,  partners  beyond  the  jurisdiction  may  be  omitted  if  it 
appears  that  each  has  received  his  full  share  of  the  joint  prop- 
erty,25 and  that  a  partner,  whose  sole  interest  is  a  share  of  the 
joint  profits  of  a  contract,  is  not  an  indispensable  party  to  a 
suit  by  another  member  of  the  firm,  to  foreclose  a  mechanic's 
lien  for  the  gross  amount  due.26  A  subcontractor  who  has 
fraudulently  collected  money  from  the  United  States  may  be 
sued  at  law  to  recover  this  without  the  joinder  of  the  contractor, 
although  the  latter  at  the  former's  instigation  made  the  fraud u- 

20  The  trustee  does  not  seeem  to  ard,  2  Woods,  1 ;  Bell  v.  Donoughue, 
have  been  a  party,  although  the  ob-  17  Fed.  710;  Mudgett  v.  Gager,  52 
jection  for  not  joining  appears  not       Maine,  541.     See  §  119,  infra. 

to  have  been  raised.  Carter  v.  Fort-  25  Towle      v.      Pierce,      21       Met. 

ney,  170  Fed.  463.     But  see  Consol.  (Mass.)    329;    Kilboum   v.    Sunder- 

Water  Co.  v.  City  of  San  Diego,  89  land,  130  U.  S.  505,  32  L.  ed.  1005. 

Fed.  272.  But  see  §  119,  infra. 

21  Carter  v.  Fortney,  170  Fed.  463.  26  Ex    parte    Haggerty,    124    Fed. 

22  Paint  Creek  Co.  v.  Gallego  Coal  441.  Where  the  business  of  the 
&  Land  Co.,  C.  C.  A.,  166  Fed.  62.  firm  was  conducted  by  two   houses, 

23  Cowslad  v.  Cely,  Prec.  Ch.  83;  and  those  who  managed  one  house 
Darwent  v.  Walton.  2  Atk.  510;  had  assigned  their  interest  to  the 
Calvert  on  Parties,  Book  III,  ch.  managers  of  the  other;  it  was  held: 
xxiii;  Smith  v.  Consumers'  Cotton-  that  the  former,  who  filed  a  flis- 
Oil  Co.,  86  Fed.  359;  Vose  v.  Phil-  claimer,  might  be  made  defendants; 
brook,  3  Story  C.  C.  335.  Of.  Per-  and  that  their  citizenship,  which 
kins  v.  Hendryx,  127  Fed.  448;  s.  was  the  same  as  that  of  the  prin- 
C.,  149  Fed.  526.  529:  Lawrence  v.  cipal  defendant,  did  not  defeat  the 
Pokes,  53   Maine,   110.  jurisdiction.      Poole    v.    West    Point 

24  Raphael  v.  Trask,  194  U.  S.  Butter  &  Cheese  Ass'n,  30  Fed.  513. 
272.  48  L.  ed.  973;  Parsons  v.  How- 


i:;s 


J'AKTIES. 


[§    119 


lent  representations.27  "The  owners  of  partial  interests  in 
<•< .11  tracts  for  land,  acquired  subsequently  to  their  execution, 
are  not  necessary  parties  to  bills  for  their  enforcement.  The 
original  parties  on  one  side  are  not  to  be  fixed  np  in  contro- 
versies between  the  parties  on  the  other  side,  in  which  they 
have  no  concern."28  An  heir  may  file  a  bill  for  the  specific 
performance  of  a  contract  entitling  his  ancestor  to  purchase 
laud  without  bringing  in  the  personal  representative  of  his  an- 
cestor, provided  that  he  offers  himself  to  provide  for  the  pay- 
ment of  the  purchase-money.29  Specific  performance  of  a  con- 
tract for  the  sale  of  land  may  be  enforced  against  one  of  several 
joint  tenants  without  joining  the  others  with  him  as  defend- 
ants.30    It  was  held  that  to  a  bill  to  set  aside  a  deed  and  power 


27  U.    S.    v.    Salisbury,    157    U.    S. 
121,  39  L.  ed.  (142. 

28  Mr.  Justice  Field  in  Willard  v. 
Tayloe,  8  Wall.  557.  571,  19  L.  ed. 
501,  505.  But  see  Hoxie  v.  Carr,  1 
Sumner.  173.  It  lias  been  beld: 
that,  to  a  suit  by  an  assignee  of 
part  of  the  rights  under  a  contract 
to  compel  specific  performance  of 
the  same,  the  owners  of  the  other 
parts  are  necessary  parties  under 
the  old  Chancery  rule;  but  not  in- 
dispensable parties  under  the  rule 
of  the  Federal  court.  Rogers  v.  Pen- 
obscot Min.  Co.,  C.  C.  A.,  154  Fed.. 
606,  (J  10.  A  party  to  a  contract, 
who  has  received  a  release,  Dodge 
v.  Frank  Waterhouse  &  Co.,  156 
Fed.  57 :  or  one  who  has  released 
his  interest,  Canal  Co.  v.  Gordon, 
0  Wall.  561,  18  L.  ed.  894.  is  not 
an  indispensable  party  to  a  suit  to 
enforce  the  same. 

29  Prout    v.    Roby.    15    Wall.    471. 

21  L.  ed.  58. 

30  Stephen  v.  Beall,  22  Wall.  329, 

22  L.  ed.  7S0.  It  has  been  held, 
thai  a  corporation,  which  is  not  a 
party  to  a  contract  for  the  convey- 
ance of  certain  property  thereto,  is 
not  an  indispensable  party  to  a  suit 


to  compel  specific  performance, 
Rogers  v.  Penobscot  Miri:  Co..  C.  C. 
A.,  154  Fed.  606.  616;  and  that 
corporations  are  not  indispensable 
parties  to  a  suit  for  specific  per- 
formance of  a  contract  to  convey 
land  owned  by  them,  which  was 
made  on  their  behalf  by  a  corpora- 
tion which  held  the  control  of  their 
stock,  Texas  Co.  v.  Central  Fuel  Oil 
Co.,  C.  C.  A.,  194  Fed.  1.  A  rail- 
way company  is  not  an  indispensa- 
ble party  to  a  bill  against  its  re- 
ceiver to  enforce  specific  perform- 
ance of  a  contract  made  by  it.  Ex- 
press Co.  v.  Railroad  Co.,  99  U.  S. 
191,  25  L.  ed.  319.  To  a  bill  to 
enjoin  the  execution  of  a  judgment 
of  ejectment  and  to  decree  a  con- 
veyance of  lands,  when  the  plain- 
tiffs had  an  equitable  title  only,  the 
persons  whose  legal  title  the  com- 
plainants asserted  were  held  prop- 
erly omitted,  when  no  relief  was 
prayed  against  them,  and  their 
joinder  would  have  ousted  a  court 
of  jurisdiction.  Simms  v.  Guthrie.  9 
Cranch,  19,  25,  3  L.  ed.  642.  044. 
See  also  Boon's  Heirs  v.  Chiles,  8 
Pet.  532.  8  L.  ed.  1034.  But  com- 
pare  Mallow   v.   Hinde,    12    Wheat. 


§  119]  SEPARABLE  INTERESTS.  4:39 

of  attorney  for  the  sale  of  land,  a  purchaser  of  part  of  the  land 
from  one  of  the  defendants  was  not  an  indispensable  party. 
The  assignor  of  a  claim  is  not  a  necessary  party  to  a  suit  upon 
it  by  his  assiimee,32  unless  the  assignment  be  executory,33  tin- 
assignor  has  an  equitable  interest  in  the  claim.34  Where  a 
contract  is  joint  and  several,  all  parties  to  the  same  are  not  in- 
dispensable to  a  suit  to  enforce  it.35  A  party  to  a  contract  with 
a  trustee,  which  has  been  released,  is  not  an  indispensable  party 
to  a  suit  by  the  cestui  que  trust  to  compel  such  trustee  to 
account  for  the  loss  he  has  thereby  sustained.36  It  has  been 
held:  that  a  State  is  not  an  indispensable  party  to  a  bill,  by 
the  United  States  against  a  private  individual,  to  cancel  a 
contract  between  him  and  the  State  for  the  purchase  of  land 
obtained  by  the  State  from  the  national  Government  through 
mistake  or  fraud.37  It  has  been  held  that  a  corporation,  whose 
citizenship  will  defeat  the  jurisdiction,  is  not  an  indispensable 
party  to  a  suit  by  a  minority  stockholder  to  compel  the' majority 
to  account  to  the  complainants  for  their  share  of  the  property, 
which  such  majority  have  misappropriated38  that  a  corporation 
is  not  an  indispensable  party  to  a  suit  in  equity  by  bondholders 
against  directors,  to  compel  them  to  make  good  fraudulent 
representations  recited  in  their  mortgage,39  that  an  officer  of  a 
corporation,  who  has  deposited  with  the  defendants  money, 
which  it  is  charged  he  embezzled  from  the  company,  is  not  an 
indispensable  party  to  a  suit  to  establish  a  trust  in  the  same.40 
The  holder  of  a  certificate  of  stock  in  a  corporation,  which  has 

193,  6  L.  ed.  590.     A  border  case  is  35  Richmond      Cedar      Works      v. 

Elmendorf  v.  Taylor,  10  Wheat.  152.  Etickner.    181    Fed.   424.     Under   the 

6  L.  ed.  289.  Iowa  Code  of  1807,  §  3465,  a  surety 

31  Billings  v.  Aspen  M.  &  S.  Co..  may  be  sued  without  joining  the 
51  Fed.  338,  350.  See  Hieklin  v.  principal  upon  the  bond.  Kaus  v. 
Marco,  56  Fed.  540.  Am.  Surety  Co.,  100  Fed.  072. 

32  P>atesville  Tnst.  v.  Kauffman.  36  Frank  Waterhouse  &  Co.  v. 
18  Wall.  151,  21   L.  ed.  775;   Treco-  Dodge.  C.  6.  A..   102  Fed.    1. 

thick  v.  Austin,  4  Mason,  16;  Rogers  87  Williams    v.    1".    S..    138    U.    S. 

v.  Penobscot  Min.  Co..  C.  C.  A..   154  514.  510,   34   L.  ed.    1020.    1028. 

Fed.  600.                                                       *  38  Kuchler  v.  Greene.   103  Fed.  01. 

33  Land  Co.  v.  Elkins,  20  Fed.  545.  39  Slater     Tr.     Co.     v.     Randolph- 

34  Western     Nat.     P>ank     v.     Arm-  Macon  Coal  Co..  100  Fed.  171 . 
strong,  152  l".  S.  340.  38  L.  ed.  470:  40  White  Swan    Mines  Co.   v.  Bal- 
Huhbard    v.    Manhattan   Tr.    Co.,    C.  iet.   134  Fed.  1004. 

C.  A..  87  Fed.  51,  57. 


440  PARTIES.  [§     11!) 

been  cancelled  by  a  decree  in  another  court,  is  not  an  indis- 
pensable party  to  a  bill  to  compel  the  issue  to  the  complainant 
of  a  new  certificate  for  the  same  stock.41  Stockholders  and 
creditors  are  not  necessary  parties  to  a  suit  to  foreclose  a  lien 
Upon  the  property  of  the  corporation.42  Tt  has  been  held:  that 
to  a  hill  to  restrain  the  directors  of  a  corporation  from  negotiat- 
ing a  fraudulent  sale  of  its  property,  the  person  to  whom  the 
sale  is  about  to  be  made  is  not  an  indispensable  party  if  no  con- 
tract has  been  made  with  him;43  that  a  party,  whose  presence 
will  defeat  the  jurisdiction,  is  not  an  indispensable  party  to  a 
suit  to  enjoin  the  making  of  a  contract  with  him  ; 44  that  con- 
tractors of  a  city  are  not  indispensable  parties  to  a  suit  to 
enjoin  the  municipal  corporation  from  creating  a  debt  beyond 
the  constitutional  limit,  by  carrying  out  its  contract  with 
them,45  and  that  a  non-resident  is  not  an  indispensable  party 
to  a  bill  to  enjoin  the  transfer  of  property  to  it.*6  In  proceed- 
ings under  section  18  of  the  Interstate  Commerce  Act  against  a 
railroad  company  to  enforce  an  order  of  the  commission,  it  is 
not  necessary  that  another  carrier  making  the  forbidden  rate 
jointly  with  the  defendant  be  made  a  party  when  it  is  without 
the  jurisdiction.47  To  a  suit  by  one  indorser  of  a  bill  of 
exchange  to  restrain  the  collection  of  a  judgment  against  him 
upon  the  ground  that  the  bill  had  been  paid  by  an- 
other indorser,  the  latter  is  not  a  necessary  party.48 
To  a  bill  by  a  creditor  to  satisfy  a  judgment  out 
of  land  in  a  debtor's  possession,  but  fraudulently  conveyed  by 
him  to  a  person  beyond  the  jurisdiction  of  the  court,  the  person 
in  whose  name  the  land  stood  was  held  not  to  be  an  indispen- 

41  Citizens     Sav.    &    L.     Ass'n    v.  tuimva.    120   Fed.   309-     But   see    in- 

Belleville  &  S.  I.  R.  Co.,  C.  C.  A.,  fra,  §  119. 

117   Fed.   109.  46  Wilson  v.  Am.  Palace  Car.  Co., 

«Godcliaux    v.   Morris,   C.    C.   A.,  67  N.  J.  Eq.  262,  58  At].  195.     See 

121    Fed.  482.  City  Water  Supply  Co.  v.  Ottunnva, 

43  Abbot    v.   American   H.   R.    Co.,  120  Fed.   309. 

4    Blatchf.    C.    C.    489;    Wallace    v.  « Interstate  Com.  Com'n  v.  Texas 

Holmes.  9  Blatchf.  C.  C.  65.  '&   P.  Ry.  Co.,  52   Fed.   187:   s.  c.  as 

44  Cherokee  Nation  v.  Hitchcock,  T.  &  P.  Ry.  Co.  v.  Interstate  Com. 
187  U.  S.  294.  47  L.  ed.  183;  Wilson  Com'n.  162  U.  S.  197,  265,  40  L. 
v.  Am.  Palace  Car  Co.,  67  N.  J.  Eq.  ed.  940. 

262.  58  Atl.  195.  48  Atkins  v.  Dick,  14  Pet.  114,  10 

45  (ify    Water    Supply    Co.   v.   Ot-       L.  ed.  378. 


119] 


SEPARABLE   INTERESTS. 


411 


able  party.49  It  has  been  held  that  a  tenant  in  common  of 
a  water-right  may  sue  to  enjoin  an  injury  to  the  property  with- 
out making  his  co-tenant  a  party,50  but  that  where  the  com- 
plainant seeks  an  injunction  against  interference  by  owners  of 
the  upland  with  his  right  to  divert  the  water  for  irrigation,  all 
persons  who  claim  any  right  to  use  the  waters  of  the  stream 
are  indispensable  parties,  although  their  joinder  would  defeat 
the  jurisdiction.51  It  has  been  said  that,  to  a  bill  by  a  private 
individual  to  enjoin  the  maintenance  of  a  public  nuisance, 
neither  persons  jointly  interested  with  him  nor  those  jointly 
guilty  with  the  defendant  are  indispensable  parties.52  It  has 
been  suggested  that  the  absence  of  one  person  guilty  of  a  joint 
fraud  might  not  prevent  the  court  from  taking  jurisdiction 
over  the  others.53  And  in  general  to  a  suit  for  an  injunction 
against  a  tort,54  not  committed  under  color  of  a  contract  right, 
or  against  the  infringement  of  a  patent  when  no  accounting 
is   prayed,55   one   or   more  of   the   joint  wrong-doers   may   be 


49  McCoy  v.  Rhodes,  11  How.  131, 
141.  13  L.  ed.  G34,  638.  But  see 
Billings  v.  Aspen  M.  &  S.  Co.,  51 
Fed.  338. 

50  Union  M.  &  M.  Co.  v.  Dangberg. 
81  Fed.  73,  87;  Washington  State 
Sugar  Co.  v.  Sheppard,  186  Fed. 
233. 

51  Washington  State  Sugar  Co.  v. 
Sheppard,  186  Fed.  233.  In  view 
of  the  water  code  of  Oregon,  Act  of 
February  24,  1909,  L.  1909,  p.  319, 
it  was  held  that,  where  a  suit  was 
there  brought  to  enjoin  the  defend- 
ants from  using  the  waters  of  a 
stream,  the  Federal  court  should  re- 
quire the  parties  either  to  proceed 
under  the  statute  or  to  bring  in  all 
other  persons  in  interest.  Pacific 
Live  Stock  Co.  v.  Silvies  River  Irr. 
Co.,  200  Fed.  487. 

5«  Miss.  &  Mo.  R.  Co.  v.  Ward,  2 
Black,  485,  17  L.  ed.  311. 

53  Judge  D wight  Foster  in  Palmer 
v  Stevens,  100  Mass.  461,  466.  See 
also  Heath  v.  Erie  Ry.  Co..  8 
Blatchf.  C.  C.  347  and  note  2  supia. 


But   see    Bell    v.    Donohoe,    17    Fed. 
710;    Wall  v.  Thomas.  41    Fed.   620. 

54  Miss.  &  Mo.  R.  Co.  v.  Ward,  2 
Black,  485,  17  L.  ed.  311;  Cole  Sil- 
ver Min.  Co.  v.  Virginia  &  Gold  Hill 
Water  Co.,  Fed.  Cas.  No.  2,989  (1 
Sawy.  470).  The  directors  of  a  cor- 
poration are  not  indispensable  par- 
ties to  a  suit  by  a  stockholder  to 
restrain  it  from  acting  in  violation 
of  his  rights  fraudulently  or  ultra 
vires,  Geer  v.  Mathieson  Alkali 
Works,  190  U.  S.  428,  436,  47  T>. 
ed.  1122,  1120;  Hatch  v.  Chicago, 
Bock  Island  &  Pac.  R.  R.  Co..  »i 
Blatchf.  105,  114;  Sidway  v.  Mis- 
souri L'd.  &  L.  S.  Co.,  116  Fed.  381  ; 
Witherbee  v.  Bowles,  201  X.  V.  427. 
A  corporation,  the  entire  capital 
stock  of  which  is  owned  by  another 
company,  is  not  an  indispensable 
party  to  a  suit  by  a  stockholder  of 
the  latter,  to  restrain  the  latter 
from  leasing  the  former's  railroad. 
Sabre  v.  United  Tr.  &  El.  Co.,  156 
Fed.   79,  81. 

55  American  B.-Mach.  Co.  v.  Cros- 


442 


PARTIES. 


[§  1*9 


omitted.  In  an  action  by  a  creditor  of  a  corporation  to  enforce 
the  individual  liability  of  its  directors  or  stockholders,  or  to 
t'cllcct  unpaid  assessments  or  subscriptions  from  them,  he  can- 
not usually  sue  alone  at  law,  but  should  file  a  bill  in  equity 
in  behalf  of  himself  and  the  other  creditors,  if  any;56  accord- 
ing to  his  pleasure.57  The  United  States  are  not  indispensable 
parties  to  a  suit  to  enjoin  a  marshal  from  executing-  a  judgment 
in  their  favor  which  was  entered  without  jurisdiction;58  but  it 
has  been  held  that  an  Indian  agent  is  a  proper,  although  not  an 
indispensable,  party  to  a  suit  to  determine  rights  under  leases 
of  Indian  lands.59  A  State  is  not  an  indispensable  party  to  a 
bill  seeking  to  restrain  its  officers  from  levying  for  its  benefit 
an  illegal  tax  ; 60  nor,  it  has  been  held,  to  a  bill  to  prevent  their 
illegal  issue  of  land  warrants  for  property  which  it  had  agreed 
to  convey  to  the  plaintiff ; 61  nor  to  a  bill  to  restrain  their  un- 
lawful issue  of  bonds  which  would  diminish  the  value  of 
bonds  held  by  the  complainant.62  To  such  bills  the  persons  to 
whom  the  unlawful  issue  of  bonds  or  land  warrants  is  about  to 
be  made,  are  not  indispensable  parties.63  It  has  been  said, 
that,  in  proceedings  to  establish  claims  against  decedents 
estates,  the  Federal  courts  should  follow  the  local  law,  and  that 


man.  57  Fed.  ]021  (partners).  The 
officers,  agents  and  stockholders  of 
a  corporation  may  be  enjoined  from 
infringing  a  patent  while  acting  for 
the  company  when  the  corporation 
itself  is  not  a  party  and  is  beyond 
the  jurisdiction.  Edison  El.  L.  Co. 
v.  Packard  El.  L.  Co..  Gl    Fed.  1002. 

56  Homor  v.  Henning,  93  U.  S. 
228,  23  L.  ed.  S79 ;  Terry  v.  Little. 
]01  U.  S.  21(1.  2.")  L.  ed.  804:  Terry 
v.  Tubman.  92  U.  S.  156,  23  L.  ed. 
537:  Pollard  v.  Bailey.  20  Wall.  520, 
22  L.  ed.  37S:  Welles  v.  Craves.  41 
Fed.  459;  First  Nat.  Bank  v.  Pea- 
ve;  .  75  Fed.  154.  But  see  Alder  son 
v.  Dole.  C.  C.  A..  74  Fed.  29:  supra, 
§  81. 

S'Ogilvie  v.  Knox  Ins.  Co.,  22 
How.  38(1.   10   L.  ed.   349:    Hatch  v. 


Dana.  101  U.  S.  205,  25  L.  ed.  885: 
Manufacturing  Co.  v.  Bradley,  105 
U.  S.  175,  2G  L.  ed.  1034. 

58  Buckley  v.  U.  S.,  19G  Fed.  429. 

59  Texas  Co.  v.  Central  Ftiel  Oil 
Co..  C.  C.  A..  194  Fed.  1. 

eoOshorn  v.  Bank  of  U.  &.,  9 
Wheat  73S.  G  L.  ed.  204:  Dodge  v. 
Wcolsey.  18  How.  331.  15  L:  ed.  401. 

61  Davis  v.  Gray,  1G  Wall.  203, 
21  L.  ed.  447:  Hancock  v.  Walsh.  3 
Woods.  351.  But  see  Cunningham 
v.  Macon  &  B.  R.  Co.,  109  I".  S. 
44G.  453.  27  L.  ed.  992.  994. 

62  Board  of  Liquidation  v.  Mc- 
Comb.  92  I".  S.  531.  23  L.  ed.  623; 
supra.    §    105. 

63  Davis  v.  Cray,  1G  Wall.  203, 
233,  21  L.  ed.  447,  457:  Cherokee 
Nation  v.  Hitchcock,  187  U.  S.  294, 
4  7  L,  ed.  183. 


§  120]  INDISPENSABLE  PARTIES 


44 


•  > 


no   persons   are  indispensable  parties  who   won],]   not  be  such 
were  the  proceedings  instituted  in  a  State  court.64 

§  120.  Parties  indispensable  to  a  decree.  Xo  suit,  how- 
ever, can  proceed  unless  the  court  have  before  it  as  parties  all 
persons  who  will  be  directly  affected  by  the  decree  sought,  or 
whose  obedience  is  necessary  to  its  enforcement,  when  it  does 
not  appear  that  they  consent  thereto.1  A  person  is  affected  bv 
a  decree  when  his  rights  against,  or  liability  to,  any  of  the  par- 
ties to  the  suit  is  thereby  determined.  If  a  decree  in  favor  of 
the  complainant  would  cast  a  cloud  upon  another's  title,  that 
person,  it  seems,  is  thereby  directly  affected.2  All  tenants  in 
common  of  land  are  necessary  parties  to  an  action  for  trespass 
upon  the  same.3 

It  has  been  held  that  the  several  lessors  of  lands  are  indis- 
pensable parties  to  a  suit  between  their  respective  lessees,  when 
the  validity  of  their  title  is  in  question.4  The  United  States  are 
necessary  parties  to  a  suit  brought  by  a  State  against  the 
Secretary  of  the  Interior  to  establish  the  title  to,  and  to  pro- 
vent  the  other  disposition  of,  lands  which  the  Xational  Govern- 
ment claims  to  own.5  A  State  is  an  indispensable  party  to  a 
bill  against  its  officers  to  compel  specific  performance  bv  them 
for  it  of  its  contract  for  the  sale  of  land;6  or  to  establish  a 
claim  to  property  held  by  its  officers  claiming  a  title  in  the 
State  thereto;611  or  a  claim  to  corporate  stock  registered  in  its 
name,  the  certificates  of  which  are  held  by  its  officers;7  or  to 

64  Farmers'    Bank    of    Cuba    City,  3  Cochran    v.    Brannan,    196    Fed 

Wis.   v.    Wright.    158    Fed.   S41.  210. 

§  120.     iSee     §     122.       But     see  4  South  Penn  Oil  Co.  v.'  Miller,  C 

Eagle    Mfg.    Co.    v.    Miller.    41     Fed.  C.  A..   175  Fed.  720.  736. 

'  5  State   of   Louisiana    v.   Garfield, 

8 Young  v.  GuShing,  4   Biss.  456;  211    V.  S.  7o,  :,:\  L.  ed.  02. 
California   v.  Southern   Pae.   R.  Co.,  6  Preston   v.   Walsh.   10   Fed     315 

157   C.  S.  220.  :505  L.  ed.  683.     lint  See   also   Walsh    v.    Preston,    100    V. 

see   Hicklin   v.   Marco,   56    Fed.  540.  S.  207.  27  L.  ed.  0411. 
It  was  held   improper  to  compel  de-  6a  See   §    103.   supra. 

fendant   to   make  a   deed  confirming  7  Cunningham    v.    Macon    &    B.    H. 

complainant's  title  to  land  conveyed  Co..    loo    V.  S.   44<;.   27    I.,  ed.   00->  ■ 

by  the   lattei\  grantors  wl.en   such  hritpra,  §  :!7.  Christian  v.  Atlantic  ,v 

grantors    were    not     parties';      Zen-  X.  ('.  i:.  (  ,,..  1:;:;  [\  s.  2:;:;.  :;:;  I..  « d 

bVugg    v.    Reed     (X.   .1.    (I,..    lSOiii,  5891;    stlprd    §    103 
35  Atl.  208. 


444 


PAKTIES. 


[§  120 


compel  the  removal  of  a  nuisance  from  State  laud;8  but  not, 
it  has  been  held,  to  a  bill  by  the  United  States  against  a  private 
individual  to  cancel  a  contract  between  him  and  the  State  for 
the  purchase  of  land  obtained  by  the  State  from  the  plaintiff 
through  mistake  or  fraud.9 

All  attaching  creditors  are  indispensable  parties  to  a  suit  to 
obtain  the  possession  of  assets,  which  have  been  seized  by  the 
sheriff  under  attachments  issued  at  their  application.10  The 
trustee  of  an  active  trust  is  a  necessary  party  to  a  suit  affect- 
ing the  trust  estate,11  but  the  legal  representative  of  a  trustee 
is  not  an  indispensable  party  to  a  suit  by  a  cestui  que  trust  to 
enforce  a  contract  concerning  the  trust  property  made  by  the 
former  with  the  consent  of  the  latter.12  Every  party  to  a  con- 
tract, whether  of  sale  or  for  another  purpose,  except  one  who 
has  released,13  or  assigned,14  his  interest,  or  who  has  been  re- 
leased,15 or  an  agent  through  whom  the  title  has  passed ; 16  is 
ordinarily  a  necessary  party  to  a  suit  to  enforce  it ;  17  or  to  set 
it    aside ; 18    or    unless    its    performance   would    amount    to    a 


8  Hopkins  v.  Clemson  Agricultural 
College  of  South  Carolina,  221  U. 
S.   636,  55  L.  ed.  890. 

9  Williams  v.  U.  S.,  3  38  U.  S.  514, 
516,  34  L.  ed.  1026. 

10  De  Galard  v.  Safe  Deposit  & 
Trust  Co.  of  Baltimore,  190  Fed. 
981. 

11  McRea  v.  Branch  Bank  of  Ala- 
bama. 19  How.  376.  15  L.  ed.  68S : 
O'Hara  v.  MaeCohnell,  93  U.  S.  150, 
23  L.  ed.  840;  Thayer  v.  Life  Ass'n, 
112  U.  S.  717,  28  L.  ed.  8(14:  Ameri- 
can B.  S.  v.  Price,  110  U.  S.  61,  28 
1..  ed.  70;  Billings  v.  Aspen  M.  &  S. 
Co.,  51  Fed.  338,  350;  s.  c.  in  C.  C. 
A.,  52  Fed.  250.  But  see  New  Ches- 
ter Water  Co.  v.  Holly  Mfg.  Co., 
C.  C.  A.,  53  Fed.   19;   supra,  §   113. 

12  Sage  Land  &  Improvement  Co. 
v.  Ripley,  C.  C.  A.,  192  Fed.  785, 
where  no  such  representative  had 
been    appointed. 

13  (anal  Co.  v.  Gordon,  6  Wall. 
5111.  18  L.  ed.  894. 

l*  Northern    Pac.   Rv.   Co.  v.   Kin- 


dred, 14  Fed.  77;  Mackay  v.  Ga- 
bel,  117  Fed.  873;  U.  S.  v.  Clark, 
129  Fed.  241:  O'Sliaugnessy  v. 
Humes,  129  Fed.  953. 

15  Dodgs  v.  Frank  Waterhouse 
&  Co.,  156  Fed.  57. 

16  Donovan  v.  Campion,  85  Fed. 
71;  Gross  v.  George  W.  Scott  Mfg. 
Co.,  48  Fed.  35;  Hamilton  v.  Savan- 
nah, F.  &  W.  Ry.  Co.,  49  Fed.  412; 
Mackey  v.  Gabel,  117  Fed.  873.  But 
see  California  v.  So.  Pac.  Co.,  157 
U.  S.   229,   39  L.  ed.   683. 

17  Mallow  v.  Hinde,  12  Wheat. 
193,  6  L.  ed.  599;  Shields  v.  Barrow, 
17  How.  130,  15  L.  ed.  158:  Gregory 
v.  Stetson,  133  U.  S.  579,  33  L.  ed. 
792;  Perin  v.  Megibben,  53  Fed.  86; 
Rollins  Inv.  Co.  v.  George,  4S  Fed. 
776;  Farni  v.  Tesson,  1  Black,  309, 
17  L.  ed.  67;  Judson  v.  Courier  Co., 
15  Fed.  541.  McAulay  v.  .Moody, 
185   Fed.   144. 

18  Shields  v.  Barrow.  17  How.  130, 
15  L.  ed.  158;  Coiron  v.  Millaudon, 
19   How,    113.    15   L.   ed.   575;    Gar- 


§  120] 


INDISPENSABLE   PARTIES. 


445 


nuisance;  9  or  other  tort  unconnected  with  contract;20  to  en- 
join a  persbn  from  carrying  it  into  effect;21  even,  it  has  been 
held,  in  a  case  at  circuit,  when  the  other  parties  are  co-trustees 
beyond  the  jurisdiction  of  the  court.22  Thus,  a  railway  com- 
pany is  an  indispensable  party  to  a  suit  to  enjoin  another  rail- 
way company  from  constructing  a  road  under  a  lease  by  it.23 
In  a  suit  to  enjoin  the  persuasion  and  assistance  of  contractors 
with  plaintiff  to  violate  their  obligations,  it  was  held  that  such 
contractors  were  indispensable  parties.24  The  assignors  and 
assignees  of  a  patent  are  necessary  parties  to  a  bill  against 
the  Commissioner  to  expunge  it  from  the  records  of  the  Patent- 
Office.25  To  a  bill  in  equity  by  a  State,  to  enjoin  a  corpora- 
tion from  acquiring  a  majority  of  the  stock  of  two  competing 
railroad  companies,  chartered  by  such  State,  and  thus  obtain- 
ing and  exercising  ownership  and  control  over  their  railroads ; 
these  railway  companies,  are  indispensable  parties.26    A  city  is 


lords  v.  Kelshaw,  1  Wall,  81.  17  L. 
ed.  612:  Ribon  v.  Railroad  Cos.,  16 
Wall.  446,  21  L.  ed.  367:  Lawrence 
v.  Wirtz,  1  Wash.  C.  C.  417;  Tobin 
v  Walkinshaw,  1  McAll,  26;  Bell  v. 
Donohoe,  17  Fed.  710:  Florence  S. 
Mach.  Co.  v.  Singer  Mfg.  Co.,  4 
Fisher's  Pat.  Cas.  329;  s.  c:.  8 
Blatchf.  C.  C.  113:  Chadbourne  v. 
Coe,  45  Fed.  822;  Empire  C.  &  T. 
Co.  v.  Empire  C.  &  M.  Co.,  150  U. 
S.  159,  37  L.  ed.  1037;  New  Orleans 
W.  Co.  v.  New  Orleans,  164  U.  S. 
471.  41  L.  ed.  518:  s.  c.  in  C.  C.  A., 
51  Fed.  479;  Clark  v.  Great  North- 
ern Ry.  Co.,  81  Fed.  282;  U.  S.  v. 
No.  Pac.  R.  Co.,  134  Fed.  715;  Bes- 
wick  v.  Dorris,  174  Fed.  502.  See, 
also,  Sperry  &  Hutchinson  Co.  v. 
Pommer,  199  Fed.  309.  But  see 
French  v.  Shoemaker,  14  Wall.  314, 
20  L.  ed.  852;  West  v.  Duncan,  42 
Fed.  430;  Smith  v.  Lee,  77  Fed.  779. 

19  Miss.  &  Mo.  R.  Co.  v.  Ward,  2 
Black,  485,  17  L.  ed.  311. 

20  Cole  Silver  Min.  Co.  v.  Vir- 
ginia &  Gold  Hill  Water  Co.,  Fed. 
Cas.  No.  2,989   (1   Sawy.  470).     But 


see   Anderson   et   al   v.   Bassman   et 
al.,   140   Fed.   10. 

21  Northern  Ind.  R.  Co.  v.  Michi- 
gan C.  R.  Co.,  15  How.  233.  14  L. 
ed.  674;  Raphael  v.  Trask,  194  U.  s". 
272,  48  L.  ed.  973.  But  see  Heriot 
v.  Davis,  2  Woodh.  &  M.  229;  Boon's 
Heir  v.  Chiles,  8  Pet.  532,  8  L.  ed. 
1034;  McConnell  v.  Dennis,  C.  C.  A.r 
153  Fed.   547. 

See  in  Heckman  v.  U.  S.,  224  U. 
S.  413,  56  L.  ed.  S20,  held  that  th<> 
United  States  might  sue  to  set  aside 
conveyances,  made  by  Indians,  of  al- 
lotted lands  within  the  statutory- 
period  of  restriction,  without  join- 
ing such  allottees. 

22  Wall   v.   Thomas,   41    Fed.    620. 

23  Northern  Ind.  R.  Co.  v.  Midi. 
C.  R.  Co.,  15  How.  233,  14  L.  ed. 
674. 

24  Sperry  &  Hutchinson  Co.  v.. 
Pommer,    199    Fed.    309. 

25  Backus  P.  S.  H.  Co.  v.  Si- 
monds,  2  App.  D.  ('.  290. 

26  Minnesota  v.  Northern  Securi- 
ties Co.,  184  U.  S.  199,  46  L.  ed.  499. 


2S 


44(5  parties.  L§   12Q 

an  indispensable  party  to  a  suit  by  a  company  claiming  a  street 
railroad  franchise,  to  enjoin  another  railroad  company  from  oc- 
cupying the  street.27     To  a  hill  to  set  aside  a  decree,  the  party  in 

•i«ii  28 

whose   favor  the  decree  was  made  is  an  indispensable  party. 
This  rule  applies  to  a  judgment  in  favor  of  the  United  States 
which  is  voidable,  but  not  void.29 

To  a  bill  against  the  administrator  with  the  will  annexed  of 
Kosciuszko,  claiming  a  legacy  under  an   alleged  codicil  to  the 
will,  foreigners  claiming  the  assets  of  the  deceased  as  heirs  at 
law  were  held  necessary  parties.30     To  a  bill  between  partners 
for  an   accounting,   all   the   surviving  partners  and   the   repre- 
sentatives of  a  deceased  partner,  even  when  alleged  to  be  insol- 
vent,  are,    it   seems,    indispensable   parties,31   unless   it   can   be 
shown  that  each  of  those  omitted  has  received  his  full  share  of 
the  assets,  and  that  no  claim  is  made  against   him.32     All  the 
partners  must  be  joined  as  plaintiffs  and  defendants  in  a  suit 
to  recover  money  due  the  firm,33  or,  it  seems,  to  prevent  the  dis- 
position of  a  fund  held  by  the  firm.34     To  a  partition  suit  all 
of  the  tenants  in  common  are  indispensable  parties.35     A  person 
in  possession  under  a  claim  of  a  title  or  interest  in  property  is 
a  necessary  party  to  a  suit  affecting  it.36     The  mortgagor  is  a 

27Tacoma    Ry.    &    Power    Co.    v.  32  Towle      v.      Pierce.       12      Met. 

Pacific   Traction   Co.,    155   Fed.   259.  (Mass.)     329;     Kilbourn    v.    Sunder- 

28  Hoe  v.   Wilson,  0  Wall.  501,   19  land.   130  U.  S.  505,  32  1..  ed.    1005. 

I.,    ed.    762;     Harwood    v.    Railroad  S3jEdgell    v!    Felder,    84    Fed.    69. 

Co.,  17  Wall  78,  21   L.  ed.  558:  John-  Where  the  business  of  the  firm  was 

son    v.    Hunter.    127    Fed.    219.      For  conducted   by   two  houses,  and   those 

a  case  where,  upon  a  petition  of  in-  who    managed    one    house     had    as- 

tervention,  a  sale  was  set  aside  and  signed  their  interest  to  the  manag- 

;,    ,,,;,,,    lien    upon   the    property   en-  era  of  the  other:    it  was  held:    that 

forced,  although  the  vendor,  a  tins-  that    the    former,    who    tiled    a    dis- 

tee,  residing  beyond  the  jurisdiction,  elaiiner.  might  he  made  defendants: 

was    not    before    the    court:    see    An-  and     that     their    citizenship!,    which 

thony  v.  Campbell,  C.  C.  A..  112  Fed.  was  the  same  as  that  of  the  princi- 

212.  Pa'    defendant,    did    not    defeat    the 

29  Bucklev   v.   I'.  S.,   196   Fed.  429.  jurisdiction.      Poole    v.    West    Point 

SO  Armstrong    v.    Fear.   8    IVt.    52,  Putter  &  Cheese  Ass'n.  30  Fed.  51.3. 

s  L.  i-d.  863.  34  Raphael    v.    Trask,    194    1".    S. 

31  Bank   v.   Carrollton    11.   Co.,    11  272.  48  L.  ed.  97:!.    Cfi  supra.  §§  119, 

Wall.    C24.    20    1..    ed.    82:    Bartle    v.  420.   425. 

Coleman.  3  (ranch.  C.  Q.  283,;  Gray  35  Barney    v.    Baltimore.    6    Wall, 

v.     Larrimore.    2     Abb.    C.    C.    542;  280,    IS    L.   ed.   825. 

Brew  v.  Cochran,  141   Fed.  459.  36  W  illiams      v.      Bankhead,      19 


§     120]  INDISPENSABLE  PARTIES.  447 

necessary  party  to  a  suit  by  the  mortgagee  against  a  third  per- 
son to  remove  a  cloud  upon  the  title;37  or  to  prevent  an  injury 
to  the  property  when  the  decree  must  necessarily  adjudicate 
unsettled  rights  of  the  mortgagor.38  It  is  the  safer  practice  to 
join  the  mortgagor  as  a  party  defendant  to  a  bill  by  the  mort- 
gagee of  a  patent  seeking  an  injunction  against  its  infringement 
with  damages  or  an  account  of  profits.39  It  has  been  held: 
that  all  the  devisees,  who  are  joint  tenants  of  land,  are  indis- 
pensable parties  to  a  suit  to  foreclose  a  mortgage  upon  the 
same,  given  by  an  executor  under  a  power  in  the  will.40  It  was 
held  that  in  a  suit  to  compel  the  execution  and  foreclosure  of  a 
mortgage,  prior  incumbrancers  and  others  claiming  an  inter- 
est in  the  mortgaged  property  were  necessary  parties,  when  it 
did  not  appear  that  their  joinder  was  impossible  or  would  oust 
the  jurisdiction.41  To  a  bill  to  enforce  specific  performance  of 
a  contract,  providing  for  the  sale  of  land  the  title  to  which 
was  in  one  party,  and  its  distribution  between  both  parties  to 
the  contract ;  when  tiled,  after  the  death  of  each  by  the  per- 
sonal representatives  of  the  one  as  complainants  against  the 
heirs-at-law  of  the  other  as  defendants:  the  executors  of  the 
defendants'  ancestor  are  necessary  if  not  indispensable  parties 
defendant,  and  the  heirs-at-law  of  the  complainant's  decedent 
are  not.42  All  a  decedent's  heirs-at-law  are  indispensable  par- 
ties to  a  bill  by  one  of  them  to  set  aside  a  sale  of  his  property 
under  a  decree;  and  to  such  a  bill  the  party  to  the  former  suit 
at  whose  instance  the  sale  was  made  is  also  an  indispensable- 
party.43  All  a  woman's  heirs  have  been  held  necessary  parties  to 
a  bill  to  set  aside  a  marriage  settlement.44  To  a  bill  by  a  stock- 
Wall.  563,  22  L.  ed.  184;  Young  v.  41  Metropolitan  Bank  v.  St.  Louis 
dishing,  4  Biss.  456.  But  see  Ringo  Dispatch  Co.,  140  I".  S.  430.  45Q,  37 
v.  Binns.  10  Pet.  269.  281,  9  L.  ed.  L.  ed.  799,  804. 
420.  425:  Hicklin  v.  -Marco,  C.  C.  Fed.  337. 
A.,  56  Fed.  549.  42  Seymour  v.  Freer.  8   Wall.  202. 

37  Bettes  v.  Dana,  2  Summer.  383;       218.    19    L.    ed.    311.      See    Front    v. 
Hicklin  v.  Marco,  ('.  C,  A.,  56  Fed.       Bony.   15  Wall.  471,  21    L.  ed.  58. 
.-,49.  43  Hoe    v.    Wilson,    9    Wall.    501, 

88  Consol.   Water   Co.   v.   San    Die-       19  L.  ed.  762;   Itarwood  v.  Railroad 
go,  84  Fed.  369.  Co..  17  Wall.  78.  21  L.  ed.  558.     But 

39  Waterman  v.  .Mackenzie.  138  U.       see  Alger  v.  Anderson.  78  Fed.  729, 


■i^v 


S.  252.  261.  34  L.  ed.  923.  927;  quot-  44  McDonnell    v.    Eaton,    IS    Fed. 

ed   supra,   §    112.  710. 

40  Detweiler     v.     llolderbaum,     42 


448  PAKTIES.  [§   120 

holder  to  set  aside  the  foreclosure  of  a  railroad  mortgage,  the 
trustees  of  the  mortgage  foreclosed,  the  mortgagor,  the  pur- 
chaser, and  enough  of  such  of  the  stockholders  and  bondholders 
as  consented  to  the  foreclosure  to  represent  the  remainder,  are 
indispensable  parties.45  So,  it  has  been  said,  are  the  trustees 
of  a  mortgage  by  the  purchaser,  and  a  corporation  holding  all 
the  stock  of  the  purchaser.46  A  corporation  or  its  receiver,47 
must  be  a  party  to  a  suit  to  enforce  a  right  against  a  third  per- 
son, which  the  corporation  refuses  to  assert,48  or  to  prevent  the 
waste  of  corporate  assets.49  If  a  receiver  has  been  appointed  he 
is  an  indispensable  party  to  such  a  suit,  even  although  the  State 
court  which  appointed  him  refuses  to  authorize  the  suit  against 
him.50  AVhere  a  corporation  had  been  dissolved  and  its  receiver 
discharged;  it  was  held:  that  neither  of  them  was  an  indispen- 
sable party  to  a  suit  by  its  creditors  against  a  former  director 
and  treasurer  of  the  company,  to  enforce  his  promise  to  pay  all 
its  debts  in  case  he  should  be  allowed  to  buy  its  property  at  a 
judicial   sale.61 

The  trustees  and  treasurer  of  an  Iowa  township  are  neces- 
sary parties  to  a  suit  by  a  taxpayer  to  prevent  payment  to  the 
holder  of  bonds  claimed  to  be  invalid.52  It  has  been  said  that 
to  a  bill  by  the  receiver  of  a  water  company  to  establish  his  right 
to  fix  the  water  rates,  all  consumers  of  the  water  must  be  made 
parties.53     To  a  bill  for  an  injunction  against  interference  by 

45Rjbon     v.     Railroad     Cos.,     16  37    L.   ed.   83  5;    supra,   §    52:    infra, 

Wall.  446,  21  L.  ed.  367.  §  312. 

46\\'enoer    v.    Chicago    &    E.    R.  51  Lilienthal    v.    Betz,    185    N.    Y. 

Co.,  C.  C.  A.,  114  Fed.  34.  153,  7  Ann.  Cas.  41. 

47  Porter  v.  Sabin,  149  U.  S.  473,  52  Sully  v.  Drennan,  113  U.  S. 
37  L.  ed.  815.  287,  28  L.  ed.  1007.     Compare  Har- 

48  Davenport  v.  Dows,  18  Wall.  ter  v.  Kcrnoehan,  103  U.  S.  562,  26 
026,  21  L.  ed.  938;  New  Jersey  Cen-  L.  ed.  411.  In  a  suit  by  citizens 
tral  R.  Co.  v.  Mills.  113  U.  S,  249,  to  restrain  the  erection  of  a  school- 
256,  28  L  ed.  049.  951  ;  T?ell  v.  Don-  house  on  land  dedicated  for  a  pub- 
ohue,  17  fed.  710;  Swan  L.  &  C.  Co.  lie  park,  it  was  held  error  to  refuse 
v.  Frank.  148  U.  S.  603,  37  L.  ed.  to  allow  an  amendment  to  the  bill 
577 ;  Kelly  v.  Mississippi  River  Coal-  making  the  original  donors  of  the 
Lng  Co.,  175  Fed.  482j  Snead  v.  Sche-  land  parties  complainant.  Rowzee 
ble  C.C.A.,  175  Fed.  570:  Lawrence  v.  Pierce,  75  Miss.  846:  s.  c.  23  S. 
v.  Southern   Pac.  Co.,   180   Fed.  822.  l\.  307;  S.  c.  40  L.R.A.  402,  65  Am. 

49  Putnam    v.    Khh.   56    Fed.    416.  St.   Rep.  625. 

60  Porter  v.  Sal. in,   140   U.  S.  47::.  58  Ward    v.    Sun    Diego    L.    &    W . 


§   120] 


INDISPENSABLE  PARTIES 


44H 


riparian  owners  with  complainant's  right  to  divert  the  waters 
±or  irrigation,  all  persons  who  claim  any  right  to  use  the  waters 
are  indispensable  parties.54    It  seem,  that  the  principal  debtor 
or  his  assignee  m  bankruptcy  or  insolvency,  is  a  necessary  party 
o  a  suit  against  a  surety.55     [Jnless  the  hill  is  expressly  filed  on 
their  behalf,  all  creditors  of  a  corporation  are  indispensable 
parties  to  a  suit  by  one  of  them   to  collect  unpaid  stock  sub- 
scription.        To  a   suit   by   a   creditor   to  enforce   a   lien   upon 
property  through  a  trust-deed  made  for  the  benefit  of  a  surety 
both  the  trustee  and  his  beneficiary  are  indispensable  parties: 
although  the  property  is  in  the  possession  of  neither  of  then.  ■ 
but  if  hied  ib  a  double  aspect,  either  for  the  complainant's  in- 
dividual benefit,  or  on  behalf  of  the  other  creditors  of  the  prin- 
cipal debtor,  to.  set  aside  a  subsequent  sale,  relief  may  be  had 
without  having  the  surety  or  his  trustee  before  the  court.57     So 
a  debtor,  or  if  a  bankrupt  or  insolvent,  his  assignee,  is  a  neces- 
sary party  to  a  creditor's  suit  to  enforce  a  lien58  or  to  lew59 
upon  property  in  which  the  debtor  has  an  interest,  or  to  collect 60 
a  debt  due  the  debtor.     A  corporation  must  be  joined  as  a  de- 
fendant to  a  bill  for  a  receiver; 61  to  a  bill  filed  bv  a  creditor  to 
apply  to  the  payment  of  its  indebtedness  money  due  it  from  its 
stockholders,62  or  to  enforce  the  individual  liability  of  its  stock- 


Co.,  79  Fed.  656,  667;  s.  c.  in  C.  C. 
A..  94  Fed.  849.  But  see  Clyde  v. 
Richmond  &  D.  R.  Co..  57  Fed.  436. 
51  Washington  State  Sugar  ( !o.  v. 
Sheppard,  1S6  Fed.  233. 

55  Robertson  v.  Carson,  1!)  Wall. 
94,  22  L.  ed.  178.  See  also  Russell 
v.  Clark,  7  Cranch,  69,  3  J.,  ed.  271. 
Rut  see  Eq.  Rule  42. 

56  George    W.    Signor    Tie    Co.    v. 
Monett  &  S.  W.  Const.  Co..   198  Fed 
412. 

37  McRea  v.  Branch  Bank  of  Ala- 
bama, 19  How.  376,  15  L.  ed.  688. 

58  Russell  v.  Clark.  7  Cranch.  (59. 
"  L.  ed.  271  ;  Robertson  v.  Carson, 
19  Wall.  34,  22  L.  ed.  178.  But  see 
Heriot  v.  Davis,  2  W.  &  \f.  229.  It 
was  held  that  in  a  suit  against  a 
bank  for  money  deposited  by  com- 
plainant's agent,  and  applied  by  the 
Fed.   Prac.  Vol.  I. — 29. 


bank  to  debts  due  from  the  agent, 
the  latter  was  a  proper  and  neces- 
sary party;  but  on  a  decree  for  com- 
plainant, without  there  appearing 
any  right  or  liability  for  or  against 
the  agent,  it  is  proper  then  to  dis- 
miss him.  Union  Stock  yards  Nat. 
Bank  v.  Moore,  C.  C.  A..  79  Fed. 
705. 

59  Wilson    v.    City    Bank.    3    Sum- 
ner. 422. 

60  I".    S.    v.    Houland.    4    Wheat 
108,   4    L.   ed.  526. 


61  Elkhart    Xat. 
western  G.  L.  Co. 

62  Bingham     v. 
Blatchf.  C.  ('.  237 


Bank    v.    Noith- 
84   Fed.  76. 
Luddington,     12 

First   Xat.   Bank 


v  Smith.  6  Fed.  215:  Dorn.it/er  v. 
Illinois  &  St.  L.  Bridge  Co..  6  Fed. 
217;  Walsh  v.  Memphis,  C.  &  \. 
W.  R.  Co..  6   Fed.  7H7:   Continental 


450 


PARTIES. 


[§  120 


holders^68  to  a  1  > i  1 1  to  compel  a  transfer  upon  its  books  of  stuck 
which  stands  in  the  name  of  another  than  the  complainant.*4 
So  must  he  an  unincorporated  association  to  a  hill  to  foreclose 
a  mortgage  upon  a  certificate  of  memhership  which  cannot  be 
transferred  without  its  consent.65  To  a  hill  for  the  dissolu- 
tion of  a  corporation  and  an  accounting  filed  for  the  benefit  of 
;i  single  stockholder,  not  on  behalf  of  the  rest,  the  other  stock- 
holders or  their  representatives  must  he  made  defendants.66 
The  owner  of  stock  is  an  indispensable  party  to  a  suit  to  enjoin 
the  voting  upon  the  same,  although  the  owner  is  a  corporation, 
with  the  same  directors  as  those  of  the  company  the  stock  in 
which  he  owns.67  To  a  hill  by  a  legatee  against  the  husband  of 
a  residuary  legatee  or  devisee  to  obtain  payment  of  the  complain- 
ant's legacy  from  assets  in  the  defendant's  possession,  the  re- 
siduary legatee  herself,  or,  if  she  be  dead,  her  personal  repre- 
sentative, is  a  necessary  party,68  at  least  when  it  does  not  appear 
that  she  or  her  personal  representative  is  without  the  jurisdic- 
tion of  the  court.  To  a  hill  by  alleged  heirs,  to  set  aside  the 
probate  of  a  will,  persons  who  appeared  in  the  Probate  Court, 


Adjustment    Co.    v.    Cook,    152    Fed. 
652. 

63  Elkhart  Xat.  Bank  v.  North- 
western E.  L.  Co.,  84  Fed.  7G. 

64  Kendig  v.  Dean.  97  U.  S.  423. 
24  L.  ed.  1061  ;  St.  Louis  &  S.  F.  Ry. 
Co.  v.  Wilson.  1 14  I'.  8.  GO.  211  L.  ed. 
0(5;  Rogers  v.  Nortwick,  4.1  Fed. 
513;  Patterson  v.  Farmington  St. 
Ry.  Co..  1 1 1  Fed.  262.  See  Wilson 
v.  Oswego  Township.  151  l.  S.  56, 
38  L.  ed.  70;  and  cases  cited:  supra, 
§  40;  infra,  §  541.  But  it  lias  been 
said  that  in  a  suit  by  the  holder  of 
a  certificate  of  stock,  duly  endorsed, 
Id  compel  a  transfer  of  the  same  by 
the  corporation,  the  owner  of  the 
legal  title  is  not  an  indispensable 
party,  although  he  has  disputed  the 
validity  of  the  transfer.  O'Neil  v. 
Wolcott  Mining  Co..  C.  C.  A..  174 
Fed.  -V27.  536;  see  Gould  V.  Head,  41 
Fed.  240.  248:  Williamson  v.  Krohn. 
06    Fed.    6.")."). 

65  Metropolitan    Xat.    Bank   v.  St.. 


Louis   Dispaeth  Co.,   149   U.  S.  43(1, 
37  L.  ed.  799. 

66  Watson  v.  U.  S.  Sugar  Refin- 
ery Co..  68  Fed.  70!).  Where  a  cor- 
poration had  been  required  to  de- 
posit moneys  with  the  treasurer 
of  the  Commonwealth  to  indem- 
nify those  who  should  sustain  dam- 
age by  the  construction  of  a  canal, 
and  the  fund  was  insufficient  to  pay 
all  claims,  it  was  held  that  a  bill 
to  have  certain  damages  paid  there- 
from should  make  parties  to  the 
.-nit  al!  interested  in  the  funds. 
Cowell  v.  (ape  Code  Ship  Canal  Co., 
41  N.  E.  B.  290.  104  Mass.  2.V>. 
Similar  is  Childs  v.  X.  B.  Carstein 
Co.,  70  Fed.  80.  But  sec  Bickford 
v.  McCbmb,  88   Fed!  428. 

67  Talbot  J.  Taylor  &  Co.  v. 
Southern  Pac.  By.  Co..  122  Fed.  147. 
See  Minnesota  v.  Northern  Securi- 
ties Co..  184  U.  S.  199.  40  L.  ed.  499. 

68  Levis   v.   Dart.   0   How.    1. 


§     1^1]  BTUMEBOUS  INTERESTS. 


151 


claiming  adversely  to  the  plaintiffs,  that  thev  are  the  true  own- 
ers at  law;  are  indispensable  parties.69  In  a  suit  to  compel  the 
execution  and  foreclosure  of  a  mortgage,  it  was  held:  that 
Pri<>r  incumbrancers  and  others,  claiming  an  interest  in  the 
mortgaged  property,  were  necessary  parties,  when  it  did  not 
appear  that  their  joinder  was  impossible  or  would  oust  the 
jurisdiction.  In  one  case,  where  a  bill  was  filed  to  stay  pro- 
ceedings in  ejectment,  the  court  required  the  nominal  defendant 
at  law  to  be  joined  as  a  co-plaintiff  with  the  real  person  inter- 
ested, although  it  did  not  appear  what  citizenship  he  had.71 

§   121.  When  numerous  interests  have  been  created  for 
the   purpose   of   preventing   the   plaintiff   from   obtaining 
equitable  relief.      When  numerous  interests  had  been  created 
for  the  purpose  of  preventing  a  person  from  obtaining  equitable 
relief,  the  English  courts  allowed  the  persons  to  whom   these 
interests  were  thus  conveyed  to  be  omitted  from  the  bill    if  the 
original  owner  of  the  property  thus  divided  were  made  a  de- 
fendant.       I  he  rule  and  the  reasons  for  it  are  thus  stated  bv 
( -alvert   m    bus   valuable   work   on    Parties:      "If  a    party   has 
divided  an  interest  amongst  a  number  of  persons  for  this  pur- 
pose, the  court,  in  order  that  the  contrivance  may  be  frustrated 
and  the  equitable  relief  may  be  obtained,  allows  the  suit  to  pro- 
ceed ,n  their  absence.     Such  a  division  is  in  realty  a  fraud    an 
attempt  to  defeat  justice  by  converting  the  general  rule  of  the 
court  into  an   obstruction   to  the  ordinary   proceedings       The 
court   defeats   the   fraud    by   refusing  to   enforce    the -general 
rule.  Lord  Hardwicke  said  upon  this  subject:     "Where  a 

mortgagee  who  has  a  plain  redeemable  interest  makes  several 
conveyances  upon  trust,  in  order  to  entangle  the  affair,  ami  to 
render  it  difficult  for  a  mortgagor  or  his  representatives  to  re- 
deem, there  it  is  not  necessary  that  the  plaintiff  should  trace 
out  all  the  persons  who  have  an  interest  in  such  trust,  to  make 

*>  Ca,,,,,   v,  O'Calligan.  C.  C.  A..  §   ,2].     U,(lvoi.t    (1|,    partJeg    ( 

IpI'i      n       ,-  6d-h  B°°k  KHl-  h-l'i;':   rates  v. 

.on         .';«  gs  ' 4  Peter8,   ";m,,,ly-  -  Atk-  2:;:-  **i  ^o. 

■  •    '•    /    I. ,.  e«l.   MS.  ,-,,;„„     Bank    ()f    L()uisi;m;i    v     g 

n  Hyde  v.  Kolger,  4  McLean,  255:  ford,    12   How.  327,    13   I.,  ed     1008; 

In   connection    with    this   topic,   the  Sew  Orleans  Canal  &  Bankin-Co   v 

section    on    Separable    Controversies  Station!.     12    How.    :;i;j.     |;;     L     ed 

the     Chapter     on     Removal     of  KM," 


Causes.    i»fy(l,    should    ho    consulted.  2(,lvcrt   on    Parties    (2,1  ed. 


61. 


452 


TARTIES. 


[§  122 


Them  parties."3  This  rule  might}  perhaps,  he  extended  to  a 
case,  where  an  attempt  hud  been  made  to  defeat  the  jurisdiction 
of  the  Federal  court  by  a  merely  colorable  conveyance  to  a  per- 
son of  the  same  citizenship  as  the  complainant.4 

§  122.  When  a  person  consents  to  the  relief  sought. 
A  person  who  consents  to,  the  relief  sought,  when  it  is  so  stated 
in  the  hill,  need  not  be  joined  as  a  defendant  with  the  other 
parties  interested,  unless  his  presence  is  indispensable  for  their 
protection.1  Sometimes  the  plaintiff  is  required  to  execute  a 
satisfactory  undertaking-  that  the  party  omitted  will  conform  to 
the  decree.2  Similarly,  a  person  who  disclaims  all  interest  in 
subject-matter  may  also  be  omitted,  unless  his  joinder  is  essen- 
tial to  the  protection  of  the  rights  of  the  other  defendants.3 
An  agreement,  between  two  persons  that  one  shall  represent  the 
othicr  as  plaintiff,  when  the  former  would  otherwise  have  no 
right  to  the  relief  sought,  will  not  be  sanctioned  by  the  court.4 

§  123.  When  the  plaintiff  waives  his  right  against  a  per- 
son. "Where  a  plaintiff.'"  says  Lord  Hardwicke,  "is  only 
concerned  in  interest,  there  he  may  waive  his  demand,  and  omit 
making  the  party  a  defendant  to  his  bill."  *  In  accordance  with 
this  practice,  the  equity  rules  provide  that  "in  suits  to  execute 
the  trusts  of  a  will,  it  shall  not  be  necessary  to  make  the  heir- 
at-law  a  party  but  the  plaintiff  shall  be  at  liberty  to  make  the 
heir-at-law  a  party  when  he  desires  to  have  the  will  established 
against  him."2     Such  a  waiver  cannot,  however,  be  made  unless 


3  Yates  v.  Hambly.  2  Atk.  237, 
238. 

4  See  Union  Bank  of  Louisiana  v. 
Stafford.  12  How.  327.  13  L.  ed.  — : 
New  Orleans  (anal  &  Ranking  Co. 
v  Stafford,  12  How.  343,  13  L.  ed. 
1015:  Leather  Manufacturers'  Hank 
v.  Cooper,  120  V.  S.  778.  781.  30  L. 
ed.    81(1.    818. 

5  122.  1  Mechanics'  Rank  v.  Se- 
ton.  1  Pet.  20!).  306,  7  L.  ed.  152, 
!55;  Calvert  on  Parties  (2d  ed.), 
Book   T.  ch.   V..   CO.   84. 

2  Cahort  on  Parties  (2d  ed), 
Book    1.    ch.    69;     Kirk    v.    Clarice, 


Prec.  in  Ch.  27"> :  Harvey  v.  Corrie, 
4  Buss.  35,  55;  Bawtree  v.  Watson, 
3  M.  &  K.  330.  340. 

3  Vattier  v.  llinde.  7  Pet.  252, 
258.  8  L.  ed.  675,  077. 

4  Rylands  v.  Latouche,  2  Bligh, 
570. 

§  123.  l  Williams  v.  Williams.  0 
Mod.  200.  See  also  Wilson  v.  Todd, 
i  M.  &  C.  42.  4fi;  Mechanics'  Bank 
v.  Seton,  1  Pet.  200.  306,  7  L.  ed. 
152.  155:  Calvert  on  Parties  (2d 
ed.),  S3,  and  cases  cited. 

2  Rule  50.  coiiic 1  from  the  31st 
Order  in  Cliancerv  of  August,  1841. 


§     127]  SPECIAL    CASES.  453 

it  can  be  without  prejudice  to  those  against  whom  the  bill  is 
filed.3 

§  124."  When  the  interest  of  an  absent  person  is  evident- 
ly very  small.  In  England  it  has  been  held,  in  accordance  with 
the  maxim  de  minimis  non  curat  lex,  that  when  the  interest  of 
an  absent  person  is  evidently  very  small  the  court  will  dispense 
with  his  presence  in  the  suit.1  This  view  seems  to  be  sanctioned 
by  two  decisions  of  the  Supreme  Court  of  the  United  States.2 

§  125.  When  the  absent  persons  are  unknown.  When  the 
absent  persons  are  unknown  and  it  is  so  stated  in  the  bill, 
their  omission  is  no  defect  in  the  suit  until  they  are  discovered, 
at  least  when  parties  with  similar  rights  are  parties  who  may  de- 
fend in  their  interest.1 

§  126.  When  the  right  of  administration  is  in  dispute. 
The  English  rule  was.  that  when  there  was  a  contest  in  the  Ec- 
clesiastical Court  over  the  right  of  administration  upon  a  deced- 
ent's estate,  the  omission  in  a  bill  affecting  that  estate  of  an  ad- 
ministrator might  be  excused  if  special  circumstances  were 
shown.1  If,  however,  no  proceeding  in  the  Ecclesiastical  Court 
were  pending,  one  must  be  instituted  before  the  bill  could  be 
filed.2 

§  127.  Relaxation  of  rule  as  to  parties  in  special  cases. 
The  rules  upon  the  subject  of  parties  are,  however,  very  loose, 
and  the  questions  arising  under  them  are  decided  largely  in  the 
discretion  of  the  court.1     ''The  necessity  for  the  relaxation  of 

3Anon..   2    Eq.    (as.    Abr.    166,    pi.  Atk.    51;    Penny    v.    Watts,    2    Pliil- 

li;    Story's   Eq.   PL.  §    139:    Poole  v.  lips,    140,    154;    Calvert    on    Parties 

West  Point  Butter  &  Cheese  Ass'n,  (2d  ed.),  Book  I.  cli.  V.  p.  70. 
30  Fed.  513.  2  Penny  v.  Watts.  2  Phillips,  149, 

§   124.     1  Calvert    on    Parties    (2d  154:    Calvert    on    Parties    (2d    ed.  I . 

ed.),  Book  I,  ch.  V.  p.  70:   Daws  v.  Book  1,  eh.  V.     See  Peed  v.  Bennett. 

Eenn,    1    J.    &    W.    513;    Attorney-  55  X.  J.  Eq.  587.  37  At!.  75:  supra, 

General  v.  Goddard,  1   T.  &   P.  348,  §   113. 

350.      Se    also    Faulkner   v.    Dankd,  §   127.     1  Cameron    v.    McRbherts, 

3  Hare,   199,  213.  3  Wheat.  591,  4  E.  ed.  4(i7  :    Klmen- 

2  Union  Bank  v.  Stafford.  12  How.  dorf  v.  Taylor.  10  Wheat.    152.  6  L. 

327,  33  E.  ed.  1008;  New  Orleans  C.  ed.  289:   Lewis  v.  Darling,   Hi   How. 

&    B.   Co.   v.   Stafford.    12   How.    343.  1,    14    E.   ed.    819:    Barney    v.    Halti- 

13  E.  ed.  1015.  more.    6    Wall.    2S0.    18   E.   ed.    825; 

§   125.     1  Alger    v.    Anderson,    7S  Payne   v.   Hook.   7    Wall.   425,   19   L. 

Ped.   729,   734.  ed.   200;    Barney   v.   Eathain.    103   U. 

§   12G.     lPlunket     v.     Penson,     2  S.  205,  26  E.  ed.  514 :  Greene  v.  'Sis- 


4r>4  I'AKTIE.S.  [§     128 

the  rule  is  more  especially  apparent  in  the  courts  of  the  United 
States,  whore,  oftentimes,  the  enforcement  of  the  rule  would 
oust  them  of  their  jurisdiction,  and  deprive  parties  entitled  to 
the  interposition  of  a  court  of  equity  of  any  remedy  whatever."2 
A  court  of  equity  adapts  its  decrees  to  the  necessities  of  each 
case;  and  should  a  suit  brought  by  a  single  complainant  con- 
cerning a  matter  in  which  others  as  well  as  himself  were  inter- 
ested terminate  in  a  decree  against  the  defendants,  it  is  easy 
to  do  substantial  justice  to  all  the  parties  in  interest,  and  pre- 
vent a  multiplicity  of  suits,  by  allowing  the  other  persons  sim- 
ilarly situated  with  the  plaintiff,  '"either  through  a  reference  to 
a  master,  or  by  some  other  proper  proceeding,  to  come  in  anl 
share  in  the  benefit  of  the  litigation."3  The  discretion  as  to 
the  joinder  or  omission  of  the  parties  is,  however,  one  which, 
when  properly  raised,  is  subject  to  review  upon  appeal.4  An 
act  of  Congress  relaxing  or  extending  the  rules  as  to  parties  in 
a  particular  case  is  constitutional.5 

§  128.  Restatement  of  the  rules  as  to  parties.  The  rules 
upon  the  subject  may  be  summarily  though  roughly  stated 
thus : — 

I.  All  persons,  not  too  numerous,  whose  joinder  will  not  oust 
the  jurisdiction  of  the  court,  and  who  have  any  direct  interest 
in  obtaining  or  resisting  the  relief  prayed  for  in  a  bill,  or  grant- 
ed in  a  decree  which  so  disposes  of  the  controversy  as  to  pre- 
vent any  future  litigation  concerning  the  same,  must  be  parties 
to  a  suit  in  equity.1 

II.  Xo  person  without  an  interest  in  the  contest  or  its  set- 
tlement can  be  joined  as  a  party,  except  perhaps  the  officer  or 
member  of  a  corporation,  who  according  to  some  authorities  may 

son.    2    Curtis,    171:    West    v.    Ran-  4  Caldwell  v.  Tatgg&rt,  4  Pet.  190, 

dull.  2  Mason,  181;    Parsons  v.  How-  7    L>   ed.   82&;    Robertson    v.   Carson, 

aid.  2   Woods.    1:    Winter  v.   Ludlow,  19   Wall.    !)4.   22   L.   ed.    178:    Hoe   v. 

:;    Pbila.     i  Pa.)     4<i4.  Wilson.  !>   Wall.  501,    lfl   L.  ed.  7t>2; 

2. Mr.    Justice    Davis    in    Payne    v.  Railroad    Co.    v.   Orr,    18    Wall.   471, 

Hook.    7    Wall.    42.->.    4:i2,    10    L.   ed.  21  L.  ed.  810. 

260,   262.  M'.    S.    v.    Union    Pacific    R.    Co., 

3. Mr.    Justice    Davis    in    Payne    v.  98  V.  S.  568,  2q  L.  ed.   143. 

Hook.    7    Wall.    425,    4M2.    19    L.    ed.  §    128.     1  §§  109,  110,  .116; 
260,  262-  See  s.  c.  as  Hook  v.  Payne. 
14    Wall.   2r>2.   20   L.  ed.   887:    infra, 
§  238. 


§   129] 


OBJECTION    FOB    WANT  OF    PARTIES. 


455 


be  made  a  defendant  to  a  bill  praying  relief  against  it.  in  order 
to  compel  from  him  a  discovery  of  facts  of  which  he  acquired 
knowledge  in  his  official  capacity.2 

III.  If  the  persons  having  a  common  interest  in  the  subject 
of  the  controversy  or  the  question  to  be  decided  therein  are  nu- 
merous, they  may  in  certain  cases  be  represented,  as  plaintiffs 
or  defendants,  by  others  who  hold  the  legal  title  in  trust  for 
them,  or  l>y  one  or  more  of  their  number  suing,  or  more  rarely 
being  sued,  in  their  behalf.3 

IV.  Persons  having  a  merely  formal  interest,  or  an  interest 
so  far  separable  from  that  of  the  principal  parties  that  a  decree 
disposing  of  the  controversy  as  between  the  latter  can  be  made 
and  enforced  without  affecting  their  rights,  may  always  be  omit- 
ted when,  by  reason  of  their  residence  or  citizenship,  not  with- 
in the  jurisdiction  of  the  court.4 

V.  All  persons  who  have  such  an  interest  in  the  controversy 
that  a  decree  cannot  be  enforced  without  directly  affecting  their 
rights,  must  be  joined  as  parties ;  except  possibly  when  they  are 
unknown  to  the  complainants,  or  when  their  interest  is  very 
small,  or  has  been  created  for  the  purpose  of  depriving  the  court 
of  jurisdiction.5 

VI.  There  is  no  need  of  joining  as  parties  any  against  whom 
the  plaintiffs  waive  their  rights,  or  who  are  willing  to  allow  the 
relief  prayed  for  in  the  bill,  unless  their  presence  is  necessary 
for  the  protection  of  those  who  have  been  made  defendants.6 

VII.  The  necessity  of  the  joinder  of  parties  is  always  in  the 
sound  discretion  of  the  court,  which  adapts  itself  to  the  facts  of 
each  particular  case.7 

§  129.  Objection  for  want  of  parties.  An  objection  for 
want  of  parties  may  be  taken  by  motion  to  dismiss1  or  by  an- 
swer.2 or  at  the  hearing,3  and  if  the  absent  persons  are  indispen- 
sable parties,  even  for  the  first  time  upon  appeal.4  although  not 


2  g  no. 

8 §§113-115. 

4§§    42.    1  16—118. 

5§§  Hi).   12(i.   123,  124. 

6 §§121,   122. 

7  s;   12(5. 

§    120.     l  Eq.  Rules  29,  44. 

2Eq.  Rules  20,  44 

3  Eq.    Rule   44. 


4  Hoe  v.  Wilson.  !i  Wall.  501,  19 
L.  ed.  762,  It  has  been  held  that,  at 
common  law.  a  defendant  may.  un- 
der a  plea  of  the  general  issue,  raise 
the  objection  that  a  necessary  party 
has  not  been  joined.  Cochran  v. 
Brannan,  inc.  Fed.  219.  Hut  sen 
fron  Molders'  Union  No.  12."i  of  .Mil- 
waukee. Wis.  \.  Allis-Chaltners  Co., 


4:56  parties.  [§   12'J 

if  a  decree  has  been  made  which  cannot  prejudice  their  inter- 
ests.5 The  objection  should  specify  by  name  or  description  the 
omitted  parties.6  It  should  state  the  names,  if  known,  of  all 
the  persons  for  whose  omission  the  defendant  claims  that  the 
bill  is  defective,7  and  the  reasons  why  their  presence  is  required 
in  the  suit.8  It  should  also  state  that  they  are  living,  and,  un- 
less they  are  in  every  aspect  of  the  bill  indispensable  parties 
thereto,  that  they  are  within  the  jurisdiction  of  the  court.9  "If  a 
defendant  shall,  at  the  hearing-  of  a  cause,  object  that  a  suit  is 
defective  for  want  of  parties,  not  having  by  motion  or  answer 
taken  the  objection  and  therein  specified  by  name  or  description 
the  parties  to  whom  the  objection  applies,  the  court  shall  be  at 
liberty  to  make  a  decree  saving  the  rights  of  the  absent  parties.'" 10 
•"Where  the  defendant  shall  by  his  answer  suggest  that  the  bill 
of  complaint  is  defective  for  want  of  parties,  the  plaintiff  may. 
within  fourteen  days  after  answer  filed,  set  down  the  cause  for 
argument  as  a  motion  upon  that  objection  only;  and  where  the 
plaintiff  shall  not  so  set  down  his  cause,  but  shall  proceed  there- 
with to  a  hearing,  notwithstanding  an  objection  for  want  of  par- 
tics  taken  by  the  answer,  he  shall  not  at  the  hearing  of  the  cause, 
if  the  defendant's  objection  shall  then  be  allowed,  be  entitled  as 
of  course  to  an  order  to  amend  his  bill  by  adding  parties;  but 
the  court  shall  be  at  liberty  to  dismiss  the  bill,  or  to  allow7  an 
amendment  on  such  terms  as  justice  may  require.''11  An  objec- 
tion to  the  whole  bill  for  want  of  parties  will  be  overruled  if. 
in  any  aspect  of  the  bill,  the  parties  therein  named  would  not 
lie  necessary.12  Where  a  defendant  in  a  suit  in  equity  for  the 
infringement  of  a  patent  made  objection  for  the  first  time  at 

C.   C.  A.,  20  L.R.AJX.S.)    315,   166  » Sheffield    v.    Newman.    77     Fed. 

Fed.  45.  789. 

5  See  Eq.  Rule  39.     Keller  v.  Ash-  9  Goodyear     v.    Toby,    6    Blatchf. 

ford,   133   l".  S..  610,  626,  33  L.  ed.  138. 

667,  (574.  W  Eq.    Rule    44;     copied    in    sul»- 

6Eq.   Rule    44.  stance   from    Eq.    Rule    53.    of    1842. 

'Attorney  General  v.  Jackson,  11  See   David    v.    M'Rae,    183   Fed.   812. 

Ves.   367,   369;    Cook   v.   Mancius,   3  814. 

Johns    Ch.     (N.    Y.  i     427:     Dwight  11  Eq.  Rule  43 !"' copied  in  part  from 

\.   Central    Vt.   R.   Co.,   9    Fed.   785;  Eq.   Rule  52,  of   1842. 

Campbell  v.  James,  2  Fed.  338,  348.  12  Homan      v.      Shiel,      2      Jones 

See   Helm   ?.  Zarecor,  222   I.  S.  32.  164. 
35,  56  L.  ed.  77. 


§     129]  OBJECTION  FOR   WANT  ()F    PARTIES.  457 

the  argument  upon  final  hearing,  that  there  was  a  defect  of  par- 
ties, because  a  person  holding  an  equitable  title  to  the  patent, 
was  not  a  party;  and  it  appeared  that  no  such  issue  was  made 
by  the  pleadings,  and  that  during  the  taking  of  the  testimony 
the  defendant's  counsel  admitted  that  the  title  to  the  patent  was 
in  the  complainant,  it  was  held  that  the  objection  was  made 
too  late  and  it  was  overruled.13  The  usual  practice  is  for  the 
court,  if  it  considers  the  objection  good,  to  allow  the  cause  to 
stand  over  until  the  plaintiff  shall  amend  his  bill  by  bringing 
in  the  additional  parties  needed.14  By  the  former  practice, 
after  a  plea  for  want  of  parties  had  been  sustained  and  the 
bill  amended  by  adding  thereto  the  parties  named  in  the  plea, 
the  second  plea  further  objecting  to  the  bill  for  the  omission 
of  other  parties  not  named  in  the  first  plea  could  not  be  filed.15 
If  the  omitted  parties  on  account  of  their  citizenship  cannot  be 
brought  in,  the  court  may  retain  the  bill,  and  perhaps  continue 
an  injunction  in  accordance  with  its  prayer  until  the  complain- 
ants have  had  a  reasonable  time  to  litigate  the  matters  in  con- 
troversy between  themselves  and  the  omitted  parties  in  a  court 
of  competent  jurisdiction;  and  if  it  should  then  appear  by  the 
judgment  of  such  a  court  that  the  complainants  have  in  equity 
a  superior  title  to  the  omitted  parties,  proceed  to  a  determina- 
tion of  the  rights  between  the  parties  to  the  bill.16  If,  how- 
ever, the  complainant  does  not  within  a  reasonable  time  amend 
his  bill,  or,  if  so  alknved  by  the  court,  proceed  against  the  omit- 
ted parties,  the  court  may  dismiss  his  bill ;  but  such  dismissal 
must  be  without  prejudice.17  A  lack  of  proper  par- 
ties is  not  a  jurisdictional  defect.18  It  will  not  support  an 
objection  to  the  jurisdiction,  that  may  be  certified  to  the  Su- 
preme Court :  19  and  if,  pending  the  decision  upon  an  objec- 
tion for  the  omission  of  a   party  whose  presence   would   oust 

13  California  El.   Works  v.   Finck,  193,  100,  6  L.  ed.  509.  601;   Hunt  v. 

47  Fed.  533.    See  also  Hills  v.  Put-  WiekliflV,  2   Pet.  201,  215.   7   L.  ed. 

nam.  152  Mass.  123.  397,  402. 

14 Hunt    v.    Wiekliffe.    2    Pet.    2d,  18  Harrison  v.  Rowan.  4  Wash.  ('. 

215,  7  L.  ed.  397.  402.  C.   202.   268;    Beltti   v.   Zarecor,   222 

15  Rawlins  v.  Dalton,  3  Y.  &  Coll.  I".  S.  32.  35,  56  L.  ed.  77.  70:  Hincli- 
447.  man  v.    I'au'ison   11.  1!.  Co.,    17   N.  J. 

16  Mallow    v.    Hinde.     12    Wheat,  Eq.  76;  86  Am.  Dec.  252. 

103.  198,  100,  0  L.  ed.  500.  600,  001.  19  Belm  v.  Zarecor,  222  V.  S.  32, 

17-Mallow     v.     Hinde,     12     Wheat.       35,  5G  L.  ed.  77,  79. 


1:58 


TARTIES. 


[§  130 


the  District  Court  of  jurisdiction,  he  dies,  or  his  interest 
ceases,  and  the  defect  is  therein-  cured,  the  hill  will  he  re- 
tained.20 It  was  held,  where  a  defendant  had  removed  a 
ease,  that  he  could  not  object  to  the  absence  of  a  party  whose 
joinder  would  deprive  the  Federal  court  of  jurisdiction.21 

§  130.  Objections  for  joinder  of  improper  parties. 
An  objection  that  improper  parties  have  been  joined  may  be 
raised  by  motion  to  dismiss  or  by  answer.1  If  persons  are  im- 
properly joined  as  plaintiffs,  all  the  defendants  may  take  the 
objection.2  If  a  person  is  joined  as  a  plaintiff  without  his  eon- 
sent,  he  may  on  motion,  or  petition,  upon  notice  to  all  parties, 
have  his  name  stricken  out,  with  costs  to  be  paid  by  the  plain- 
tiff who  has  improperly  brought  him  into  the  suit.3  Such  relief 
has  been  granted  upon  petition  after  a  decree  for  costs  against 
the  petitioners  and  the  other  persons  named  as  complainants.4 
Where  several  complainants  with  a  similarity  but  not  a  com- 
munity of  interest  had  joined  in  a  bill,  and  the  presence  of  some 
of  them  deprived  the  Federal  Court  of  jurisdiction,  the  one 
which  had  the  right  to  sue  the  defendants  there  was  allowed  to 
amend  the  bill  so  as  to  make  the  other  complainants  additional 
defendants.5  Where  one  of  several  complainants  whose  inter- 
est is  opposed  to  the  others,  attempts  to  delay,  harass,  or  impede 
the  orderly  progress  of  the  cause,  the  court  may  order  that  he 
be  made  a  defendant.6  If  a  person  having  no  interest  in  the 
controversy  be  improperly  joined  as  defendant,  he  alone  can 
raise  the  objection ; 7  except,  perhaps,  when  the  bill  is  multi- 


20  Harrison  v.  Rowan.  4  Wash. 
C.  C.  202.  208:  Hinchman  v.  Pat- 
erson  H.  R.  Co..  17  X.  J.  Eq.  76,  86 
Am.  Dec.  252. 

21  Fisher  v.  Shropshire.  147  I".  S. 
133,    14.3.   37    L.   ed.    109.    115. 

§    130.      1  Eq.    Rule   20. 

2  Cuff  v.  Platell.  4  Rus&  242: 
King  of  Spain  v.  Machado,  4  Russ. 
225;   Story's  Eq.  PI..  §  544. 

3  Calvert  on  Parties  (2d  ed.), 
430;  Keppell  v.  Bailey.  2  M.  &  K. 
517;  Titterton  v.  Oshorne.  1  Dick- 
ens, 350:  Wilson  v.  Wilson.  1  J.  & 
W.  450.  It  was  held  that  a  motion 
to  dismiss  the  bill  upon  that  ground 


should  he  denied.  Southern  Life 
Ins.  Co.  v.  Lanier,  5  Fla.  110,  58 
Am.   Dec.    44S. 

*  McGeorge  v.  Bigstone  Gap  Imp. 
Co.,    86   Fed.    599. 

5  Insurance  Co.  of  X.  A.  v.  Svend- 
sen,  74  Fed.  346.  See  Aylwua  v. 
Bray.  2  Y.  &  .Ter.  518.  note. 

6  Lalance  &  G.  Mfg.  Co.  v.  Haber- 
nian  Mfg.  Co.  93  Fed.  197.  !99 
As  to  the  change  of  a  defendant  to 
a  plaintiff,  see  Guirin  v.  Lee;  6  Pa. 
Super.    Ct.    ii4H. 

7  Whitbeek  v.  Edgar,  2  Barb.  Ch. 
iX.  Y.)  H)6:  Seymour  v.  Freer,  8 
Wall.  202.  218;  Buerk  v.  Imhaeuser, 


§  130] 


OBJECTION  FOB   MISJOINDER. 


459 


farious,8  or  he  was  joined  through  collusion  in  order  to  make  out 
a  ease  of  difference  of  citizenship;9  and  no  notice  of  his  objec- 
tion need  be  given  to  the  other  defendants,  except  in  special 
eases,  where- it  is  clearly  for  the  latter's  interest  to  detain  him  in 
the  suit.10  If  a  misjoinder  is  apparent  on  the  face  of  the  bill,  it 
is  more  prudent  to  raise  the  objection  specifically  by  motion  or 
answer,  stating  the  names  of  the  parties  improperly  joined.11 
If  the  objection  is  not  made  until  the  hearing,  the  court  may 
disregard  it.12  It  cannot  be  raised  for  the  first  time  upon  ap- 
peal. When  an  objection  that  defendants  have  been  improper- 
ly joined,  as  having  no  interest  in  the  controversy,  has  been  sus- 
tained, the  plaintiff  will  always  be  allowed  to  amend  by  striking 
out  their  names.14  In  such  a  case,  the  dismissal  does  not  affect 
the  suit  as  against  the  remaining  defendants.15  Where  a  de- 
fendant is  not  an  indispensable  party,  a  dismissal  as  to  him 
upon  any  ground  does  not  necessitate  a  dismissal  as  to  other 
defendants  properly  before  the  court.16  If  a  bill  is  dismissed 
for  a  misjoinder  of  complainants  and  one  of  them  appears  to 
have  a  good  cause  for  equitable  relief,  the  dismissal  must  be 
without  prejudice.17  The  subject  of  misjoinder  is  discussed  in 
the  next  chapter  under  the  head  of  ''Multifariousness.'" 18 


8    Fed.    457:     Mitzhener    v.    Robins 
(Miss.),  ]9  S.  R.   103. 

8  Cherry  v.  Monro,  2  Bail).  Ch. 
618;  infra,  §  141.  But  see  Missouri 
Broom  Mfg.  Co.  et  al.  v.  CJuymon, 
115  Fed.  112. 

9  Helm  v.  Zarecor,  222  U.  S.  32. 
35,  56  L.  ed.  77,  79. 

10  Anon.,  9  Ves.  512:  Hodson  v. 
Ball.  11  Simons.  459;  Calvert  on 
Parties    (2d  ed.).   430. 

11  Helm  v.  Zarecor,  222  U  S.  32, 
35.  50  L.  ed.  77,  79. 

12  Story  v.  Livingston.  13  Pet. 
359.  ID  L.  ed.  200:  Fades  v.  Harris. 
1  V.  &  C.  X.  R.  235:  Raffety  v. 
King,  1  Keen.  601;  Mosley  v.  Tay- 
lor, cited  in  1  Keen.  001  ;  s.  c,  2  Y. 


&    J.    520:    Calvert    on    I'arties    (2d 
ed.),  156:   Story's  Eq.  PI..  §  544. 

13  Livingston  v.  Woodworth,  15 
How.  540.  14  L.  ed.  809:  Hayes  v. 
Pratt.  147  U.  S.  557.  570.  37  L.  e.l. 
279.  284. 

14  Tryon  v.  Westminster  Improve- 
ment ConCrs,  6  Jurist  (X.  S.),  1324. 

15  Ladew  v.  Tennessee  Copper  Co.. 
179  Fed.  245. 

16  Ladew  v.  Tennessee  Copper  Co., 
179  Fed.  245:  Irving  v.  joint  Dist. 
Council.  United  Brotherhood  of  Car- 
penters. &c,  180  Fed.  S90. 

"House  v.  Mullen.  22  Wall.  42, 
22    L.   ed.   838. 

IS /nfra,  §§   139-143. 


CHAPTER  V. 

BILLS   IN   EQUITY. 

§  131.  Informations.  The  first  proceeding  in  a  suit  in 
equity  is  the  preparation  and  filing  of  the  first  pleading.  The 
suit  is  begun  when  the  bill  is  filed.1  This  was  either  an  infor- 
mation, a  bill,  or  an  information  and  bill.  Formerly  in  Eng- 
land the  attorney-general  or  solicitor-general  could  file  an  infor- 
mation on  behalf  of  the  crown,  or  of  those  who  either  as  idiots 
and  lunatics  partook  of  its  prerogative,  or  whose  rights,  as  those 
in  charities,  were  under  its  particular  protection.  The  law 
officers  of  the  royal  consort  had  the  same  right.  If  the  suit 
did  not  immediately  concern  the  rights  of  the  crown,  a  relator, 
who  sustained  and  directed  the  litigation,  who  it  seems  might 
prevent  the  discontinuance  of  the  suit  by  the  Attorney-General 
without  his  consent,  and  who  was  responsible  for  the  costs,  was 
usually  joined  with  the  officer  in  whose  name  it  was  filed.  The 
main  distinction  between  an  information  and  a  bill  was  that, 
whereas  the  latter  was  in  the  form  of  a  petition  to  the  court,  in 
the  former  the  officer  that  filed  it  stated  the  case  by  way  not 
of  petition  or  complaint,  but  of  information  to  the  court  of 
the  rights  which  the  crown  claimed  on  behalf  of  itself  or  others, 
and  of  the  invasion  or  detention  of  thos  i  rights  for  which  the 
suit  is  instituted.  If  the  relator  had  a  personal  interest  in  the 
relief  sought,  his  personal  complaint  was  joined  to  and  in- 
corporated with  the  information  given  to  the  court  by  the 
officer  of  the  crown;  and  the  pleading  was  termed  an  infor- 
mation and  bill.*  The  proceedings  upon  an  information  could 
only  abate  by  the   death   or  determination   of  interest  of   the 

§  131.  »  Farmers'  L.  &  Tr.  Co.  v.  PL.  §  8;  People  v.  North  San  Fran- 
Lake  Street  EL  R.  R.  Co..  177  U.  ciseo  Ass'n,  38  Cal.  564;  Attorney- 
S.  51.  44  L.  e<L  (i(i7 :  Humane  Bit  General  v.  Delaware  &  IL  R.  Co.. 
Co.  v.  Barnet,  117  Fed.  316.  See  27  X.  J.  Eq.  1:  s.  c.  27  N.  .7.  En. 
supra.  §  52.  631;     Newark     Aqueduct    Board     v. 

SMitford's  PL.  ch.   1:   Story's  Eq.  Larson,  45  X.  .7.  Eq.  394. 

400 


131] 


INFORMATIONS. 


461 


defendant.  If,  however,  the  information  were  filed  at  the  in- 
stance of  one  or  more  relators  and  all  died,  the  court  would 
not  allow  the  cause  to  proceed  till  an  order  had  been  obtained 
giving  leave  to  insert  the  name  of  a  new  relator,  and  one  had 
been  inserted  accordingly.  Otherwise,  proceedings  upon  in- 
formations were  substantially  the  same  as  upon  bills,  except 
that  great  laxity  of  practice  was  permitted  when  informations 
were  filed  on  behalf  of  charities.3  In  the  courts  of  the  United 
Stales,  it  has  been  held  to  be  the  proper  practice  for  the 
Government  to  sue  in  equity  in  its  own  name,  by  a  bill  similar 
to  one  filed  by  a  private  citizen;4  but  a  pleading  styled  an  in- 
formation, filed  on  behalf  of  the  United  States,  being  in  sub- 
stance a  bill,  was  sustained  as  such  ; 5  and  so  was  one  filed  on  be- 
half of  the  United  States  in  his  own  name  by  the  District 
Attorney  for  the  Northern  District  of  Xew  York.6  The  most 
usual  instances  of  these  bills  at  the  present  time  are  in  suits  to 
enforce  the  Interstate  Commerce  Aet7  and  the  Anti-Monopoly 
Law.8     It  has  been  held  that  bills  in  equity  will  be  sustained 


SMitford's  PL,  ch.  1;  Story's  Eq. 
PI..  §  S. 

4  Benton  v.  Woolsey,  12  Pet.  27, 
9  L.  ed.  616;  U.  S.  v.  Hughes,  11 
How.  552,  5G8,  13  L.  ed.  SOP,  816: 
s.  e.  as  Hughes  v.  U.  S.,  4  Wall. 
232,  18  L.  ed.  303;  Miss.  &  Mo.  E. 
Co.  v.  Ward.  2  Black.  48.5,  492,  17 
L.  ed.  311,  314;  U.  S.  v.  Union  Pae. 
R  Co.,  98  U.  S.  569,  25  L.  ed.  143; 
Moffat  v.  U.  S.,  112  U.  S.  24;  U.  S. 
v.  Minor,  114  U.  S.  233,  29  L.  ed. 
110;  U.  S.  v.  Am.  Bell  Tel.  Co.,  128 
U.  S.  316,  32  L.  ed.  450. 

5U.  S.  v.  Hughes,  11  How.  552. 
568.  13  L.  ed.  809,  816;  s.  c.  as 
Hughes  v.  U.  S.,  4  Wall.  232.  18  L. 
ed.  303.  See  Benton  v.  Woolsey,  12 
Pet.  27,  9  L.  ed.  9S7.  In  Hawaii, 
at  the  suit  of  the  Attorney  General, 
an  injunction  was  granted  forbid- 
ding a  railroad  company  from  de- 
Dreasing  the  intervals  at  which  cars 
were  run  upon  its  line,  from  one 
every  ten  minutes  to  one  every 
twentv   minutes.     Territory  of  Ha- 


waii v.  Honolulu  Rapid  Transit  & 
Land  Co..  Sup.  Ct.  of  Hawaii.  Jan- 
uary 20.  1908. 

6  Benton   v.   Woolsey,    12    Pet.   27. 
9  L.  ed.  987. 

7  Infra,  see   §    151. 

8  26  St.  at  L.  209 ;  TJ.  S.  v.  E.  C. 
Knight  Co..  156  U.  S.  1,  39  L.  ed. 
325;  U".  S.  v.  Trans-Missouri  Freight 
Ass:n,  166  U.  S.  290.  319.  41  L.  ed. 
1IHI7;  U.  S.  v.  Joint  Traffic  Ass'n. 
171  U.  S.  505,  43  L.  ed.  259:  Hop 
kins  v.  U.  S.,  171  V.  S.  578,  586, 
43  L.  ed.  290,  293;  Anderson  v.  I. 
S..  171  U.  S.  604.  43  L.  ed.  300; 
Addyston  Pipe  &  Steel  Co.  v.  V.  s.. 
175  U.  S.  211,  44  L.  ed.  136;  af- 
Grming  LT.  S.  v.  Addyston  Pipe  & 
Steel  Co.,  C.  C.  A.,  46  L.R.A.  122. 
.85  Fed.  271;  Montague  &  Co.  v. 
Lowry.  L93  I".  S.  38,  48  L.  ed.  608; 
Northern    Securities    Co.    v.    I'.    S.. 

193  L.  S.  197.  48  L.  ed.  679;  Min- 
nesota   v.    Northern    Securities    Co.. 

194  C.  S.  48,  48  L.  ed.  870:  Swift 
&    Co.   v.   U.   S„   196   U.   S.   375.   49 


462 


BILLS    IX    EtJI'lTV, 


[§    131 


when  filed  by  the  United  States  to  determine  a  controversy  as 
to:  the  boundaries  between  a  State  and  a  Territory;9  to  compel 
the  cancellation  of  illegal  contracts  between  a  railroad  com- 
pany and  a  telegraph  company,  when  legal  proceedings  were 
authorized  by  statute; 10  to  enforce  their  priority  of  payment  out 
of  a  trust  fund;  "  to  cancel  a  land  patent.12  or  a  patent  for  an 
invention  13  which  has  been  obtained  by  fraud.14  or  a  land  patent 
which  has  been  by  a  mistake  of  law  issued  in  violation  of  a  stat- 
ute,15 or  a  certificate  of  naturalization  obtained  by  fraud,16 
or  where  land  has  been  recently  patented  under  a  grant,  and 
there  is  basis  for  a  claim  that  it  has  passed  into  the  hands  of 
a  purchaser  in  good  faith,  a  bill  by  the  United  States  against 
the  original  grantee  in  the  alternative  for  the  recovery  of  the 


L.  ed.  518:  Loewe  v.  Lawler,  208 
V.  S.  274.  52  L.  ed.  488:  Shawnee 
Compress  Co.  v.  Anderson,  209  I". 
S.  42.3.  52  L.  ed.  865:  Continental 
Wall  Paper  Co.  v.  Voight  &  Sons 
Co..  212  I".  S.  227.  53  L.  ed.  48G; 
Standard  Oil  Co.  v.  I".  S..  221  17.  S. 
1  55  L.  ed.  010.  34  L.R'.A.  ( N.S. ) 
S34:  I".  S.  v.  Am.  Tobacco  Co.,  22] 
U.  S.  106,  55  L.  ed.  603:  U.  S.  v. 
Terminal  R.  R.  Ass'n.  of  St.  Louis. 
•224  U.  S.  3S3.  56  L.  ed.  810:  Stand- 
ard Sanitary  Mfg.  Co.  v.  U.  S..  220 
U.  S.  20.  57  L.  ed.  ■-;  U.  S.  v. 
Union  Pac.  R.  R.  Co..  226  U.  S.  61, 
57  L.  ed.  53:  s.  c,  226  U.  S.  470, 
57  L.  ed.  90;  U.  S.  v.  Union  Stock 
Yard  Co.  of  Chicago,  226  U.  S.  286, 
57  L.  ed.  — :  U.  S.  v.  Patten.  226 
1".  S.  52.").  57  L.  ed.  — ;  U.  S.  v. 
Jellico  Mountain  Coke  &  Coal  Co., 
4:'.  Fed.  898;  s.  c,  12  L.R.A.  7.".:!. 
40  Fed.  432:  Bigelow  v.  Calumet 
&  Hecla  .Min.  Co.,  155  Fed.  869. 
Sec  C.  S.  v.  Delaware  &  Hudson 
Co.,  213  U  S.  366,  53  L.  ed.  836; 
U.  S.  v.  Lehigh  Valley  R.  R.  Co., 
220  U.  S.  257,  55  L.  ed.  458:  U.  S. 
x.  Reading  Co.,  226  l".  S.  324.  57 
L.  ed.  90;   American  Biscuit  &   Mfg. 


Co.  v.  Klitz.  44   Fed.  721.   725.  726. 
9U.    S.    v.    State.    143    U.    S.    621, 
36  L.  ed.  285. 

10  U.  S.  v.  Union  Pac.  Ry.  Co., 
Kid  U.  S.   1.  40  L.  ed.  319. 

11  Hunter  v.  U.  S..  5  Pet.  173.  8 
L.  ed.  86. 

12  Moffat  v.  U.  S..  112  U.  S.  24, 
28  L.  ed.  623:  U.  S.  v.  Trinidad 
Coal  &  Coke  Co..  137  U.  S.  160.  34 
L.  ed.  640:  J.  J.  McCaskill  Co.  v. 
U.  S..  216  17.  S.  504.  54  L.  ed.  590. 

13  U.  S.  v.  Am.  Rell  Telephone 
Co.,  128  U.  S.  315.  32  L.  ed.  450; 
U.  S.  v.  Cunning.  18  Fed.  511  :  s.  c, 
22  Fed.  653:  Noble  v.  Union  River 
Logging  R.  Co..  147  U.  S.  165,  37 
L.  ed.  123. 

"Moffat  v.  U.  S..  112  U.  S.  24. 
28  L.  ed.  623;  U.  S.  v.  Cunning.  18 
Fed.  51  1  :   s.  c.  22   Fed.  653. 

M'Mullan  v.  U.  S..  118  U.  S.  271, 
30  L.  ed.  170;  McLaughlin  v.  U.  S., 
107  U.  S.  526,  27  L.  ed.  621;  West- 
ern Far.  R.  Co.  v.  U.  S..  108  I.  S. 
510.  27  L.  ed.  806.  See  U.  S.  v. 
Reed.  53   Fed.  405. 

16  U.  S.  v.  Norsch,  42  Fed.  417. 
But  see  U.  S.  v.  Andersen.  169  Fed. 
201. 


lai] 


L\F(ir!MATKi.\S. 


40: 


land  or  the  price  as  the  facts  may  appear.17  It  seems  that  a  hill 
cannot  be  tiled  to  enforce  a  forfeiture  of  a  land  grant  for 
failure  t<»  perform  a  condition  subsequent,  unless  expressly  au- 
thorized by  Congress.18  When  a  statute  authorized  the  Secre- 
tary of  the  Interior  to  sue  in  the  name  of  the  United  States  for 
the  use  of  certain  Indian  tribes  and  "to  pay  from  the  funds  of 
the  tribe  interested  the  costs  and  necessary  expenses  incurred 
in  maintaining  and  prosecuting  such  suits;"  he  was  authorized 
to  employ  private  counsel  to  conduct  the  suits,  and  it  was  said 
that,  in  the  absence  of  such  a  provision  in  the  statute,  the  de- 
fendant could  not  object  that  the  suit  was  not  brought  by  a 
law  officer  of  the  Government.19  In  the  suit  brought  by  the 
State  of  Florida  against  the  State  of  Georgia  to  settle  the 
boundary  between  them,  the  Attorney-General  of  the  United 
States  was  permitted  to  file  an  information  praying  "that  he 
be  permitted  to  appear  in  said  case,  and  be  heard  in  behalf  of 
the  United  States,  in  such  time  and  form  as  the  court  shall 
order;"  and  although  permission  for  him  to  take  testimony  in 
the  name  of  Florida  with  its  consent  was  refused,  it  was 
"ordered  that  the  Attorney-General  have  leave  to  adduce  evi- 
dence, whether  written  or  parol,  and  to  examine  witnesses  and 
file  their  repositions  in  order  to  establish  the  boundary  claimed 
by  the  United  States."20  Informations  have,  however,  been 
filed  in  equity  in  the  courts  of  some  of  the  individual  states. 
These  have  been   usually  brought  to  abate   public   nuisances.21 


n  Oregon  &  C.  R.  Co.  v.  U.  S., 
C.  C.  A.    144  Fed.  832. 

18  I'.  S.  v.  Northern  Pac.  Ry.  Co., 
177  U.  S.  4:5.-i,  439,  441,  44  L.  ed. 
836. 

19  C.  S.  v.  Rea-Read  Mill  &  Ele- 
vator Co..  171  Fed.  501.  Where  a 
proceeding  to  restrain  certain  car- 
riers and  shippers  from  giving  and 
receiving  rebates  on  interstate  ship- 
ments was  instituted  at  the  direc- 
tion of  the  Attorney  General,  who 
retained  special  counsel  nominated 
by  t lie  informing  witness,  and  de- 
fendants made  no  application  for 
a  stay  of  proceedings  in  order  to 
object    to    tlie    appearance    of    such 


special  counsel;  it  was  held  that 
they  were  not  entitled  to  a  dis- 
missal on  the  ground  that  prose- 
cutor had  agreed  with  the  Attor- 
ney General  to  bear  a  deficiency  in 
the  expense  or  the  prosecution  after 
applying  the  balance  of  the  Attor- 
ney General's  appropriation  applica- 
ble to  that  purpose.  V.  S.  v.  .Mil- 
waukee Refrigerator  Transit  Co.  et 
al..    14._)    Fed.    1007. 

20  Florida  v.  Georgia,  17  How. 
47S.  480.  .-)2:i.   15   L.  ed.   181.   lit.",. 

21  Attorney-Genera]  v.  Jamaica  I'. 
Aq.  Co..  13.S  Mass.  361;  Attorney- 
General  v.  Hare.  50  Mich.  447:  At- 
torney-General v.  Delaware  &  B.  B. 


464  BILLS   IN   EQUITY.  [§    131 

and  to  enjoin  acts  by  corporations,  which  were  ultra  vires,  and 
which  tended  to  be  a  public  injury;22  but  one  was  allowed  to 
protect  a  charity,  which  had  no  person  directly  interested  quali- 
fied t<>  defend  its  rights.23  Ft  has  been  held:  that  a  State  Attor- 
ney-Geneva] cannot  maintain  a  suit  to  enjoin  insurance  com- 
panies  from  carrying  out  an  agreement  regulating  their  rates 
in  restraint  of  trade.24  A  State  chancellor  refused  to  entertain 
an  information  filed  in  the  name  of  the  State  Attorney-General 
on  the  relation  of  an  alleged  imbecile  to  set  aside  a  conveyance; 
but  he  allowed  the  paper  to  be  converted  by  amendment  into  a 
1  >  1 11  tiled  by  the  next  friend  of  the  alleged  imbecile.25  A  State 
Mies  in  a  court  of  the  United  States  by  a  bill  in  equity  in  its  own 
name.26  "When  the  United  States  comes  into  a  court  of  equity 
as  a  suitor  it  is  subject  to  the  defenses  peculiar  to  that  aourt.'"27 
It  is  subject  to  the  rules  of  court.28  including  those  regulating 
the  time  of  tiling  pleadings.29  Such  an  information  or  bill 
should  be  tiled  in  the  name  of  the  United  States,  not  in  the  name 
of  one  of  its  law  officers.30  If  a  bill  be  filed  to  impeach  a 
patent  or  other  grant  by  the  United  States  and  be  not  brought 
bv  the  Attornev-General,  or  some  other  officer  authorized  bv 
statute  so  to  do.  it  should  contain  an  allegation  that  the  Attorney- 
General  has  ''given  such  order  for  its  institution  as  will  make 
him  officially  responsible  for  it.  and  show  his  control  over  the 
cause."31  The  signature  of  the  Attorney-General  subscribed 
to  the  bill  is  sufficient  to  show  his  authority  for  filing  it.32 
Where  the  Attorney-General  is  disqualified,  the  bill  may  be 
signed  by  the  Solietor-General  and  filed  in  his  discretion.33 

R.  Co..  27  X.  J.  Eq.  1:   s.  c.  27  X.  v.  Williams,  113  Fed.  S23. 

.1.  Eq;  631.  27  l".    S.    v.    White,    17    Fed.    561, 

22  Attorney-General   v.  Central   R.  565, 
i;..  ."id  X.  J.  Fq.  52.  24  Atl.  064,  17  28  \\    S.    v.    Barber    Lumber    Co., 

L.R.A  07  -.    Attorney-General  v.  Am.  ]'69  Fed.   1S4. 
Tobacco  Co..  5.-.  X.  J.  Fq.  352,  356,  29Ibid. 

:;   Atl.  «I71.  !>77.  30  Benton  v.  Woolsey.  12  Pet.  27, 

28  Attorney-General  v.  Butler,  123  0  L.  ed.  !>S7. 
Mass.  .'.lie.  SIMiller,  J.,   in   U.   S.  v.   Tbrock- 

MMcCarter  v.  Fireman's  Ins.  Co..  raorton,  98  TJ.  S.  61,  71.  25  L.  ed.  93, 

70  N.  .1.   Eq.  291,   til    At!.   705.  07. 

25  Thompson      v.      Thompson.      6  32  rj    s.   v.    Mullan,   10   Fed.   7S5; 
Houston    i  Del.  i.  225.  s.  c.  IIS  V .  S.  271,  30  L.  ed.  170. 

26  Supra,    §    13.      For    a    crossbill  33  r.  S    v.  Am.   Bell  Tel.  Co.,   123 
tiled    in    the   name  of  a   State   r.r  rr-  U.  S.  315,  32  L.  ed.  450. 

hi  Hunt-  by  private  citizens,  see  Jack 


§    132]  CLASSIFICATION.  4G5 

§  132.  Definition  and  classification  of  bills.  The  usual 
course,  and  the  only  one  open  to  a  private  citizen,  is  the  filing 
of  a  bill.  The  world  "bill"  is  derived  from  the  Latin  libellus; 
and  such  a  pleading  is  sometimes  called  an  English  bill ;  because 
at  the  time  when  pleadings  at  common  law  were  in  Law  Latin 
or  Law  French,  it  was  as  now  written  in  the  English  language.1 
A  bill  is  a  petition  addressed  to  the  judges  of  a  court  of  equity, 
containing  a  statement  of  the  facts  which  in  the  plaintiff's  opin- 
ion give  him  a  right  to  sue,  and  concluding  with  a  prayer  for 
the  relief  to  which  he  deems  himself  entitled. 

Qvis.  quid,  coram  quo,  quo  jure  petitur,  et  a     quo. 
Recte  compositus  quisque  libellus  habct.2 

Bills  are  divided  by  the  books  into  three  classes ;  original  bills 
bills  not  original,  and  bills  in  the  nature  of  original  bills.  A 
fourth  class,  which  may  be  termed  original  bills  in  the  nature  of 
bills  not  original,  is  recognized  by  the  Federal  courts.  Original 
bills  are  those  which  relate  to  some  matter  not  before  litigated  in 
the  court  of  equity  by  the  same  parties  standing  in  the  same 
interests.  Bills  not  original  are  those,  which  relate  to  some  mat- 
ter already  litigated  in  the  court  of  equity  by  the  same  parties, 
or  their  representatives,  and  which  are  either  an  addition  to  or  a 
continuance  of  an  original  bill,  or  both.3  BilJs  in  the  nature  of 
original  bills  are  those  which  serve  to  bring  before  the  court 
the  proceedings  and  decree  in  a  former  suit,  for  the  purpose  of 
either  obtaining  the  benefit  of  the  same  or  procuring  the  reversal 
of  the  decision  made  therein.4  Original  bills  in  the  nature  of 
bills  not  original  are  those  having  all  the  characteristics  of  origi- 
nal bills,  except  that  the  Federal  courts  will  take  jurisdiction  of 
them  without  regard  to  the  citizenship  or  the  parties,  or  the 
other  limitations  of  the  original  Federal  jurisdiction.5  Origi- 
nal bills  are  of  two  kinds:  those  which  pray  relief,  and  those 

§   132.     1  Story's  Eq.  PI.,  §  7.  2  Wall.  009,  17  L.  ed.  886;  Krippen- 

2  Com.   Dig.,   Chancery,   E.  2.  dorf  v.  Hyde,   110  U.  S.  270,  28  L. 

3  Quoted  with  approval  in  Anglo-  ed.  345;  Pacific  R.  Co.  of  Mo.  v.  Mo. 
Florida  Phosphate  Co.  v.  McKibben,  Pac.  Ry.  Co.,  Ill  U.  S.  505,  28  L. 
C.  C.  A..  Co  Fed.  529,  530,  531.  ed.  498;   Continental  Tr.  Co.  v.  To- 

«Mitford's  PI.,  ch.  ],  §  2;  Story's  ledo,  St.  L.  &  K.  C.  R.  Co.,  82  Fed. 
Eq.  PL,  §  16.  642:  supra.  §  51. 

s  Minnesota  Co.   v.   St.   Paul   Co., 
Fed.  Prac.  Vol.  I.— 30. 


4GG 


BILLS   13"  EQUITY. 


[§132 


-which  do  not  pray  relief.  Original  bills  which  pray  relief  are 
said  to  belong  to  three  classes :  bills  which  pray  the  decree  of 
the  court  concerning  some  right  claimed  by  the  plaintiff  in 
opposition  to  some  right  claimed  by  the  defendant,  bills  of 
interpleader,  and  bills  of  certiorari.  Original  bills  not  praying- 
relief  are  of  two  kinds:  bills  of  perpetuate  the  testimony  of 
witnesses,  and  bills  of  discovery.  Bills  not  original  are  bills 
of  revivor,  supplemental  bills  and  bills  of  revivor  and  supple- 
ment. Bills  in  the  nature  of  original  bills  are  bills  in  the 
nature  of  supplemental  bills,  bills  in  the  nature  of  bills  of 
revivor,  cross-bills,  bills  of  review,  bills  impeaching  decrees 
upon  the  ground  of  fraud,  bills  to  suspend  the  operation  of 
decrees  on  special  circumstances  or  to  avoid  them  on  the  ground 
of  matter  subsequent,  and  bills  partaking  of  the  qualities  of 
some  one  or  more  of  these  bills.6  If  the  court  has  jurisdic- 
tion of  an  original  bill,  it  will  take  jurisdiction  of  bills  not 
original,  and  bills  in  the  nature  of  original  bills,  growing  out 
of  the  first  suit,  without  regard  to  the  citizenship  of  the  par- 
ties thereto.7  And  in  certain  other  cases  it  will  take  jurisdic- 
tion of  bills  otherwise  original  which  are  so  intimately  con- 
nected  with  matters  before  the  Federal  court  that  it  is  in  the 
interest  of  convenience  and  justice  to  have  them  disposed  of  be- 
for  the  same  tribunal.3  These  may  be  named  original  bills  in 
the  nature  of  bills-  not  original.  They  are  usually  called  ancil- 
lary bills.9  Such  is  a  bill  to  obtain  a  judicial  construction  of 
previous  decrees ; 10  a  bill  to  obtain  a  determination  of  the  rights 
of  a  claimant  to  a  fund  in  the  hands  of  a  Federal  marshal ;  n 
a  bill  to  stay  proceedings  at  law ; 12  and  a  bill  to  set  aside  a 
decree.13    The  peculiarities  in  the  form  and  the  procedure  upon 


SMitford's  PL,  ch.  1,  §  2;  Story's 
Eq.  PL,  §§  16-24. 

7  Clarke  v.  Mathewson,  12  Pet. 
164,  9  L.  ed.  1041 ;  Jones  v.  An- 
drews, 10  Wall.  327,  333,  19  L.  ed. 
935,  937;  Pacilic  R.  Co.  of  Mo.  v. 
Mo.  Pac.  Ry.  Co.,  Ill  U.  S.  505,  28 
L.  ed.  498.     See  §  53. 

8  Minnesota  Co.  v.  St.  Paul  Co., 
2  Wall.  609,  17  L.  ed.  886. 

9  Supra,  §  53. 

10  Minnesota  Co.  v.  St.  Paul  Co., 
2  Wall.  609,  17  L.  ed.  886. 


"Krippendorf  v.  Hyde,  110  U. 
S.  276;  Freeman  v.  Howe,  24  How. 
450,   16  L.  ed.  749. 

12  Logan  v.  Patrick,  5  Cranch, 
288,  3  L.  ed.  103;  Dunn  v.  Clarke, 
8  Pet.  1,  8  L.  ed.  845;  Jones  v.  An- 
drews, 10  Wall.  327,  333,  19  L.  ed. 
935,  937;  Dunlap  v.  Stetson,  4  Ma- 
son. 349. 

13  Pacific  R.  Co.  of  Mo.  v.  Mo. 
Pac.  Ry.  Co.,  Ill  U.  S.  505,  28  L. 
ed.  493. 


133] 


FRAME. 


4G7 


original  bills  not  praying  relief,  bills  not  original,  and  bills 
in  the  nature  of  original  bills,  will  be  discussed  in  the  latter 
part  of  this  work.  In  this  chapter,  the  form  of  original  bills 
praying  relief  and,  in  the  chapters  immediately  succeeding, 
the  proceedings  upon  them,  will  be  explained,  beginning  with 
the  ordinary  kind, — bills  which  seek  relief  concerning  some 
right  claimed  by  the  plaintiff  in  opposition  to  one  claimed  by 
the  defendant. 

§  133.  Frame  of  a  bill  in  equity.  Formerly,  bills  usually 
consisted  of  nine  parts:  the  direction  or  address,  the  intro- 
duction, the  premises  or  stating  part,  the  common-confeder- 
acy clause,  the  charging  part,  the  jurisdiction  clause,  the 
interrogating  part,  the  prayer  of  relief,  and  the  'prayer  of  pro- 
cess.1 Of  these,  however,  the  common  confederacy  clause,  alleg- 
ing that  the  defendant  or  defendants  are  combining  and  con- 
federating with  some  persons  to  the  plaintiff  unknown,  whose 
names  when  discovered  he  prays  leave  to  insert  as  defendants, 
which  owed  its  origin  to  an  idea  that  otherwise  the  bill  could 
not  be  amended  so  as  to  add  new  defendants,  and  its  retention 
to  the  practice  of  taxing  costs  according  to  the  length  of  the 
documents  filed ;  the  charging  part,  alleging  the  defense  which 
it  anticipated  would  be  made  by  the  defendant,  and  the  reply 
which  the  plaintiff  intended  to  make  therto;  and  the  juris- 
diction clause,  alleging  that  the  acts  of  the  defendant  which 
were  complained  of  were  contrary  to  equity,  and  that  the  plain- 
tiff was  without  any  remedy  at  law :  were  not  even  then  con- 
sidered necessary  by  the  best  authorities,2  and  by  the  equity 
rules  of  1842  they  were  expressly  declared  superfluous.3  The 
equity  rules  of  1912  have  obviated  the  necessity  of  the  address,4 


§  133.  iMitford's  PL,  ch.  1,  §  3; 
Story's  Eq.  PI.,  §§  26-48. 

2  M  it  ford's  PI.,  ch.  ],  §  3;  Lang- 
dell's  Eq.  PI..  §  55;  Story's  Eq. 
PL.  §§  20,  32,  33,  34;  Comstock  v. 
Herron,  45  Led.  600. 

3  Rule  21  of  1842. 

*Eq.  Pule  25.  By  the  Equity 
Rules  of  1842.  -20.  Every  bill  in  the 
introductory  part  thereof,  shall  con- 
tain the  names,  places  of  abode,  and 
citizenship  of  all  the  parties,  plain- 
tiff's and  defendants,  by  and  against 


whom  the  bill  is  brought.  The  form, 
in  substance,  shall  be  as  follows: 
'To  the  judges  of  the  circuit  court 
of  the  United  States  for  the  dis- 
trict of  :    A.   P.,   of  ,   and 


a  citizen  of  the  State  of 


brings 


this  his  bill  against  C.  D.,  of  , 

and  a   citizen  of  the  State  of  , 

and   E.   F.,   of       — ,   and   a   citizen 


of    the    State    of 


And    there- 


upon   your    orator    eomplains    and 
says  that,'  etc." 


468 


BILLS   IX  EQUITY. 


[§  133 


the  interrogating  part5  and  the  prayer  of  process.6 

"Hereafter  it  shall  be  sufficient  that  a  bill  in  equity  shall 
contain  in  addition  to  the  usual  caption : 

First,  the  full  name,  when  known,  of  each  plaintiff  and  de- 
fendant, and  the  citizenship  and  residence  of  each  party.  If 
any  party  be  under  any  disability  that  fact  shall  be  stated. 


5  The  old  form  was  as  follows: 
"To  the  end,  therefore,  that  the  said 
A.  B.  and  the  rest  of  the  confed- 
erates, when  discovered,  may,  upon 
their  several  and  respective  corpo- 
rate oaths,  full,  true,  direct,  and 
perfect  answer  -make  to  all  and 
singular  the  matters  hereinbefore 
stated  and  charged,  as  fully  and 
particularly  as  if  the  same  were 
hereinafter  repeated,  and  they 
thereunto  distinctly  interrogated; 
and  that  not  only  to  the  best  of 
their  respective  knowledge  and  re- 
membrance, but  also  as  to  the  best 
of  their  several  and  respective  in- 
formation, hearsay  and  belief;  and 
more  especially  that  they  may  an- 
swer and  set  forth  whether,  etc.;  or 
they  may  set  forth  and  discover 
whether  they  do  not  know,  have 
heard,  or  are  informed,  and  in  their 
conscience  believe  that,"  &c.  Sto- 
ry's Eq.  PL,  §  35,  note  2.  "41.  By 
the  equity  rules  of  1842  the  inter- 
rogatories contained  in  the  interro- 
gating part  of  the  bill  must  be  di- 
vided as  conveniently  as  may  be 
from  each  other,  and  numbered  con- 
secutively 1,  2,  3,  etc.;  and  the  in- 
terrogatories which  each  defendant 
is  required  to  answer  shall  be  speci- 
fied in  a  note  at  the  foot  of  the  bill, 
in  the  form  to  the  effect  following, 
that  is  to  say:  'The  defendant  (A. 
B.)  is  required  to  answer  the  inter- 
rogatories numbered  respectively  1, 
2:  3,  etc.'"  "42.  The  note  at  the 
foot  of  the   bill,   specifying  the   in- 


terrogatories which  each  defendant 
is  required  to  answer,  shall  be  con- 
sidered and  treated  as  part  of  the 
bill;  and  the  addition  of  any  such 
note  to  the  bill,  or  any  alteration 
in  or  addition  to  such  note  after 
the  bill  is  filed  shall  be  considered 
and  treated  as  an  amendment  to 
the  bill."  "43.  Instead  of  the  words 
of  the  bill  now  in  use  preceding  the 
interrogatory  part  thereof,  and  be- 
ginning witli  the  words  'to  the  end, 
therefore,'  there  shall  hereafter  be 
used  words  in  the  form  or  to  the 
effect  following:  'To  the  end,  there- 
fore, that  the  said  defendants  may, 
if  they  can,  show  why  your  orator 
should  not  have  the  relief  hereby 
prayed,  and  may,  upon  their  several 
corporate  oaths,  and  according  to 
the  best  and  utmost  of  their  several 
and  respective  knowledge,  remem- 
brance, information,  and  belief,  full, 
true,  direct,  and  perfect  answer 
make  to  each  of  the  several  inter- 
rogatories hereinafter  numbered  and 
set  forth,  as  by  the  note  hereunder 
written  they  are  respectively  re- 
quired to  answer;  that  is  to  say, — 

"  'Whether,  etc. 

"  'Whether,  etc'  " 

6  Equity  Rules  of  1842."  "23.  The 
prayer  for  process  of  subpoena  in 
the  bill  shall  contain  the  names  of 
all  the  defendants  named  in  the  in- 
troductory part  of  the  bill,  and  if 
any  of  them  are  known  to  be  infants 
under  age,  or  otherwise  under 
guardianship,    shall    state    the    fact, 


§  135]  ixteoductiox.  469 

Second,  a  short  and  plain  statement  of  the  grounds  upon 
which  the  court's  jurisdiction  depends. 

Third,  a  short  and  simple  statement  of  the  ultimate  facts 
upon  which  the  plaintiff  asks  relief,  omitting  any  mere  state- 
ments of  evidence. 

Fourth,  if  there  are  persons  other  than  those  named  as  de- 
fendants who  appear  to  be  proper  parties,  the  bill  should  state 
why  they  are  not  made  parties— as  that  they  are  not  within 
the  jurisdiction  of  the  court,  or  cannot  be  made  parties  without 
ousting  the  jurisdiction. 

Fifth,  a  statement  of  and  prayer  for  any  special  relief  pend- 
ing the  suit  or  on  final  hearing,  which  may"  be  stated  and  sought 
m  alternative  forms.  If  special  relief  pending  the  suit  be 
desired  the  bill  should  be  verified  by  the  oath  of  the  plaintiff, 
or  someone  having  knowledge  of  the  facts  upon  which  such 
relief  is  asked."  7 

§   134.  Address  and  Caption.     In    England,     a    bill    in 
chancery  was  required  to  be  addressed  to  the  person  having  the 
custody  of  the  great  seal,  usually  either  the  sovereign,  or  the 
Lord  Chancellor,  except  when  the  Lord  Chancellor  himself  was 
the  complainant,  when  it  was  addressed  to  the  sovereign  "in 
his   high  court  of  chancery."1     In  the   United   States,   as   a 
great  seal  is  not,  as  in  England,  essential  to  the  validitv  of 
writs  in  equity,  before  the  Equity  Eules  of  1912,  a  bilfwas 
addressed  to  the  judge  or  judges  of  the  court  where  it  is  filed.2 
The  Equity  Kules  of  1912  in  prescribing  the  requirements  of 
a  bill  in  equity,  omit  therefrom  the  address,  but  require  the 
usual  caption.3    The  caption  should  state  the  name  of  the  court, 
including  the  district  and  division  and  the  names  of  each  of  the 
parties. 

§  135.  Introduction  and  Jurisdictional  Averments.    The 

introduction  formerly  contained  the  names,  descriptions,  and 
residences   of  the   complainants,    together   with   the   character 

so  that   the   court   may   take   order  without  repeating  the  same   in  the 

thereon  as  justice  may  require  upon  praver  for  process." 

the  return  of  the  process.     If  an  in-  7  Eq.  Rule  25. 

junction  or  a  writ  of  ne  exeat  regno,  §  134.     1  Mitford's  PI.,  ch.  1,  §  3- 

or  any  other  special  order  pending  Story's  Eq.  PL,  §  26. 

the  suit,  is  asked  for  in  the  prayer  2  Eq.  Rule  20  of  1842 

for    relief,    that    shall    be    sufficient,  8  Eq.  Rule  25 


470 


BILLS   IN  EQUITY. 


[§  135 


in  which  they  sued,  if  in  a  representative  capacity,  and  such 
other  allegations  as  were  necessary  to  found  the  jurisdiction 
of  the  court.1  Sometimes  the  names  and  descriptions  of  the 
defendants  were  also  here  inserted,  but  it  was  more  usual  to 
name  them  in  the  next  part  of  the  bill.2  The  Equity  Rules  of 
1842  regulated  the  subject  as  follows:  "Every  bill  in  the 
introductory  part  thereof  shall  contain  the  names,  places  of 
abode,  and  citizenship  of  all  the  parties,  plaintiffs  and  defend- 
ants, by  and  against  whom  the  bill  is  brought.  The  form,  in 
substance,  shall  be  as  follows:     'To  the  judges  of  the  Circuit 

Court  of  the  United  States  for  the  district  of ;  A.  B.,  of 

,  and  a  citizen  of  the  State  of  ,  brings  this  his  bill 

against  C.  D.,  of ,  and  a  citizen  of  the  State  of ,  and 


E.  E.,  of ,  and  a  citizen  of  the  State  of 


And  there- 


upon your  orator  complains  and  says  that,  etc."  The  Equity 
Rules  of  1912  provide:  that  a  bill  in  equity  shall  contain 
"First,  the  full  name,  when  known,  of  each  plaintiff  and 
defendant  and  the  citizenship  and  residence  of  each  party. 
If  any  party  be  under  any  disability  that  fact  shall  be  stated. 
Second,  a  short  and  plain  statement  of  the  grounds  upon 
which  the  court's  jurisdiction  depends.  *  *  *  Fourth, 
if  there  are  persons  other  than  those  named  as  defendants 
who  appear  to  be  proper  parties,  ttie  bill  should  state  why 
they  are  not  made  parties — as  that  they  are  not  within  the 
jurisdiction  of  the  court,  or  cannot  be  made  parties  without 
ousting  the  jurisdiction."  *  Where  there  are  two  districts  in  a 
State,  the  bill  must  show  in  which  district  a  party  resides.6 
An  allegation  of  residence  without  an  allegation  of  citizenship 
is  insufficient.6    So  is  an  allegation  that  plaintiff  is  "of,"7  or  is 


§  135.  IMitford's  PI.,  ch.  1,  §  3; 
Story's  Eq.  PI.,  §  2(3. 

2  Story's  Eq.  PI.,  §  26.  Contra, 
Leavenworth  v.  Pepper,  32  Fed.  718. 

3Eq.  Rule  20  of  ]S42. 

4  Eq.  Rule  25. 

5  Harvey  v.  Richmond  &  M.  Ry. 
Co.,  64  Fed.  19. 

6  Tug  River  C.  &  S.  Co.  v.  Brigel, 
67  Fed.  625;  Robertson  v.  Cease,  97 
U.  S.  646,  24  L.  ed.  1057:  Pacific 
Postal    Tel.    Co.    v.    Irvine.    49    Fed. 


113;    Stockwell   v.   Boston  &  M.  R 
Co.,    131    Fed.    152;    Atchison.   T.   & 
S.  F.  Ry.  Co.  v.  Frederiekson,  C.  C 
A.,    177    Fed.    206;    M'Eldoyney    v 
Card,  193  Fed.  475;  Gaugler  v.  Chi 
cago,  M.  &  P.  S.  Ry.  Co.,   197  Fed 
79;  International  Bank  &  Trust  Co 
v.  Scott,  C.  C.  A.,  159  Fed.  58,  hold- 
ing that  such  a  defect  is  not  cured 
by  an  admission   in  an  answer  that 
"plaintiff"  is  a  resident  citizen  of  a 
foreign  country,  the  reference  beinjr 


§  135] 


INTRODUCTION. 


471 


a  bona  fide  resident  of,8  a  certain  State ;  but  a  description  of  a 
party  as  a  citizen  of  a  certain  county  in  a  specified  State  was 
held  to  be  sufficient  to  describe  him  as  a  citizen  of  the  State 
and  a  resident  of  the  countv.9  Where  a  bill  recited  facts  to 
show  diversity  of  citizenship  without  making  distinct  the  traver- 
sible  averments  of  such  diversity,  it  was  held  to  be  sufficient.10 
So  it  was  held :  that,  in  view  of  the  Fourteenth  Amendment,  an 
allegation  that  a  plaintiff  was  a  citizen  of  the  United  States 
and  a  resident  of  a  specified  State  therein,  was  sufficient  to 
show  that  he  was  a  citizen  of  such  State.11  Where  the  plain- 
tiffs sue  as  executors  or  administrators,  it  is  insufficient  to 
allege  that  letters  of  administration  or  letters  testamentary 
had  been  taken  out  in  a  specified  State  12  or  "that  said  plain- 
tiffs as  such  executors,  are  citizens"  of  a  specified  State ; 13 
but  it  was  held  to  be  sufficient  to  aver  that  the  defendants,  "as 
they  are  the  qualified  executors  of  the  last  will  and  testament 
of  James  Brown,  deceased,  were,  each  and  all,  at  the  time  of 
the  commencement  of  this  suit,  and  still  are,  citizens  of  the 
State  of  ISTew  York;  and  that  the  defendant  John  S.  Schultze, 
also  a  qualified  executor  of  the  last  will  and  testament  of  James 
Brown,  deceased,  was  then,  and  still  is,  a  citizen  of  the  State 
of  New  Jersey."  14  If  one  of  the  parties  is  a  corporation,  the 
bill  must  state  by  or  under  the  laws  of  what  State  it  was 
created,  and  its  members  will  then  be  conclusively  presumed 
to  be  citizens  of  that  State.15  An  allegation  that  a  corporation 
is  a  citizen  of ,16  or  that  it  is  "duly  established  by  a  law. 


to  the  liquidating  committee  of  a 
bank,  which  had  instituted  a  suit, 
and  not  to  the  individuals  compos- 
ing the  same,  who  were  the  real 
plaintiffs. 

7  Yeandle  v.  Pennsylvania  R.  Co., 
C.  C.  A.,  169  Fed.  938. 

8  Koike  v.  Atchison,  T.  &  S.  F. 
Ry.  Co.,  157  Fed.  623. 

9  Gruetter  v.  Cumberland  Tele- 
phone &  Telegraph  Co.,  181  Fed. 
248.  But  see  Stuart  v.  Easton,  156 
U.  S.  46,  39  L.  ed.  341;  Hennessy 
v,  Richardson  Drug  Co.,  189  U.  S. 
25,  47  L.  ed.  697. 


10  Gorham  Mfg.  Co.  v.  Weintraub. 
176  Fed.  927. 

11  Clausen  v.  American  Ice  Co., 
144  Fed.  723. 

12  Yeandle  v.  Pennsylvania  R.  Co., 
C.  C.  A.  169  Fed.  938. 

13  Amory  v.  Amory,  95  U.  S.  186, 
24  L.  ed.  428. 

l*  Cooke  v.  Seligman,  7  Fed.  263. 

15  Lafayette  Ins.  Co.  v.  French. 
18  How.  404,  15  L.  ed.  451;  Muller 
v.  Dows,  94  U.  S.  444,  24  L.  ed.  207 ; 
Steamship  Co.  v.  Tugman,  106  U. 
S.  118,  27  L.  ed.  87. 

16  Thomas    v.    Board    of   Trustees 


472 


BILLS   IN   EQUITY. 


[§  135 


having  its  principal  place  of  business"  17  in  a  specified  State 
or  that  it  "claims  to  be*'  a  corporation  organized  under  the 
laws  of  a  specified  State,  as  a  company  of  a  specified  character,18 
or  that  it  is  a  "joint  stock  company,"  duly  organized  and  exist- 
ing under  the  laws  of  a  specified  State  and  a  citizen  thereof,19 
is  insufficient.  The  pleading  should  allege  that  it  was  created  by 
or  under  the  laws  of  such  State,20  or  at  least  that  it  was  or- 
ganized21 under  the  laws  thereof.  An  allegation  that  a  party 
was  a  corporation  under  the  laws  of  the  State  of  Virginia,  and 
a  citizen  of  Virginia,  and  a  resident  of  the  Western  District 
thereof,  was  held  to  be  good.22  It  has  been  held :  that  the  fact 
that  the  residence  of  a  corporation  is  at  a  certain  place  cannot 
be  inferred  because  the  name  of  that  place  is  part  of  the 
corporate  name.23  If  one  of  the  parties  is  an  alien,  the  bill 
should  aver  that  he  is  "a  citizen  and  subject  of  a  foreign  State," 
specifying  that  State's  name.24  An  allegation"  that  a  party 
is  "a  citizen  of  London,  England,"25  was  held  to  be  insuffi- 
cient to  show  that  he  was  an  alien;  but  the  averment  that 
the   complainants   are    "all   of   Cognac,    France,    and   citizens 


of  Ohio  State  University,  10.5  U.  S. 
207,  49  L.  ed.  160:  Lonergan  v.  Illi- 
nois Cent.  R.  Co.,  55  Fed.  550;  Fris- 
bie  v.  Chesapeake  &  0.  R.  Co.,  57 
Fed.  1 ;  De  Loy  v.  Traveler's  Ins. 
Co.,  59  Fed.  319;  American  S.  R. 
Co.  v.  Johnson,  60  Fed.  503;  Wink- 
ler v.  Chicago  &  E.  I.  R.  Co.,  J  08 
Fed.  305;  Dalton  v.  Milwaukee  Me- 
chanics' Ins.  Co.,  IIS  Fed.  876; 
Knight  v.  Lutcher  &  Moore  Lumber 
Co.,  130  Fed.  404.  Supra,  §  48. 
infra,  §  1. 

17  X.  Y.  &  X.  E.  R.  Co.  v.  Hyde, 
C.  C.  A.,  56  Fed.  188,  191. 

18  Lownsdale  v.  Gray's  Harbor 
Boom  Co.,  117  Fed.  983. 

19  Rountree  v.  Adams  Express  Co., 
C.  C.  A.,  165  Fed.  152.  For  what 
is  a  sufficient  allegation  of  the  citi- 
zenship of  members  of  a  partner- 
ship, see  Derk  P.  Yonkerman  Co.  v. 


C.  H.  Fuller's  Ad.  Agency,  135  Fed. 
613. 

20  Lonergan  v.  Illinois  Cent.  R. 
Co..  55  Fed.  550. 

21  Sun  Pr.  &  Pub.  Ass'n  v.  Ed- 
wards, 194  U.  S.  377,  4S  L.  ed. 
1027:  Ward  v.  Blake  Mfg.  f'oj  C. 
C.  A.,  56  Fed.  437. 

22  Mathieson  Alkali  Works  v. 
Mathieson.  C.  C.  A.,  150  Fed.  2-11. 

23  Harvey  v.  Richmond  &  M.  Ry. 
Co.,  64  Fed.  19. 

24  Wilson  v.  City  Bank,  3  Sumner, 
422. 

25  Stuart  v.  Easton,  156  U.  S.  46, 
39  L.  ed.  341.  But  in  Mahoning 
Valley  Ry.  Co.  v.  O'Hara,  C.  C.  A.. 
196  Fed.  945,  held  that  an  averment 
that  plaintiff  "is  now,  and  at  all 
times  hereinafter  mentioned  was.  a 
citizen  of  Ireland."  was  a  sufficient 
allegation  that  he  was  an  alien. 


§  135] 


INTRODUCTION. 


4T3 


of  the  Republic  of  France/'  was  held  to  be  adequate.28  An 
allegeation  that  the  State  of  which  a  party  is  a  citizen  is  un- 
known, is  insufficient  when  the  jurisdiction  is  claimed  for 
difference  of  citizenship.27  Where  a  bill  or  a  common-law 
pleading  is  filed  or  served  subsequent  to  the  commencement  of 
the  suit,  it  should  aver  the  citizenship  of  the  parties  at  the  time 
the  suit  was  commenced  as  well  as  in  the  present  tense.28  It 
has  been  held,  that  an  allegation  that  a  corporation  has  a  place 
of  business  within  the  district,  when  admitted  in  the  answer, 
relates  to  the  time  when  the  suit  was  brought.29  How  advantage 
could  be  taken  of  an  omission  in  the  introduction  of  the  resi- 
dence of  the  parties,  whether  by  demurrer  or  simply  by  a 
motion  for  security  for  costs,  was,  under  the  old  practice,  a 
doubtful  question.30  It  was  held :  that  a  bill  was  not  de- 
murrable for  the  failure  to  state  the  residence  of  a  party ; 31 
and  that  where  the  jurisdiction  does  not  depend  upon  a  differ- 
ence of  citizenship,  such  as  a  case  arising  out  of  the  bankruptcy 
laws,  an  omission  to  aver  the  citizenship  of  the  parties  does  not 
make  the  bill  demurrable,  but  that  the  objection  can  be  made 
by  motion  only ; 32  and  that  an  allegation  of  the  residence  of 
the  parties  is  not  required  in  a  pleading  at  common  law.33 
The  bill  was  certainly  demurrable  if  enough  did  not  appear 
upon  its  face  to  show  the  court's  jurisdiction.34  It  has  been 
suggested  that  a  defect  in  this  respect  in  the  introductory  part 
of  a  bill  is  not  cured  by  an  allegation  in  its  title  or  caption.35 
It  has  been  said  that  no  one  can  be  made  a  defendant  under  a 


26  Hennessy  v.  Richardson  Drug 
Co.,  189  U.  S.  25,  47  L.  ed.  697. 

27  Tug  River  C.  &  S.  Co.  v.  Bri- 
gel,  67  Fed.  625. 

28  Lackey  v.  Newton  Min.  Co.,  56 
Fed.  628. 

29  Streat  v.  Am.  Rubber  Co.,  115 
Fed.  634. 

30  Rowley  v.  Eccles.  1  Sim.  &  S. 
511 ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
409. 

31  Vermont  Mach.  Co.  v.  Gibson, 
50  Fed.  233;  (a  patent  case)  ;  Har- 
yey  v.  Richmond  &  M.  Ry.  Co.,  64 
Fed.  19;  (a  case  of  difference  of 
citizenship)  ;     Wright     v.     Skinner, 


136 -Fed.  694;    (a  bankruptcy  case). 

32  Wright  v.  Skinner,  136  Fed. 
694. 

33  Bait.  &  0.  R.  Co.  v.  Doty,  C. 
C.  A.,  133  Fed.  866. 

34  Bingham  v.  Cabot,  3  Dall.  382, 
1  L.  ed.  646;  Jackson  v.  Ashton,  8 
Pet.  148,  8  L.  ed.  898;  U.  S.  v. 
Pratt  C.  &  C.  Co.,  18  Fed.  708; 
Lackey  v.  Newton  Min.  Co.,  50  Fed. 
634. 

35  Jackson  v.  Ashton,  8  Pet.  148, 
8  L.  ed.  898.  See  Sharon  v.  Hill, 
23  Fed.  353;  Railway  Co.  v.  Ram- 
sey, 22  Wall.  322,  22  L.  ed.  823; 
Berger  v.  Sperry,  95  U.  S.  401,  24 


474 


BILLS  IN  EQUITY. 


[§  135 


fictitious  name ; 36  but  in  an  English  ease  where  the  parents  of 
an  infant,  who  was  a  necessary  defendant  to  a  bill,  refused  to 
have  her  baptized  in  order  to  interpose  difficulties  in  the  plain- 
tiff's way,  Sir  John  Leach  ordered  that  she  should  be  described 
as  the  youngest  female  child  of  A.  B.  (naming  her  father) 
and  C.  D.  (naming  her  mother).37  Where  the  complainant  is 
assignee  of  the  cause  of  action,  it  is  the  safer  practice  to  allege 
the  citizenship  of  his  assignor.38  An  admission  on  the  trial 
of  "the  liability  of  defendant  in  this  case  and  everv- 
thing  as  alleged  except  the  measure  of  damages,"  is  in- 
sufficient to  show  the  jurisdiction  of  the  court.39  Where  the 
jurisdiction  does  not  depend  upon  difference  of  citizenship, 
the  bill  should  state,  here  or  elsewhere,  the  facts  showing  that 
it  arises  under  the  Constitution  or  laws  of  the  United  States 
or  is  justified  by  some  other  Federal  statute.40  The  bill  should 
also  state,  here  or  elsewhere,  the  facts  which  show  that  the 
matter  in  dispute  exceeded  the  jurisdictional  amount,41  at  the 
time  when  suit  was  brought,42  unless  the  case  be  one  of  which 
the  District  Courts  of  the  United  States  takes  jurisdiction, 
irrespective  of  the  value  of  the  matter  in  dispute.43  The  alle- 
gation is  not  insufficient  because  it  uses  the  word  "amount," 
instead  of  "matter"  in  dispute.44  Upon  a  bill  for  an  injunc- 
tion, where  the  amount  involved  cannot  be  deduced  from  the 
facts  alleged,  a  simple  allegation  that  the  right  sought  to  be 


L.  ed.  390:  Robertson  v.  Cease.  97 
U.  S.  640,  24  li.  ed.  1057:  Gordon 
v.  Third  Nat.  Bank,  144  U.  S.  97, 
.36  L.  ed.  360. 

36  Kentucky  S.  Mining  Co.  v.  Day, 
2  Sawyer  C.  C.  468. 

37  Ely  v.  Broughton,  2  Sim.  &  S. 
188, 

38  Parker  v.  Ormsby.  141  U.  S.  81. 
35  L.  ed.  654;  U.  S.  Nat.  Bank  v. 
McNair,  56  Fed.  323;  Kolze  v. 
Hoadley,  200  U.  S.  76,  83,  50  L.  ed. 
377;  J.  J.  McCaskill  Co.  v.  Dickson, 
C.  C.  A.,  159  Fed.  704.  See  supra, 
§  63. 

39  Grand  Trunk  Western  By.  Co. 
v.  Reddick,  C.  C.  A.,  160  Fed.  898. 

40  Supra,  §S  34-39. 

« IL  S,  v.  Pratt  C.  &  C.  Co.,  18 


Fed.  708:  Murphy  v.  East  Portland, 

42  Fed.  308:   Olson  v.  Nor.  R.  Co., 

43  Fed.  112;  Lehigh  Z.  &  I.  Co.  v. 
N.  J.  Z.  &  I.  Co.,  43  Fed.  545,  546; 
Strasburger  v.  Beecher,  44  Fed. 
200:  Back  v.  Sierra  N.  C.  M.  Co., 
46  Fed.  673:  Harvey  v.  Raleigh  & 
G.  R.  Co..  89  Fed.  115:  Yellow  A. 
M.  &  M.  Co.  v.  Winchell.  95  Fed. 
213;  Evenson  v.  Spaulding.  150  Fed. 
517 :  Southern  Land  &  Timber  Co. 
v.  Johnson,  156  Fed.  246;  supra, 
§  6. 

42  Strasburger  v.  Beecher,  44  Fed. 
209. 

43  Supra,  §  5. 

44  Blackburn  v.  Portland  Gold- 
Min.  Co.,  175  U.  S.  571,  44  L.  ed. 
276. 


§    136]  NARRATIVE   PART.  475 

protected  is  of  the  value  of  more  than  three  thousand  dollars, 
exclusive  of  interest  and  costs,  will  usually  be  sufficient.45 
When  the  test  of  the  value  of  the  matter  in  dispute  was  stock 
in  a  corporation,  it  was  presumed  that  the  same  was  worth  par, 
in  the  absence  of  allegations  to  the  contrary.46  Although  this 
part  of  the  bill  should  contain  the  statement  that  the  com- 
plainant sues  on  behalf  of  others  as  well  as  himself,  if  he  in- 
tends so  to  do,  it  has  been  suggested  that  this  might  not  be 
necessary  when  his  case  is  founded  upon  a  statute  "which  it- 
self gives  that  force  and  direction  to  the  bill."  47 

§  136.  The  narrative  part  of  a  bill.  The  most  important 
portion  of  a  bill  in  equity  is  the  narrative  or  stating  part,  other- 
wise called  the  stating  part.  This  contains  the  plaintiff's  cause 
of  action.  The  Equity  Rules  of  1912  provide:  that  it  shall 
consist  of  "a  short  and  simple  statement  of  the  ultimate  facts 
upon  which  the  plaintiff  asks  relief,  omitting  any  mere  state- 
ment of  evidence."  *  "It  should  set  forth  the  plaintiff's  case 
in  a  clear  and  distinct  narrative,  with  the  facts  relied  upon  as 
the  basis  of  the  suit.  For  convenience,  each  paragraph  should 
be  numbered,  so  that  the  successive  allegations  may  be  readily 
referred  to.2  The  objection  of  old  common-law  pleading  was 
to  bring  the  matter  in  controversy  to  certain  distinct  issues. 
In  equity  pleading  no  such  attempt  was  made.  The  statement 
of  the  plaintiff's  case  in  the  bill  differs  little  in  language  or 
form  from  any  other  statement  of  facts  which  might  be  drawn 
up  for  the  information  of  third  parties,  say  an  application  to 
a  government  board.  The  defendant's  answer  usually  admits, 
or  denies,  or  qualifies  seriatim  each  statement  in  the  bill;  and 
occasionally,  before  proceeding  to  notice  the  statement  in  detail, 
the  defendant  gives  a  general  history  of  the  case  from  his  own 
point  of  view.  The  issues,  both  of  fact  and  of  law,  are  thus 
often  involved  in  large  masses  of  statement,   and  had  to  be 

45  Texas  &  P.  Ry.  Co.  v.  Kuteman,  46  Bernier  v.  Griscom-Spencer  Co., 

C.  C.  A.,  54  Fed.  547.     See  Hyde  v.  2  61  Fed.  438. 

Victoria    Land    Co.,    125    Fed.    970;  47  Irons    v.    Manufacturers'    Nat. 

Louisville  &  N.  R.  Co.  v.  Smith,  C.  Bank,  17  Fed.  308. 

C.  A.,  128  Fed.  1,  5;  Southern  Cash  §   13G.     1  Fq.  Rule  25. 

Register  Co.  v.  National  Cash  Regis-  2  An  omission  to  do  this  will  not 

ter  Co.,  143  Fed.  659;   Spaulding  v.  be  a  defect  in  pleading. 
Evenson,    149    Fed.    913.      See,   also, 
supra,  §  13. 


476 


BILLS   IN   EQUITY. 


[§  136 


selected,  so  to  speak,  by  the  judge  who  tried  the  cause,  with 
the  assistance  of  the  arguments  of  counsel.  It  would  be  diffi- 
cult to  imagine  a  less  technical  document  than  a  bill  in 
equity."  3  "A  bill  in  equity  is  not  to  be  read  and  construed 
as  an  indictment  would  have  been  read  and  construed  a  hundred 
years  ago,  but  it  is  to  be  taken  to  mean  what  it  fairly  conveys 
to  a  dispassionate  reader  by  a  fairly  exact  use  of  English 
speech."4  The  bill  must  contain  every  fact  essential  to  the 
plaintiff's  cause  of  action,  for  no  evidence  will  be  admitted  or 
considered  to  prove  any  fact  not  alleged  in  it.5  It  must  plead 
every  fact  essential  to  the  rights  of  the  plaintiff,  and  necessarily 
within  his  knowledge,  positively,  not  upon  information  and 
belief,6  and  with  certainty.7  Otherwise,  it  is  defective.  It  was 
said,  in  a  case  at  common  law,  to  be  an  elementary  rule  in 
pleading,  that  when  a  state  of  facts  is  relied  upon,  it  is  enough 
to  allege  it  simply  without  setting  out  the  subordinate  facts 
which  are  the  means  of  proving  it  or  the  evidence  sustaining 
the  allegation.8  Facts  not  necessarily  in  the  complainant's 
knowledge  he  may  allege  "as  your  orator  is  informed  and  be- 
lieves, and  therefore  avers."  9    Or  'Sour  orator  further  shows  on 


3  Lectures  before  the  Law  School 
of  Boston  University  on  Equity 
Pleading  by  Judge  Dwight  Foster, 
MS.     See  Hayne,  Eq.  70. 

4  Swift  &  Co.  v.  U.  S.,  106  U.  S. 
375,  305,  25  Sup.  Ct.  27G,  40  L.  ed. 
518;  per  Holmes,  J.:  "After  all  the 
specific  charges  there  is  a  general 
allegation  that  the  defendants  are 
conspiring  with  one  another,  the 
railroads  and  others,  to  monopolize 
the  supply  and  distribution  of  fresh 
meats  throughout  the  United  States, 
etc.,  as  has  been  stated  above,  and 
it  seems  to  us  that  this  general  al- 
legation of  intent  colors  and  applies 
to  all  the  specific  charges  of  the 
l.ill."  See  Prindle  v.  Brown,  C.  C. 
A..  155  Fed.  531.  533:  Ware-Kramer 
Tobacco  Co.  v.  Am.  Tobacco  Co.,  180 
Fed.  160. 

5  Cordon  v.  Cordon.  3  Swanst. 
400,  472:  Miller  v.  Cotten.  5  Ga. 
341,   346;    Wilson   v.   Stolley,  4   Mc- 


Lean, 275;  Crocket  v.  Lee,  7 
Wheat.  522,  5  L.  ed.  513;  Jackson 
v.  Ashton,  8  Pet.  14S.  8  L.  ed.  80S: 
Henry  v.  Suttle,  42  Fed.  91:  Phi! 
lipps  v.  Phillipps,  4  Q.  B.  D.  127. 
133. 

6  Lord  Uxbridge  v.  Staveland.  1 
Yes.  Sen.  56:  Egremont  v.  Cowell, 
5  Beav.  620;  Gaines  &  Co.  v.  Stroufe, 
117  Fed.  965;  Mitford's  PI.  40; 
Story's  Eq.   PL,   §§   255,  256. 

7  Harrison  v.  Dixon,  9  Pet.  483, 
503,  9  L.  ed.  201,  208;  Worniahl  v. 
De  Lisle,  3  Beav.  IS:  Brooks  & 
Hardy  v.  O'Hara  Brothers.  8  Fed. 
529:  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
421-425:  infra,  §  137. 

8  Williams  v.  Wilcox.  8  A.  &  E. 
314,  331.  per  Denman.  C.  J.  See 
Steuart  v.  Gladstone,  10  Ch.  D.  644. 

9  Coryell  v.  Klehn.  157  111.  462; 
s.  c,  41  X.  E.  64;  Wyckoff  v.  Wag- 
ner T.  Co.,  88  Fed.  515. 


§  136] 


NARRATIVE    PART. 


477 


information  and  belief."  10  An  allegation  "as  your  orator  is 
informed  and  believes"  was  said  to  be  bad.11  So  was  an  alle- 
gation upon  belief.12  It  is  the  safer  practice  to  set  forth  in  the 
bill  any  facts  which  justify  delay  in  the  commencement  of  the 
suit  or  which  would  take  the  case  out  of  the  bar  of  the  statute 
of  limitations,  if  that  might  otherwise  apply.13  Under  the 
former  practice,  where  the  complainant  anticipated  a  defense 
which  could  only  properly  be  met  by  pleading  new  matter,  it 
was  necessary  to  set  up  the  same  by  way  of  confession  and 
avoidance  in  his  bill.14  This  was  originally  inserted  in  the 
charging  part,  "It  usually  consists  of  some  allegation  or  alle- 
gations which  set  forth  the  matters  of  a  defense  or  excuse  which 
it  is  supposed  the  defendant  intends  or  pretends  to  set  up  to 
justify  his  noncompliance  with  the  plaintiff's  right  or  claim, 
and  then  charges  other  matters,  which  disprove  or  avoid  the 
supposed  defense  or  excuse.  It  is  sometimes  also  used  for  the 
purpose  of  obtaining  a  discovery  of  the  nature  of  the  defend- 
ant's case,  or  to  put  in  issue  some  matter  which  it  is  not.  for 
the  interest  of  the  plaintiff  to  admit;  for  which  purpose  the 
charge  of  the  pretense  of  the  defendant  is  held  to  be  suffi- 
cient." 15  This  was  more  recently,  when  considered  to  be 
necessary,  inserted  in  the  narrative  part  of  the  bill.16  Illus- 
trations of  such  cases  are :  a  prior  patent ; 17  and,  it  seems,  an 


10  Elliott  &  Hatch  Book-Type- 
writer Co.  v.  Fisher  Typewriter  Co., 
109  Fed.  330';  Murray  Co.  v.  Con- 
tinental Gin  Co.,  126  Fed.  533,  a 
charge  of  the  infringement  of  a  pat- 
ent. See  Boyd  v.  Thayer,  143  U.  S. 
13.5,  3G  L.  ed.  103. 

11  Wyckoff  v.  Wagner  Typewriter 
Co.,  88  Fed.  515;  Dupree  v.  Leg- 
gette,  140  Fed.  77G. 

12  Rubber  T.  Co.  v.  Davie,  100 
Fed.  85.  But  see  Leavenworth  v. 
Pepper.  32  Fed.  718:  Kelley  v. 
Bcettcher,  C.  C.  A.,  85  Fed.  553; 
Curran  v.  Campion,  85  Fed.  07. 

13  Edison  El.  Light  Co.  v.  Printa- 
ble Life  Assur.  Soc.  of  U.  S.,  55  Fe<i. 


478.     But  see  Brush  El.  Co.  v.  Ball: 
El.  Light  Co.,  43  Fed.  899. 

14  Curtain  Supply  Co.  v.  Nat. 
Lock  Washer  Co.,  174  Fed.  45. 

15  Story's  Eq.  PI.,  §  31.  See  Mit- 
ford's  PL,  ch.  1,  §  3. 

16  Equity  Rule  21;  Partridge  v. 
Haycraft,  11  Ves.  574. 

17  Curtain  Supply  Co.  v.  Xat. 
Lock  Washer  Co.,  174  Fed.  45,  50. 
Where  the  answer  set  up  a  li- 
cense, complainant  was  not  allowed 
to  prove  an  abandonment  thereof  be- 
cause the  bill  contained  no  allega- 
tion to  that  effect.  Wilson  v.  Stol- 
Ity,  4  McLean,  275. 


478 


BILLS   IN   EQUITY. 


[§  137 


estoppel ; 18  but  not  ordinarily  ultra  vires.19  The  practice  under 
the  new  rules  has  not  been  decided.  In  England,  it  is  well 
settled  that  this  should  not  be  done;20  but  there  the  plaintiff 
has  the  right  to  reply,  by  way  of  confession  and  avoidance  or 
otherwise,  to  any  defense  in  an  answer.21  "Whether  that  is  so 
under  the  new  Federal  Equity  Rules  is  unsettled.22  Under  the 
New  York  Code  of  Civil  Procedure,  a  defense  in  an  answer 
may  be  met  by  confession  and  avoidance  without  any  reply 
or  reference  to  the  same  in  the  complaint  or  other  pleading  by 
the  plaintiff,  unless  a  reply  is, ordered.23 

§   137.  Certainty.    A   bill   must   state   the   plaintiff's   case 
with  sufficient  certainty.1     The  same  precision  of  statement  re- 


18  Hill  v.  Hite,  C.  C.  A.,  85  Fed. 
268.  But  see  Woodward  v.  Boston 
L.  M.  Co.,  G3  Fed.  609;  Story's  Eq. 
PI.,  §  31  ;  Southern  Pac.  K.  Co.  v. 
TJ.  S.,  3  08  U.  S.  1,  42  L.  ed.  355. 

19  Interstate  Construction  Co.  v. 
Regents  of  the  U.  of  Idaho,  199  Fed. 
509.  It  was  held  in  North  Caro- 
lina, that,  where  a  deed  was  pleaded 
in  the  answer  together  with  aver- 
ments of  the  facts  upon  which  its 
validity  depended,  no  amendment  of 
the  hill  was  needed  to  enable  the 
plaintiff  to  attack  the  validity  of 
the  deed.  Boyd  v.  Hawkins,  2  Dev. 
;Eq.    (X.  C.)    195,  215. 

20  Hall  v.  Eve,  4  Ch.  D.  341,  345; 
per  James,  L.  J.:  "It  is  no  part  of 
the  statement  of  claim  to  anticipate 
the  defence,  and  to  state  what  the 
plaintiff  would  have  to  say  in  an- 
swer to  it." 

21  Ibid. 

22  See  §§  195,  203,  infra. 

23  Welsh  v.  German-American 
Bank,  42  X.  Y.  Superior  Ct.  462, 
errors  in  accounts  stated;  Frcund  v. 
Paten.  10  Abb.  X.  C.  311,  fraud  in 
a    discharge    in    bankruptcy. 

§  137.  iThus  it  was  held  that  a 
bill  by  a  receiver  of  a  national 
bank  to  recover  for  the  loss  caused 
to   it   bv   the   negligence    of   its   di- 


rectors, which  prays  relief  against 
the  persons  who  acted  as  directors 
during  various  periods  of  time,  to- 
gether with  the  representatives  of 
such  as  are  dead,  must  "state  the 
dates  of  the  losses  sustained  by 
the  corporation  and  the  dates  of 
the  acts  or  omissions  contributing 
to  those  losses,  with  sufficient  cer- 
tainty to  inform  each  of  the  de- 
fendants with  which  and  how 
many  of  the  losses  it  is  sought  to 
charge  him."  Price  v.  Coleman, 
21  Fed.  357.  But  a  late  decision 
holds  that  upon  such  a  bill  it  is 
unnecessary  to  allege  the  exact 
amount  of  the  loss  arising  from 
each  transaction,  where  that  was 
not  yet  known  but  that  the  acts 
of  the  defendants,  which  were 
charged  to  constitute  negligence  or 
misconduct,  must  be  set  forth  with 
particularity,  and  the  details  of 
the  several  transactions  should  be 
given  with  as  much  fullness  as 
could  be  done  by  the  complainant. 
Allen  v.  Luke,  141  Fed.  094.  The 
following  allegations  were  held  to 
have  sufficient  certainty:  that 
the  defendants  "suffered  and  per- 
mitted the  said  reports,"  which 
were  alleged  to  be  false,  "to  be 
placed    on    file    in    the    Department 


ERRATUM. 

Foster's  Federal  Practice,  5th  Ed.  Vol.  1.— Page  478,  Section  137,  Note 
] — 4th  line  from  the  foot  of  the  page.  Insert  the  word  "not"  before  the 
word   "held." 


137] 


CEKTAINTY. 


479 


quired  in  pleadings  at  law  is  not  necessary.2  Less  certainty  is 
required  concerning;  facts  of  which  a  discovery  is  sought 
from  the  defendant.3  An  allegation  that  an  event  occurred  on  or 
about  a  certain  specified  day  is,  however,  sufficient.4  An  alle- 
gation that  an  event  happened  before  a  specified  date,  without 
averring  the  day  of  the  event,  may  be  the  subject  of  a  motion 
for  a  bill  of  particulars,  but  it  seems  that  it  is  not  a  ground  for 
dismissing  the  whole  bill.5     The  bill  must  state  facts,  not  con- 


of  the  Comptroller  of  the  Cur- 
rency; that  the  said  directors  ut- 
terly failed  and  neglected  to  per- 
form their  aforesaid  official  du- 
ties, and  each  and  every  of  them ; 
and  that  for  a  considerable  period 
of  time  prior  to  said  November 
13th,  1002,  as  hereinbefore  and 
hereinafter  set  forth,  failed  to  give 
any  adequate  attention  to  the 
affairs  of  said  bank,  and  allowed 
the  said  bank  to  be  improvidently 
and  recklessly  managed;"  and 
that  the  defendants  "wholly  failed 
and  neglected  to  make  personal 
examinations  into  the  conduct  and 
management  of  its  affairs  and  into 
the  condition  of  its  accounts." 
Ibid.  For  an  insufficient  allega- 
tion that  plaintiff  was  a  bona  fide 
purchaser  of  a  note  before  its  ma- 
turity, see  Caesar  v.  Capell,  83 
Fed.  401).  For  a  lack  of  certainty 
in  nl  legations  concerning  the  as- 
signment of  a  patent,  see  Jaros 
H.  U.  Co.  v.  Fleece  H.  U.  Co.,  60 
Fed.  622.  A  bill  to  enjoin  the  en- 
forcement as  a  lien  upon  land  of  a 
judgment  entered  a  few  days  after 
complainant  had  begun  to  erect  a 
building  upon  such  land  under  a 
contract  which  lie  claimed  gave 
him  priority  under  a  mechanic's 
lien,  was  held  demurrable  for  lack 
of  certainty  because  it  failed  to 
set  forth  "the  actual  dates  at 
•which  he  commenced,  carried  on, 
and    finished    work    and    labor,    and 


the  actual  dates  on  which  he  fur- 
nished materials,"  in  order  that 
the  court  might  determine  the  va- 
lidity and  extent  and  right  to  pri- 
ority of  the  lien  he  claimed.  Mc- 
Kee  v.  Travelers'  Ins.  Co.,  41  Fed. 
117,  119.  An  allegation  that  a 
song  formed  a  material  part  of  a 
dramatic  composition  was  held  fa- 
tally indefinite  because  it  failed  to 
say  whether  the  pleader  intended 
merely  the  words  of  the  song, 
which  were  set  out  in  the  bill,  or 
also  the  music  to  which  they  were 
sung.  Henderson  v.  Thompkins.  60 
Fed.  758,  765.  It  has  been  held: 
that  a  bill  to  restrain  the  wrong- 
ful diversion  of  water  from  a  street 
is  not  demurrable  for  failure  to  al- 
lege the  particular  point  of  the  di- 
version, and  the  means  and  methods- 
used  therein.  Miller  v.  Rickey,  127 
Fed.  573. 

2Prindle  v.  Brown,  C.  C.  A.,  155 
Fed.  531,  533;  Daniel's  Ch.  Pr., 
1st  Am.  ed.  421;  Storey's  Eq.  PI., 
§  253.  See  Droullard  v.  Baxter,  1 
Scam.    102. 

3  Towle  v.  Pierce,  12  Met.  (Mass.) 
329,  332,  46  Am.  Dec.  679:  Lafa- 
yette Co.  v.  Neely.  21   Fed.   73S. 

4  Richards  v.  Evans,  1  Yes.  Sen. 
39;  Roberts  v.  Williams.  12  East  33, 
37:  Leigh  v.  Leigh.  Daniell's  Ch.  Pr. 
369. 

SPriridle  v.  Brown.  C.  C.  A..  155. 
Fed.  531.  533.     See  §  242,  infra. 


480 


BILLS  IN  EQUITY. 


[§   In- 


clusions of  law  which  will  he  disregarded  hy  the  court.6  Thus 
the  averment  of  irreparable  injury  will  be  disregarded  in  the 
absence  of  allegations  of  facts  from  which  the  court  can  see  that 
irremediable  mischief  may  be  apprehended  from  the  threatened 
wrong.7  An  allegation  that  a  decree  was  null,  void  and  inoper- 
ative, is  insufficient  without  a  specification  of  the  defects  in 
the  same.8  An  allegation,  that  an  act  complained  of  was  not 
a  judicial  act,  and  was  done  without  the  jurisdiction  of  a 
judge,  is  a  mere  conclusion  of  law.9  A  general  charge  of  fraud 
is  not  sufficient,  but  it  must  allege  the  specific  acts  or  language 
which  constitute  the  fraud.10     All  the  evidence  of  the  fraud 


6  Harper   v.   Hill,   35   Miss.   63. 

7  Indian  Land  &  Trust  Co.  v. 
Schoenfelt,  C.  C  A.,  135  Fed.  484. 

8  Flannigan  v.  Chapman  &  Dewey 
Land  Co.,  C.  C.  A.,  144  Fed.  371. 
See  U.   S.  v.   Norseh,  42   Fed.   417. 

9  0'Connell  v.  Mason,  132  Fed. 
245. 

10  Gilbert  v.  Lewis,  1  De  G.  J.  & 
Sm.  38,  49;  Bryan  v.  Spruill,  4 
Jones  Eq.  (N.  C.)  27;  U.  S.  v. 
Atherton,  102  U.  S.  372,  26  L.  ed. 
213;  U.  S.  v.  Norseh,  42  Fed.  417. 
But  see  Field  v.  Hastings  &  Bradley 
€o.,  65  Fed.  279;  Kittel  v.  Augusta. 
T.  &  G.  B.  Co.,  65  Fed.  859;  Patton 
v.  Glatz,  56  Fed.  367;  Von  Horst 
v.  Am.  Hop  &  Barley  Co.,  177  Fed. 
976.  where  allegations  that  an  as- 
sessment was  made  pursuant  to  a 
•conspiracy    to   deprive    complainant 

of  his  stock,  was  held  to  be  insuffi- 
cient without  any  showing  of  facts 
tending  to  prove  such  conspiracy  or 
improper  motive;  James  v.  City  In- 
vesting Co.,  188  Fed.  513.  See 
infra.  A  bill  to  set  aside  a  decree 
for  fraud  must  specifically  state 
the  manner  in  which  the  imposi- 
tion was  practiced  upon  the  court. 
IT.  S.  v.  Norseh,  42  Fed.  417;  V. 
S.  v.  Rose.  166  Fed.  999,  a  bill  to 
set  aside  a  decree  of  naturalization. 
So    held    where    a    bill    attacked    a 


land  patent  for  fraud  and  mistake. 
Le  Marchel  v.  Teegarden,   133   Fed. 
826.     In  a  suit  to  set  aside  convey- 
ances  of   land,   made   by   an   execu- 
tor    in     probate     proceedings,     alle- 
gations  that   the  sales   were   fraud- 
ulently    conducted     are     insufficient 
without    any   averment   of   the   sub- 
stantive       facts        justifying        the 
charge.      Williamson    v.    Beardsley. 
137  Fed.  467.     A  bill  to  set  aside  a 
land  patent  on  account  of  fraud  or 
mistake  must  state  the  particulars 
of    the    fraud,    the    names    of    those 
engaged    therein,    the    officers    who 
were    deceived    and    the    manner    in 
which     the     mistake    occurred.      U. 
S.    v.    Atherton.    102    U.    S.    372,    26 
L.   ed.   213.    But   see   U.   S.   v.   Am. 
Bell   Tel.   Co.,  128   U.   S.   315,   32  L. 
ed.   450.     A   bill   to  enjoin   the  con- 
struction  of   a   county   vault,  which 
avers    that    the    commissioners    who 
let  the  contract  "were   imposed  up- 
on   by    false    and    fraudulent    repre- 
sentation made  to  them  by     .     .     . 
the  contractor  and  carpenter,  as  to 
the   character,   quality,   and   cost   of 
the    material    of    said    vault,"    does 
not  show  with  sufficient  definiteness 
what    representations    were    made; 
and  an  averment  "that  said  contract 
or  agreement  was  made  by  collusion 
or   agreement  between   said    A.    and 


137J 


CERTAINTY. 


481 


ueed  not  be  pleaded.11  It  is  sufficient  if  the  main  facts  or  inci- 
dents which  constitute  the  fraud  against  which  relief  is  desired 
are  fairly  stated  so  as  to  put  the  defendant  upon  his  guard  and 
apprise  him  of  whatever  answer  may  be  required  of  him.12  An 
allegation  of  a  fraudulent  intent  was  held  to  be  an  allegation 
of  a  fact.13    A  bill  for  relief  from  an  old  fraud  must  state  the 


co-respondents,  or  some  of  them, 
in  order  to  give  said  A.  an  undue 
advantage  in  the  erection  of  the 
vault  over  any  other  persons,  to 
the  great  damage  and  injury  of 
the  county,"  is  sufficient  as  fail- 
ing to  set  out  the  facts  constitut- 
ing collusion.  Hays  v.  Alrichs, 
115  Ala.  239;  s.  c,  22  S.  R.  465. 
See  Moore  v.  Hawkins,  10  How.  69, 
15  L.  ed.  533. 

"  U.  S.  v.  Am.  Bell  Tel.  Co.,  128 
U.  S.  315,  316,  32  L.  ed.  450.  It  has 
been  held  that  a  creditor's  bill  for 
an  injunction  and  a  receiver,  be- 
cause of  the  fraudulent  disposition 
of  assets,  need  not  describe  the  as- 
sets. Shainwald  v.  Lewis,  6  Fed. 
766,  775. 

12  U.  S.  v.  Am.  Bell  Tel.  Co.,  128 
U.  S.  315,  316,  32  L.  ed.  450. 

13  Piatt  v.  Mead,  9  Fed.  91.  In  a 
suit  for  a  conveyance  of  land,  it 
was  held  to  be  sufficient  to  allege 
that  the  defendant,  while  plain- 
tiff's agent,  proposed  that  she  con- 
vey the  property  to  him  for  the 
purposes  of  its  management,  and 
promised  that  he  would  reconvey 
it  upon  demand,  which  promise  he 
then  had  no  intention  of  perform- 
ing, but  made  in  order  to  fraudu- 
lently procure  the  land;  and  that 
she  was  induced  by  his  promise 
and  representations  to  make  the 
transfer.  Alaniz  v.  Casenave,  91 
Cal.  41.  See  also  Tyler  v.  Savage, 
143  U.  S.  79,  36  Ii.  ed.  82;  Peek 
v.  Vinson.  124  Ind.  12;  Lawrence  v. 
Gayetty,    78    Cal.    126,    12   Am.    St. 

Fed.  Prac.  Vol.  I.— 31. 


Rep.  29.  An  averment  that  one 
B.  was  from  infancy  of  unsound 
mind,  and  that  his  mother  and  her 
legal  adviser  procured  a  deed  from 
him  for  a  grossly  inadequate  con- 
sideration, which  was  never  paid, 
is  a  sufficient  averment  of  fraud. 
Rhino  v.  Emery,  C.  C.  A.,  72  Fed. 
382.  The  allegation  that  a  decedent, 
when  very  feeble  both  in  mind  and 
body,  was  persuaded  and  induced 
through  some  undue  and  improper 
influence,  unknown  to  complainants, 
to  execute  a  deed,  was  held  to  be  in- 
sufficient. Jackson  v.  Bowell,  87 
Ala.  685,  4  L.R.A.  637.  But  see 
Mott  v.  Mott,  68  N.  Y.  246;  s.  c, 
22  Atl.  797,,  tited  infra,  §  138.  A 
bill  alleged  "that  the  bank  was  in- 
solvent on  the  5th  day  of  May;  that 
this  was  well  known  to  its  officers; 
that  it  wrongfully  neglected  to  dis- 
close its  insolvency  to  complainant 
and  by  continuing  business  and 
otherwise  represented  to  complain- 
ant and  all  other  persons  dealing 
with  it,  that  it  was  solvent;  that 
complainant,  on  the  faith  of  these 
representations,  believed  such  to  be 
the  fact,  without  suspicion  that  the 
bank  was,  or  was  in  danger  of  be- 
coming, insolvent;  that,  acting,  up- 
on the  representations,  and  relying 
on  the  bank's  solvency,  complainant 
delivered  the  draft;  that  next  morn- 
ing the  bank  closed  its  doors,  and 
the  draft  was  collected  thereafter; 
and  that,  by  reason  of  the  prem- 
ises, the  draft  or  its  proceeds  did 
not    become    the     property     of     the 


4  .si' 


BILLS   IN   EQUITY. 


[§  137 


time  of  the  discovery  of  the  fraud,  the  reason  why  it  was  not 
discovered  earlier,  the  means  used  by  the  defendant  to  conceal 
it,  the  manner  in  which  it  was  learned,  and  the  diligence  with 
which  the  transaction  was  investigated.14  A  general  allegation 
of  concealment  and  ignorance  is  insufficient.15  It  is  insufficient 
to  allege  that  the  defendant  is  a  trustee  without  stating  the  facts 
that  show  how  the  trust  arose.16  In  a  bill  to  set  aside  a  freight 
rate  established  by  a  State  board  or  officer,  it  is  insufficient  to 
aver  that  the  rates  are  unjust  and  unreasonable  aud  to  aver 
their  prospective  effect  without  stating  concrete  facts  from 
which  such  effect  can  logically  or  naturally  result,17  and  it  is  in- 
sufficient to  allege  that  the  known  loss  resulting  from  the  rate 
will  be  a  specified  amount  without  stating  the  facts  from  which 


bank."  These  allegations  were 
held  sufficient  to  charge  fraud. 
"The  omission  to  state  in  the 
pleading  the  degree  of  insolvency 
which  rendered  the  bank's  con- 
duct fraudulent  was  not  fatal,  as 
the  conclusion  asserted  showed  the 
intention  of  the  pleader."  St. 
Louis  &  S.  F.  Ry.  Co.  v.  Johnson, 
133  U.  S.  566,  577,  578,  33  L.  ed. 
683,  686,  687.  On  a  bill  against  the 
officers  of  a  bank  for  damages 
caused  by  the  bad  management  of 
its  affairs,  it  was  held  that  specific 
allegations,  which  in  themselves 
might  not  be  sufficient,  when  sup- 
ported by  general  allegations  of  mis- 
conduct and  negligence,  made  out  a 
case  for  relief.  Ackerman  v.  Halsey, 
37  N.  J.  Eq.  336;  S.  c,  38  N.  J. 
Eq.   501. 

14  Badger  v.  Badger,  2  Wall.  95. 
17  L.  ed.  838:  Hubbard  v.  Manhat- 
tan Trust  Co.,  C.  C.  A.,  87  Fed.  51; 
Edwards  v.  Mercantile  Trust  Co., 
124  Fed.  381;  Cutter  v.  Iowa  Water 
Co.,  128  Fed.  505.  For  allegations 
held  to  be  sufficient,  see  Lockhart 
v.  Leeds.  195  U.  S.  427,  49  L.  ed. 
263.  See  Bangs  y,  Loveridge,  60 
Fed.   963. 

15  Ibid.    Where,  as  an   excuse  for 


laches,  it  is  alleged  that  negotia- 
tions were  pending  from  which 
plaintiff  hoped  to  obtain  a  settle- 
ment, the  bill  should  allege  that 
his  adversary  encouraged  such 
hope.  Mackall  v.  Casilear,  137  U. 
S.  556,  567,  34  L.  ed.  776,  779. 

16  Evan  v.  Avon,  29  Beav.  ]44; 
Dickinson  v.  Kempner,  193  Fed.  204. 
It  was  held :  that  a  bill  by  a  judg- 
ment debtor  against  the  judgment 
creditor  and  other  defendants,  which 
alleged  that  the  creditor  would 
hold  a  certain  part  of  an  amount 
collected  on  the  judgment  in  trust 
for  his  co-defendants,  or  one  of 
them;  and  that  complainant  had 
a  set-off  against  each  and  all  of 
such  co-defendants;  was  not  in- 
sufficient for  uncertainty,  because 
it  did  not  allege  which  of  fcbem 
was  the  owner  of  the  beneficial 
interest  in  the  judgment;  there 
being  averments  that  complainant 
had  no  knowledge  as  to  such  fact 
and  prayed  discovery  in  relation 
to  the  same.  Brown  v.  Pegram, 
149   Fed.   515. 

17  Southern  Pac.  Co.  v.  Railroad 
Commission  of  California.  193  Fed. 
699;  Northern  Pac.  Ry.  Co.  v.  Lee, 
199   Fed.   621. 


§  137J 


CERTAINTY. 


483 


such  result  is  reached,  nor  that  the  railroad's  principal  business 
between  the  points  affected  consists  of  interstate  commerce  and 
the  road  will  be  compelled  to  lower  its  interstate  rates  without 
showing  what  part  of  the  predicted  loss  will  be  on  the  traffic 
affected  as  distinguished  from  the  general  body  of  traffic.     It 
has  been  said  that  the  biall  must  disclose  facts  showing  with 
reasonable  definiteness,  not  only  the  present  total  value  and 
total  gross  revenue  of  the  road  affected,  but  also  the  gross  rev- 
enue from  each  class  of  business,  interstate  and  local,  freight, 
passenger  or  other,  and  the  proportionate  property  values  de- 
voted thereto,  together  with  the  gross  operating  expenses  and  a 
proportionate  application  thereof  to  such  different  classes  of 
traffic,  so  that  the  net  revenue  from  each  source  may  be  there- 
by ascertained.18     In  a  bill  to  enjoin  railroads  from  discrimi- 
nating between  white  and  black  passengers,  it  is  insufficient  to 
aver  that  passenger  coaches  maintained  for  the  Negro  race  are 
not  provided  with  separate  and  equal  toilet  and  waiting  rooms 
for  male  and  female  passengers,  nor  equal  smoking  accomo- 
dations, nor  separate  and  equal  chair-cars,  sleeping-cars   and 
dining-car  accomodations.19     An   allegation   that  a  defendant 
corporation  is  about  to  exceed  its  powers  is  insufficient.     The 
bill  must  show  what  acts  are  threatened,  and  why  they  exceed 
the  powers  of  the  corporation.20    It  has  been  said  that  as  much 
certainty  is  required  in  a  bill  by  a  stockholder  to  enforce  a 
corporate  right  as  in  a  bill  by  the  corporation  for  the  same 
purpose.21     In  a  stockholders'  suit  to  wind  up  a  corporation 
as  insolvent,  it  is  not  necessary  that  all  the  property  of  the 
corporation  should  be  specifically  described  in  the  bill.22     The 


18  Southern  Pac.  Co.  v.  Kailroad 
Commission  of  California,  193  Fed. 
699. 

WM'Cabe  v.  Atchison,  T.  &  S. 
F.  Ry.  Co.,  C.  C.  A.,  186  Fed.  966. 

20  Leo  v.  Union  Pac.  Ry.  Co.,  19 
Fed.   283. 

21  Whitney  v.  Fairbanks,  54  Fed. 
985. 

22  Williams  v.  Am.  Ass'n,  C.  C.  A., 
397  Fed.  500.  A  bill  by  a  stock- 
holder seeking  dissolution  of  a  corp- 
oration and  accounting,  alleged  that 
business       had       been       suspended, 


"among  other  things,"  because  of 
the  worthlessness  of  a  patent  under 
which  it  had  been  carried  on,  but 
without  stating  that  that  was  the 
controlling  reason;  that  the  offi- 
cers were  misapplying  the  funds, 
but  without  stating  that  any  effort 
had  been  made  to  have  the  corpo- 
ration bring  suit;  that  the  officers 
had  tampered  with  the  books,  but 
without  stating  in  what  manner; 
that  certain  assets  had  not  been 
entered  in  the  books,  but  without 
charging      concealment      or      inten- 


484 


BILLS  IN   EQUITY. 


[§  137 


allegation  that  the  corporation  cannot  pay  its  current  obli- 
gations as  they  mature  and  is  unable  in  the  ordinary  course  of 
its  business  to  pay  its  liabilities,  is  a  sufficient  allegation  of 
insolvency  in  a  bill  that  prays  the  appointment  of  a  receiver.23 
"The  pleader  should  state  the  facts,  and  not  formulate  mere 
epithetic  'charges.'  ...  If  the  facts  are  not  to  be  ascer- 
tained by  diligence,  or  because  of  some  obstruction,  or  if  the 
evidence  of  them  is  in  possession  of.  the  other  side,  this  should 
be  made  to  appear,  with  technical  averments  showing  the  neces- 
sity of  discovery,  when  that  is  wanted ;  but  a  court  cannot  sus- 
tain a  bill  upon  mere  denunciatory  statements  of  the  plaintiff's 
suspicions  or  belief.  The  best  pleadings  are  those  which  state 
the  inculpatory  facts  that  carry  with  them  their  own  conviction 
of  the  fraud,  and  by  which  the  wrongdoing  appears,  without 
much  necessity  for  characterizing  it  as  such."  24  The  bill  should 
state  facts,  not  evidence.25     It  should  not  state  admissions.26 


tional  wrong.  It  was  held  that  the 
allegations  were  too  general  and 
indefinite  to  justify  granting  re- 
lief. Watson  v.  U.  S.  Sugar  Ee- 
finery,  C.  C.  A.,  68  Fed.  769. 

23  Am.  Can  Co.  v.  Erie  Preserving 
Co.,  171  Fed.  540;  Cincinnati  Equip- 
ment Co.  v.  Degnan,  C.  C.  A.,  1S4 
Fed.    834. 

24  Lafayette  Co.  v.  Neely,  21  Fed. 
738. 

25  Eq.  Rule  25. 

26  This  was  held  hy  Judge  Story 
not  to  be  the  rule  in  this  country. 
Smith  v.  Burnham,  2  Sumner,  C. 
C.  612;  Jenkins  v.  Eldredge,  3  Story 
C.  C.  181,  2S3,  284;  Story's  Eq. 
PL.  §  265.  By  the  English  Chancery 
practice,  admissions  could  not  he 
put  in  evidence  unless  they  had 
been  specifically  set  forth  in  the 
bill.  Hall  v.  Malthy.  0  Price,  240; 
Evans  v.  BicknelL  6  Yes.  183;  Aus- 
tin v.  Chambers,  6  CI.  &  Fin.  3S ; 
Story's  Eq.  PL,  §  265.  This  is  no 
longer  the  practice  there.  Davy  v. 
Garrett.  7  Ch.  D.  473.  47  L.  J. 
Ch.  218,  26  \Y.  1!.  225,-38  L.  T.  77, 


(letters)  ;  Jones  v.  Turner,  (1875) 
W.  X.  230,  (plaintiff  had  "been  in- 
formed by  the  defendant").  Accord- 
ing to  Professor  Langdell,  "when 
a  bill  charges  a  defendant  with  hav- 
ing had  notice,  or  with  having  com- 
mitted a  fraud,  or  with  insanity,  or 
drunkenness,  or  lewdness,  or  mis- 
conduct in  office,  if  the  plaintiff  in- 
tends to  prove  specific  acts  of  no- 
tice, or  of  fraud,  insanity,  drunk- 
enness, lewdness  or  misconduct  m 
office,  it  seems  that  such  acts  should 
be  specifically  charged  in  the  bill. 
But  this  view  is  not  fully  supported 
by  authority.  It  may  also  be  stated 
generally,  that  whenever  the  plain- 
tiff has  evidence  which  is  likely  to 
take  the  defendant  by  surprise,  it 
is  the  safer  course  to  indicate  its 
nature  in  the  bill,  rather  than  to 
run  the  risk  of  having  it  objected 
to  at  the  hearing."  Langdelks  Eq. 
PL,  §  60.  See  Weston  v.  Empire 
Assurance  Corporation,  L.  R.  6  Eq. 
2.!:  Clark  v.  Periam,  2  Atk.  337; 
Shepherd  v.  Morris,  4  Beav.  252. 


138] 


DOUBLE   ASPECT. 


m 


Objections  to  a  bill  for  certainty  should  be  raised  by  a  special 
motion  to  dismiss  upon  that  ground,27  or  by  a  motion  for  a 
further  and  better  statement  of  the  nature  of  the  claim  or  further 
and  better  particulars  of  the  matter  stated.28  By  the  former 
practice,  when  not  raised  by  demurrer,  they  were  ordinarily 
held  to  have  been  waived.29 

§  138.  Inconsistency   and   bills  with  a   double   aspect. 

The  Equity  Eules  of  1912  provide:  that  the  relief  prayed 
"may  be  stated  and  sought  in  alternative  forms."  1  It  has  not 
yet  been  decided  whether  this  changes  the  former  practice,  which 
was  as  follows :  A  bill  must  not  state  two  inconsistent  states 
of  fact  and  ask  relief  in  the  alternative.  But  it  may  state  the 
facts  and  ask  relief  in  the  alternative  according  to  the  conclu- 
sion of  law  that  the  court  mav  draw  from  them,  so  that  if  one 
kind  of  relief  sought  be  denied,  another  may  be  granted;  and 
it  may  state  facts  of  a  different  nature  not  inconsistent  with 
each  other,  and  equally  supporting  the  prayer  for  relief.  In 
both  of  these  cases  a  bill  is  said  to  have  "a  double  aspect."  2 
Thus,  a  bill  may  state  facts  constituting  an  attempt  to  form  a 
new  corporation  by  the  consolidation  of  two  already  existing 
and  pray  that,  if  the  new  corporation  have  a  legal  existence,  the 
plaintiif  may  be  declared  entitled  to  a  certain  number  of  shares 
therein,  otherwise  to  a  corresponding  interest  in  the  stock  of  one 
of  the  old  companies.3  A  bill  to  enjoin  the  infringement  of  a 
copyright  may  set  forth  an  agreement  between  the  author  and 
the  plaintiff,  and  then  allege  that  if  such  agreement  does  not 
constitute  an  assignment  of  the  copyright,  it  is  an  exclusive  li- 


27  See   Eq.   Rule    29. 

28  Eq.  Rule  20;   infra,  §§  240-242. 

29  Chicago,  M.  &  St.  P.  R.  Co. 
v.  Pullman  P.  C.  Co.,  50  Fed.  24; 
Green  v.  Terwilliger,  5G  Fed.  384; 
Thomas  v.  Nantahala,  M.  &  T.  Co., 
C.  C.  A.,  58  Fed.  485;  Rorback  v. 
Dorsheimer,  25  X.  J.  Eq.  510,  518; 
Mason   v.   Daly,    117   Mass.   403. 

§   138.     lEq".  Rule  25. 

2  Shields  v.  Barrow,  17  How.  130, 
144,  15  L.  ed.  158,  162;  Halsey  v. 
Goddard,  86  Fed.  25;   Shackleton  v. 


Baggaley,  C.  C.  A.,  170  Fed.  57, 
Story's  Eq.  PI.,  §  426,  note,  §  254. 
3  Kilgour  v.  New  Orleans  Gas- 
Light  Co.,  2  Woods,  144,  148.  The 
averment  "that  if  said  intention  is 
true,  which  is  denied,  then  the 
said  State  law,  ...  is  null 
and  void,  because  it  operates  as  a 
discrimination  against  the  share- 
holders of  national  banks,  in  vio- 
lation of  the  express  terms  of  § 
5219  of  the  Revised  Statutes  of 
the  United   States."   is   sufficient  to 


486 


BILLS   IX  EQUITY. 


[§  138 


cense.4  The  complainant  may  seek  to  quiet  the  title  to  lands, 
claiming  either  as  devisee  or  as  heir-at-law.5  A  bill  may  con- 
tain a  prayer  that  an  agreement  be  either  set  aside  as  obtained 
by  fraud,  or  else  specifically  enforced  6  or  an  accounting  there- 
under directed,7  or  else  that  it  be  reformed,  or  if  that  cannot 
be  allowed  that  it  be  cancelled,8  or  else  that  a  lien  upon  the 
same,  in  favor  of  the  plaintiff,  be  foreclosed,9  or  that  the  de- 
fendant either  restore  property  obtained  by  fraud  or  else  pay 
the  value  of  the  same.10  When  the  complainant  alleged  that 
a  decree  which  he  wished  to  set  aside  was  obtained  either  by 
mistake  of  all  the  parties,  or  by  deception  practiced  upon  him- 
self, or  by  collusion  of  the  defendant  with  third  parties,  the  bill 
was  held  to  be  demurrable  for  indefiniteness.11     "To   allege 


raise  the  issue  whether  there  is  in 
the  act  any  discrimination  prohibit- 
ed by  the  act  of  Congress.  Whit- 
ney Nat.  Bank  v.  Parker,  41  Fed. 
402,    406. 

4  Black  v.  Henry  G.  Allen  Co.,  9 
L.R.A.  433,  42  Fed.  618,  623.  See 
Chaffin    v.    Hull,    39    Fed.    877. 

5  Gaines  v.  Chew,  2  How.  619,  643, 
11   L.  ed.  402,  411. 

6  Hardin  v.  Boyd,  113  U.  S.  756, 
28  L.  ed.  1141.  But  see  Shields  v. 
Barrow,  17  How.  130,  143,  15  L. 
ed.  158,  161;  St.  Louis,  V.  &  T. 
H.  R.  Co.  v.  Terre  Haute  &  I.  R. 
Co.,  33  Fed.  440,  448.  But  see 
Cella  v.  Brown,  C.  C.  A.,  144  Fed. 
742.  A  bill  was  sustained  when 
filed  by  one  partner  against  an- 
other praying  for  specific  per- 
formance of  a  contract  for  the 
sale  of  land,  or  else  for  an  ac- 
count of  the  partnership  debts, 
and  a  charge  of  their  amount  upon 
the  land  as  belonging  to  the  as- 
sets of  the  firm.  Hoxie  v.  Carr, 
1  Sumn.  173.  It  was  held:  that  a 
bill  was  not  demurrable  for  mul- 
tifariousness, or  as  based  on  an- 
tagonistic rights,  when  it  alleged 
tliat   a  mortgage  debt  was  paid  be- 


fore the  mortgage  was  foreclosed 
under  a  power  of  sale,  and  asked 
that  the  mortgage  and  deed  be 
canceled,  and,  at  the  same  time, 
asked  that  the  sale  be  set  aside 
because  the  mortgagee  became  the 
purchaser  at  his  own  sale.  Dick- 
erson  v.  Winslow,  97  Ala.  491; 
s.  c,  11  S.  R.  918.  But  see  Cut- 
ler v.  Iowa  Water  Co.,  96  Fed.  777. 
It  was  held  that  bills  were  not 
demurrable  for  multifariousness, 
nor  based  upon  antagonistic  rights, 
which  they  prayed,  for  specific  per- 
formance of  an  agreement  to  deliver 
coal  in  return  for  an  advance  of 
money,  and  in  the  alternative  for 
the  foreclosure  of  a  mortgage,  by 
which  the  return  of  the  money  was 
secured  (Peale  v.  Marian  Coal  Co., 
172    Fed.    639),    and    which 

7  Jackson  v.  Jackson,  C.  C.  A.,  1 75 
Fed.    710. 

8  Electric  Goods  Mfg.  Co.  v.  Kol- 
tonski,  171  Fed.  550. 

9  Jones  v.  Missouri-Edison  El.  Co., 
C.  C.  A.,  144  Fed.  765. 

10  Hubbard  v.  Urton,  67  Fed.  419. 
But  see  Alger  v.  Anderson,  92  Fed. 
696. 

"Brooks  v.  0:Hara,  8  Fed.  529; 


§   138] 


DOUBLE   ASPECT. 


487 


that  a  sale  is  simulated  and  if  not  simulated  is  fraudulent, 
meaning  thereby  it  is  a  sham  sale,  and  if  not  a  sham  then 
a  real  sale,  but  fraudulent,  may  be  consistent,  but  it  is  not  cer- 
tain; and  certainty  is  a  requisite  in  equity  pleading  as  well 
as  consistency.  It  seems  to  me  that,  if  there  is  doubt  as  to  the 
nature  of  the  transaction,  the  creditor,  who'has  'to  strike  in  the 
dark/  should  charge  a  fraudulent  simulation,  and  on  discovery 
amend  if  necessary."12  It  was  held  in  England  that  a  bill 
may  not  pray  relief  primarily  against  one  of  two  defendants, 
and,  in  case  the  court  should  hold  him  free  from  liability,  then 
against  the   other.13      It  was  held   that  where   a   bill   prayed 


s.  a,  2  McCrary,  644.  But  see  Wil- 
liams v.  U.  S.,  138  U.  S.  514,  517, 
34    L.    ed.    1020,    1028. 

12  Pardee,  J.,  in  Soeola  v.  Grant, 
15    Fed.    487,    489. 

A  bill  by  a  judgment  creditor  of 
a  railroad  company,  against  that 
and  another  railroad  company,  to 
redeem  property  in  the  possession 
of  the  latter  company  as  mort- 
gagee, on  the  ground  that  such 
possession  was  fraudulently  ac- 
quired, and  also  to  subject  to  the 
payment  of  the  judgment  certain 
bonds  about  to  be  issued  by  the 
latter,  to  the  officers  of  the  for- 
mer company,  in  order  to  confirm 
the  title  to  such  property,  was 
held  to  be  bad  as  multifarious. 
Merriman  v.  Chicago  &  E.  I.  R. 
Co.,  C.  C.  A.,  64  Fed.  535,  550,  551, 
per  Baker  D.  J.:  "If  the  appellant's 
case  was  solely  that  the  Eastern 
Illinois  Company  has  no  title  to 
the  property  of  the  Danville  Com- 
pany, they  might  pray  for  various 
forms  of  alternative  relief  consist- 
ent with  that  case :  but  they  can- 
not in  the  same  bill  make  a  case 
that  it  has  no  title,  and  also  a 
case  that  it  has  a  title,  and  then 
ask  for  inconsistent  relief  accord- 
ing to  the  different  cases  thus  made. 
Such  course  of  procedure  we  do  not 


understand  is  warranted  by  the  doc- 
trine of  alternative  relief.  Such 
are  alternative  cases,  and  not  cases 
of  alternative  relief.  They  are  in- 
consistent, for  a  decree  of  one  of 
those  forms  of  relief  would  proceed 
upon  a  theory  fatal  to  the  other 
form   of   relief." 

Where  a  bank  filed  a  bill  to  fore- 
close a  mortgage  and  to  restrain 
a  sale  of  the  mortgaged  property 
to  satisfy  a  judgment  obtained 
against  it  by  another,  and  the 
holder  of  the  judgment  thereupon 
filed  an  answer  and  cross-bill  al- 
leging that  the  mortgage  had  been 
withheld  from  record  in  fraud  of 
creditors,  and  praying  that  the 
property  be  sold  to  satisfy  the 
judgment,  and  the  complainants 
filed  an  amendment  alleging  that, 
previous  to  the  recovery  of  the 
said  judgment,  they  themselves 
had  recovered  a  judgment  upon 
an  indebtedness  separate  and  dis- 
tinct from  the  mortgage  indebted- 
ness, and  that  if  their  mortgage 
was  invalid  they  had  a  prior  lien 
under  this  judgment;  it  was  held 
that  the  bill  was  demurrable  for 
multifariousness.  Mobile  Savings 
Bank  .v.  Burke,  94  Ala.  125.  ]<i  S. 
R.  328. 

13  Clark   v.  Lord   Rivers,  L.   R.  5 


i-s 


BILLS   IX  EQUITY. 


[§   138 


specific  performance  of  a  contract  in  relation  to  certain  pat- 
ents, and  also  contained  expressions  looking  for  relief  by  an 
injunction  against  an  infringement  of  a  patent,  it  could  not 
be  maintained  for  the  latter  relief  as  a  bill  with  a  double  as- 
pect, since  the  necessary  parties  must  be  different  in  each 
case.14  And  that  a  bill  could  not  obtain  a  preliminary  injunc- 
tion to  restrain  infringement  through  sales,  made  by  defendant, 
in  violation  of  the  terms  of  its  license,  where  the  bill  also 
prayed  for  additional  relief,  which  could  only  be  granted  if 
the  license  was  still  in  force.15  It  was  further  held :  that  a  bill 
was  bad  when  it  contained  two  alternative  claims  each  belong- 
ing to  several  persons,  of  whom  one  had  no  interest  in  one 
claim,  and  others  had  no  interest  in  the  other ;  that  a  bill  should 
not  pray  in  the  alternative  legal  and  equitable  relief,17  and  that 
a  bill  in  equity  with  a  double  aspect  must  state  each  position 
separately  and  distinctly.18  Under  the  modern  practice  in  Eng- 
land, it  has  been  held  that,  in  an  action  for  the  recovery  of  land, 
plaintiff  may  claim  possession  as  the  residuary  devisee;  and,  in 
the  alternative,  should  the  will  be  held  invalid,  as  heir  at  law.19 
"When  the  pleadings  are  so  framed  as  to  rest  the  claim  for  re- 
lief solely  on  the  ground  of  fraud,  it  is  not  open  to  the  plain- 
tiff, if  he  fails  in  establishing  the  fraud,  to  pick  out  from  the 


Eq.  91,  97.  But  see  Kilgour  v.  New 
Orleans  G.  L.  Co..  2  Woods.  144, 
148;  Brown  v.  Pegram,  149  Fed. 
515.  "The  plaintiff  brought  a  bill  in 
equity  joining  A  and  B  as  defend- 
ants. The  bill  alleged  that  the 
plaintiff  owned  a  lot  fifty  feet  wide, 
that  A  owned  a  lot  on  one  side  and 
B  owned  a  lot  on  the  other  side  of 
the  plaintiff's  lot,  that  all  three 
(laimed  under  a  common  grantor, 
that  A  and  B  had  erected  buildings 
on  their  lots,  that  these  buildings 
were  less  than  fifty  feet  apart,  but 
that  the  plaintiff's  surveyors  could 
not  agree  as  to  which  defendant  was 
encroaching.  The  bill  prayed  for  a 
determination  of  the  encroachment 
and  a  decree  for  the  removal  of  the 
encroaching  building  and  damages. 
Held,  that  the  bill   is  not  demurr- 


able.    Caleo  v.  Goldstein,  118  N.  Y. 
Supp.  859,    (Sup.  Ct.,  App.  Div.) 

l*  Am.  Box  Mach.  Co.  v.  Crosman, 
57  Fed.  1021.  See  Magic  R.  Co.  v. 
Elm  City  Co.,  13  Blatch.  151;  Hal- 
sey  v.  Goddard,  86  Fed.  25. 

15  Lovell-McConnell  Mfg.  Co.  v. 
Waite  Auto  Supply  Co.,  198  Fed. 
130. 

16  Stebbins  v.  St.  Anne,  116  U.  S. 
386,  29  L.  ed.  667. 

17  Cherokee  Nation  v.  Southern 
Kansas  Ry.  Co.,  135  U.  S.  641,  651, 
34  L.  ed.  295,  300;  Alger  v.  Ander- 
son, 92  Fed.  696. 

18  Electric  Goods  Mfg.  Co.  v.  Kol- 
tonski,    171    Fed.    550. 

19  Annual  Practice,  1913,  p.  317. 
But  see  Field  v.  Camp,  193  Fed. 
160. 


§  138] 


DOUBLE   ASPECT. 


4S9 


allegations  of  the  bill  facts  which  might,  if  not  put  forward  as 
proofs  of  fraud,  have  vet  warranted  the  plaintiff  in  asking  for 
relief.  A  defendant  in  answering  a  case  not  founded  on  fraud 
is  not  bound  to  do  more  than  answer  the  case  in  the  mode  in 
which  it  is  put  forward.  If.  indeed,  relief  is  asked  alternative- 
ly, either  on  the  ground  of  fraud,  or,  failing  on  that  ground, 
on  some  other  equity,  a  plaintiff  failing  on  the  first  may  suc- 
ceed on  the  latter  alternative.  But  when  the  attention  of  the 
defendant  has  been  distinctly  called  to  it,  and  he  has  been  called 
upon  to  answer  the  case  according  to  both  alternatives,  it  is  the 
duty  of  the  judge  to  determine  wdiether  the  two  are  so  inter- 
woven with  each  other  that,  on  the  failure  of  proof  of  fraud,  it 
is  impossible  to  treat  the  facts  as  separate  allegations,  justify- 
ing a  separate  mode  of  dealing  with  them."  20  Thus,  it  has 
I  icon  held,  that  where  a  bill  to  rescind  a  contract  was  based  solely 
upon  alleged  fraudulent  representations  by  defendant,  it  could 
not  be  sustained  upon  proof  of  a  mutual  mistake ; 21  and  upon 
a  bill  to  set  aside  a  decree  for  fraud  and  error,  apparent  upon 
the  record,  relief  upon  proof  of  a  mistake  of  fact  was  denied.22 
This  objection  cannot  be  raised  for  the  first  time  upon  an  ap- 
peal.23 When  a  bill  alleges  both  fraud  and  mistake,  if  the  lat- 
ter alone  is  proved  the  bill  will  be  sustained.24  If  the  plaintiff 
wish  to  set  aside  a  deed  on  account  of  fraud,  imposition,  and 
undue  influence,  he  may  allege  both  that  the  maker  was  insane 
and  that  he  had  a  great  imbecility  of  mind.25    It  was  held :  that 


20  Dwight  Foster's  Lectures  on 
Equity  Pleadings,  MS.;  Eyre  v. 
Potter  15  How.  42,  56,  14  L.  ed. 
592,  598;  Britton  v.  Brewster,  2 
Fed.  160;  French  v.  Shoemaker.  14 
Wall.  314,  335,  20  L.  ed.  852,  857; 
Fisher  v.  Boody,  1  Curt,  206;  Hoyt 
v.  Hoyt,  27  X.  J.  Eq.  399;  Wilde  v. 
Gibson,  1  PI.  of  L.  Cases,  605 ;  Hick- 
son  v.  Lombard,  L.  R.  1  H.  of  L. 
326;  Thomson  v.  Eastwood,  L.  R.  2 
App.  Cases,  215:  Price  v.  Berring- 
ton,  2  Macn.  &  G.  486,  498;  Dashiell 
v.  Grosvenor,  C.  C.  A.,  27  L.R.A.  67, 
66  Fed.  334;  Grosvenor  v.  Dashiell, 
62  Fed.  584;  Brown  v.  Davis.  C.  C. 
A.,  62  Fed.  519;  Hendryx  v.  Perkins, 


C.  C.  A.,  114  Fed.  801.  See  Chicago, 
B.  &  Q.  R.  R.  Co.  v.  Babcock,  204 
U.  S.  585,  593,  51  L.  ed.  636,  638. 

2lBurk  v.  Johnson,  C.  C.  A.,  146 
Fed.  209. 

22  Hendryx  v.  Perkins,  C.  C.  A., 
114  Fed.  801. 

23  Wasatch  Min.  Co.  v.  Creston 
Min.  Co.,  148  U.  S.  293,  37  L.  ed. 
454. 

24  Williams  v.  U.  S.,  138  U.  S. 
514.  517,  34  L.  ed.  1026,  1028;  U.  S. 
v  Mills,  C.  C.  A.,  190  Fed.  513, 
515. 

25  Story's  Eq.  PI.,  §  254;  Bennet 
v.  Vade,  2  Atk.  325:  Coiton  v.  Rpss, 
2    Paige     (N.    Y.)     396;    Lloyd    v. 


490  BILLS  IN  EQUITY.  [§    139 

a  suit  to  enjoin  a  railroad  company  from  granting  rebates  to 
favored  shippers,  under  the  Elkins  act  of  February  19,  1903, 
could  not  be  sustained  under  the  statute  of  July  2,  1890,  for- 
bidding combinations  and  monopolies  in  restraint  of  commerce 
between  the  States.26 

§  139.  Multifariousness  or  misjoinder.  In  General. 
The  Equity  Kules  of  1912  provide:  "The  plaintiff  may  join 
in  one  bill  as  many  causes  of  action,  cognizable  in  equity,  as 
he  may  have  against  the  defendant.  But  when  there  are  more 
than  one  plaintiff,  the  causes  of  action  joined  must  be  joint,  and 
if  there  be  more  than  one  defendant  the  liability  must  be  one 
asserted  against  all  of  the  material  defendants,  or  sufficient 
grounds  must  appear  for  uniting  the  causes  of  action  in  order 
to  promote  the  convenient  administration  of  justice.  If  it 
appear  that  any  such  causes  of  action  cannot  be  conveniently 
disposed  of  together,  the  court  may  order  separate  trials."  *  To 
what  extent  this  modifies  the  previous  practice  has  not  yet  been 
determined.  The  former  rule  was  as  follows :  A  bill  must  in  >t 
be  multifarious.  Multifariousness  consists  in  the  joinder  of  two 
or  more  distinct  and  unconnected  grounds  for  equitable  relief, 
each  of  which  might  be  the  foundation  for  a  separate  bill.  This 
may  occur  in  three  ways, — by  a  misjoinder  of  plaintiffs,  by  a 
misjoinder  of  defendants,  and  by  a  misjoinder  of  grounds  fur 
equitable  relief  held  by  and  against  the  same  parties.2  "To  lay 
down  any  rule  applicable  universally,  or  to  say  what  constitutes 
multifariousness  as  an  abstract  proposition  is,  upon  the  author- 
ities, utterly  impossible.  The  cases  upon  the  subject  are  ex- 
tremely various,  and  the  court  in  deciding  them  seems  to  have 
considered  what  was  convenient  in  particular  circumstances, 
rather  than  to  have  attempted  to  lay  down  any  absolute  rule."  3 
"The  only  way  of  reconciling  the  authorities  upon  the  subject 
is  by  adverting  to  the  fact  that,  although  the  books  speak  gener- 
ally of  demurrers  for  multifariousness,  yet  in  truth  such  demur- 
rers may  be  divided  into  two  distinct  kinds.    Frequently  the  ob- 

Brewster,    4    Paige     (X.    Y.)     537;  §139.     1  Eq.  Rule  26. 

Mott    v.   Mott,   49    N.    J.   Eq.    177;  2  Calvert  on  Parties,  Book  I,  Ch. 

s.  c,  22  Atl.  997.     But  see  Jackson  vii. 

v.    Rowell,    87    Ala.    6S5,    4    L.R.A.  3  Lord  (Tottenham  in  Campbell  v. 

637;  supra,  §  137.  Maekay,  1   M.  &  Cr.  603,  618. 

26  r.  S.  v.  Atclimson,  T.  &  S.  F. 
Rv.  Co.  142  Fed.  176. 


§   139] 


DOUBLE   ASPECT. 


491 


jection  raised  though  termed  multifariousness,  is  in  fact  more 
properly  misjoinder;  that  is  to  say,  the  cases  or  claims  united  in 
the  bill  are  so  different  a  character  that  the  court  will  not  per- 
mit them  to  be  litigated  in  one  record.  It  may  be  that  the  plain- 
tiffs and  defendants  are  parties  to  the  whole  of  the  transac- 
tions which  form  the  subject  of  the  suit,  and  nevertheless  these 
transactions  may  be  so  dissimilar  that  the  court  will  not  allow 
them  to  be  joined  together,  but  will  require  distinct  records. 
But  what  is  more  familiarly  understood  by  the  term  'multi- 
fariousness' as  applied  to  a  bill,  is  where  a  party  is  able  to  say 
he  is  brought  as  a  defendant  upon  a  record,  Avith  a  large  portion 
of  which,  and  of  the  case  made  by  which  he  has  no  connection 
whatever."4  There  is,  however,  little  practicable  good  to  be 
obtained  from  a  maintenance  of  this  distinction  except  as  a 
means  of  elucidating  some  of  the  expressions  in  the  earlier  au- 
thorities.5 "The  decisions  on  this  subject  are  contradictory 
and  unsatisfactory.  The  common-sense  rule  in  such  cases  is 
that  an  individual  shall  not  be  called  to  maintain  his  title  or 
shall  not  assert  it  in  connection  with  others  to  which  it  has  no 
analogy,  and  in  the  investigation  of  which  the  costs  and  com- 
plexity of  the  case  will  be  increased."  6     It  has  been  said  that 


4  Lord  Cottenham  in  Campbell  v. 
Mackay,  1  M.  &  Cr.  603,  018.  Ap- 
proved in  Shields  v.  Thomas,  18 
How.  233,   259,   15  L.  ed.  368,  370. 

5  See  Calvert  on  Parties.  Book  I, 
oh.   vii. 

6  McLean,  J.,  in  Turner  v.  Am. 
Baptist  Missionary  Union,  5  Mc- 
Lean, 344,  349. 

The  following  rule  laid  down  by 
Mr.  Gibson  in  his  Suits  in  Chan- 
cery, section  292,  was  quoted  with 
approval  by  Judge  Jenkins  in  Von 
Auw  v.  Chicago  T.  &  F.  G.  Co.,  69 
Fed.  448:  "To  make  a  bill  demur- 
rable for  multifariousness  it  must 
contain  all  of  the  following  char- 
acteristics. First,  two  or  more 
causes  of  action  must  be  joined 
against  two  or  more  defendants; 
second,  these  causes  of  action 
must    have    no    connection    or    com- 


mon origin,  but  must  be  separate 
and  independent;  third,  the  evi- 
dence pertinent  to  one  or  more  of 
the  causes  must  be  wholly  imper- 
tinent as  to  the  other  or  others; 
fourth,  one  or  more  of  the  causes 
of  action  must  be  capable  of  being 
fully  determined  without  bringing 
in  other  cause  or  causes  to  adjust 
any  of  the  legal  or  equitable  rights 
of  the  parties;  fifth,  the  decree  as 
to  one  or  more  of  the  separate*  or 
independent  causes  must  be  conclu- 
sive against  one  or  more  of  the  de- 
fendants, and  the  decree  proper  as 
to  the  other  cause  or  causes,  must 
be  conclusive  against  the  other  de- 
fendants or  defendant;  sixth,  the 
relief  proper  against  one  or  more  of 
the  defendants  in  one  or  more  of  the 
separate  and  independent  causes  of 
action  must  be  distinct  from  the  re- 


492 


BILLS  IN  EQUITY. 


[§  140 


the  fact  that  separate  decrees  may  be  requisite  in  order  to  afford 
complete  relief  does  not  necessarily  make  the  bill  multifarious.7 
§  140.  Multifariousness  by  misjoinder  of  plaintiffs. 
The  Equity  Rules  of  1912  provide:  "When  there  is  more  than 
one  plaintiff,  the  causes  of  action  joined  must  be  joint,  and  if 
there  be  more  than  one  defendant  the  liability  must  be  one  as- 
serted against  all  of  the  material  defendants,  or  sufficient 
grounds  must  appear  for  uniting  the  causes  of  action  in  order 
to  promote  the  convenient  administration  of  justice."  x  It  has 
not  yet  been  decided  whether  this  last  clause  modifies  the  whole 
sentence  or  only  that  which  refers  to  the  joinder  of  defendants. 
It  consequently  is  uncertain  whether  it  affects  so  much  of  the 
former  practice  as  permitted  a  joinder  of  plaintiffs,  who  had  a 
common  interest  in  the  relief  sought.  In  England,  a  party  can- 
not now  unite  in  the  same  suit  claims  which  ho  holds  in  two  dif- 
ferent capacities  unless  connected.2  In  Xew  York,  it  was  held, 
where  the  plaintiff  prayed  the  same  relief  both  individually  and 
as  executor  upon  the  same  cause  of  action,  which  appeared  upon 
the  face  of  his  complaint  to  be  for  the  benefit  of  the  testator's  es- 
tate, that  there  was  no  misjoinder  of  parties  or  of  causes  of 
action.3  Xo  persons  can  unite  as  complainants  in  a  bill  in  equity 
unless  they  have  a  joint  or  common  interest  in  obtaining  the 
same  relief.  Thus,  if  one  of  them  has  no  interest  in  the  relief 
claimed,  the  bill  is  demurrable.5  Those  who  claim  the  return 
of  money  paid  by  them  severally  on  distinct  promissory  notes 
cannot  join  their  claims  in  the  same  bill ; 6  nor  can  several  cred- 


lief  proper  against  the  other  defend- 
ant or  defendants  of  the  other 
cause  of  action;  seventh,  the  satis- 
faction of  the  proper  decree  by  any 
of  the  defendants  to  the  extent  of 
Iiis-  alleged  liability  on  any  one  or 
inore  of  the  distinct  causes  of  ac- 
tion must  not  be  a  satisfaction  of  a 
proper  decree  against  the  other  de- 
dendant  or  defendants,  or  the  other 
cause  or  causes  of  action;  and 
eighth,  the  multifariousness  must  be 
apparent,  and  the  misjoinder  of  dis- 
tinct causes  of  action  manifest." 

T-Nea]    v.    Rat  bell,    70    Md.    592; 
S.   C   17    Atl.   566. 


§  140.     lEq.  Rule  26. 

2  Order   xvm. 

3  Moss  v.  Coehn.  158  N.  Y.  240. 
See  Metropolitan  Trust  Co.  v.  Co- 
lumbus, S.  &  H.  R.  Co.,  93  Fed. 
689. 

4  Story's  Eq.  PL,  §  279;  Calvert 
on  Parties   ('2d  ed.),  105,  110. 

5  Walker  v.  Powers,  104  U.  S.  245, 
249,  26  L.  ed.  729,  731;  Doggett  v. 
Railroad  Co.,  99  U.  S.  72,  25  L. 
ed.  301.  Contra,  Havens  v.  Burns, 
188   Fed.   441. 

6  Yeaton  v.  Lenox,  8  Pet.  123,  S 
L.  ed.  8SQ- 


140] 


MISJOINDER   OF    PLAINTIFFS. 


493 


itors  claiming  under  several  obligations  unite  in  a  suit  to  at- 
tach the  -debts  of  an  absent  debtor.7  Persons  who  have  been 
defrauded  of  stock  in  a  corporation  by  the  same  parties  who 
promised  it  to  them  before  the  organization  of  the  corporation 
cannot  join  in  a  bill  to  compel  the  issue  of  the  stock  to  each  of 
them.8  Persons  who  have  been  separately  indicted  for  similar 
acts  committed  while  acting  as  agents  for  the  same  principal 
cannot  join  in  a  bill  to  enjoin  the  further 'prosecution  of  the 
indictments.9  Put  in  a  bill  to  compel  specific  performance 
of  a  decree  in  a  former  suit,  all  the  complainants  in  the  first  suit 
may  join  as  plaintiffs,  though  the  decree  sought  to  be  enforced 
orders  the  payment  of  specific  sums  severally  to  each  of  them.10 
Several  fire  insurance  companies  were  allowed  to  unite  in  a 
bill  to  set  aside  one  award  against  them  upon  an  arbitration  of 
claims  by  the  same  person  under  several  policies ; n  and  to  en- 
join the  prosecution  of  separate  actions  at  law,  brought  by  the 
same  plaintiffs  against  them  and  other  insurance  companies  to 
recover  upon  policies  on  the  same  property,  which  provided  for 
a  proportional  liability,  where  the  same  defense  had  been  inter- 
posed to  each  action,12  but  not  where  they  had  issued  concur- 
rent policies  upon  the  same  policy,  the  liability  of  each  being 
independent  of  that  of  the  rest.13  Plaintiffs  with  conflicting 
interests  cannot  so  join.14    Such  are,  in  a  suit  for  the  construc- 


7  Ibid.  But  see  Norris  v.  Hassler, 
22  Fed.  401 ;  Langdon  v.  Branch,  37 
Fed.   449. 

8  Summerlin  v.  Fronterizac  S.  M. 
&  M.  Co.,  41   Fed.  249. 

9  Woolstein  v.  Welsh,  42  Fed.  566. 

10  Shields  v.  Thomas,  18  How.  253, 
15  L.  ed.  368.  It  has  been  held 
that  this  rule  does  not  extend  to  a 
bill  for  specific  performance  of  a 
contract  to  convey  real  estate  in 
which  the  complainants  hold  dis- 
tinct rights  to  separate  lots.  Mar- 
selis  v.  Morris  &  L.  Co.,  1  N.  J. 
Eq.  31,   39. 

11  Hartford  Fire  Ins.  Co.  v.  Bon- 
ner, 11   L.R.A.  623,  44  Fed.  151. 

18  Virginia-Carolina  Chem.  Co.  v. 
Home  Ins.  Co.,  C.  C.  A.,  113  Fed.  1. 


13  Rochester  German  Ins.  Co.  v. 
Schmidt,  C.  C.  A.,   175   Fed.  720. 

"Walker  v.  Powers,  104  U.  S. 
245,  26  L.  ed.  729;  Saumarez,  v. 
Saumarez,  4  Mylne  &  Cr  331,  336: 
Parsons  v.  Lyman,  4  Blatchf.  C.  C. 
432 ;  Bell  v.  Cureton,  2  M.  &  K.  503 ; 
Stebbins  v.  St.  Anne,  116  U.  S.  386, 
29  L.  ed.  667;  Brown  v.  Bedford 
City  L.  &  I.  Co.  91  Va.  31,  20  S.  E. 
968.  A  bill  was  held  multifarious 
where  all  the  complainants  sought 
as  taxpayers  to  enjoin  a  defendant 
town  from  purchasing  the  plant  of 
a  defendant  waterworks  company, 
and  one  complainant  further  sought, 
as  a  stockholder  in  that  company, 
to  enjoin  the  sale  on  the  ground  of 
inadequacy    of    price.      Peabody    v. 


494 


BILLS  IN   EQUITY. 


[§  i±o 


tion  of  a  will,  persons,  each  of  whom  is  interested  in  having 
a  different  construction  put  upon  it.15  Xor  can  two  join  in  a 
bill  to  set  aside  a  fraudulent  conveyance  of  land,  of  whom  one 
claims  the  land  as  a  creditor  of  the  person  who  has  made  the 
conveyance,  and  the  other  as  the  purchaser  of  the  land  upon  a 
sheriff's  sale  to  satisfy  a  judgment  held  by  him.18  So,  a  lull 
was  held  to  be  multifarious  which  sought  to  enforce  a  trust 
in  land  and  also  to' give  the  title  to  one  of  the  complainants  to 
the  same  property.17  But  the  interests  of  the  complainants 
need  not  be  co-extensive.  Thus,  a  tenant  for  life  and  the  re- 
maindermen of  an  estate,  either  legal  or  equitable,  may  join 
in  a  suit  to  protect  the  estate.18  Beneficiaries  of  a  trust  fund 
may  join  in  a  suit  for  an  accounting,  although  their  interests  are 
several.19  The  buyer  of  a  secret  formula  and  the  vendor  who 
sold  the  same  with  a  guarantee,  may  join  in  a  suit  to  enjoin  the 
unlaAvful  use  of  the  same.20  Although  usually  there  must  be 
some  privity  between  the  complainants  in  a  bill,  and  a  common 
interest  in  the  questions  involved  cannot  alone  lay  the  founda- 
tion for  the  joinder  of  parties;21  yet  in  certain  cases  those  be- 
tween whom  there  was  no  privity  were  allowed  to  sue  together 
when  they  sought  to  avert  an  injury  which  would  affect  them  all 
alike.22  Thus  persons  with  a  common  interest  in  trademarks 
and  labels,  as  owners  and  selling  agents  of  the  goods  upon  which 
they  were  affixed,  might  join  in  a  suit  to  prevent  their  imitation.23 
Several  tenants  or  parishioners  might  unite  in  a  bill  of  peace 
seeking  to  dispose  of  a  disputed  right  claimed  against  them  by 
the  lord  of  the  manor24  or  the  parson  of  the  parish.25     And  the 


Westerly  Waterworks,  20  R.  I.  176, 
37  Atl.  807. 

15  Parsons  v.  Lyman.  4  Blatclif. 
('.  C.  432;  Saumarez  v.  Sanmarez,  4 
M.  &   Cr.  331,  336. 

16  Walker  v.  Powers,  104  U.  S. 
■245,  26  L.  ed.  729. 

"Leslie  v.  Leslie,  S4  Fed.  70. 

18  Story's  Eq.  PI..  §  270a ;  Bucke- 
ridge  v.  Glasse,  1  Cr.  &  Phill,  126; 
Calvert  on  Parties  (2d  ed.).  99; 
Rainey  v.  Herbert,  C.  C.  A.,  55  Fed. 
443. 

19  Watson  v.  National  Life  &  Tr. 
Co.,  C.  C.  A.,  162  Fed.  7. 


20  James  B.  Sipe  &  Co.  v.  Colum- 
bia   Refining  Co..    171    Fed.  295. 

21  Rochester  German  Ins.  Co.  V. 
Schmidt,  C.  C.  A.,  175  Fed.  720. 

22  See  §  110  supra. 

23  Jewish  Colonization  Ass'n  v. 
Solomon,  125  Fed.  994. 

24Annon.,  1  Chan.  Cas.  269; 
Smith  v.  Earl  Brownlow,  L.  R.  9 
Eq.   241. 

25  Pudge  v.  Hopkins,  2  Eq.  Cas. 
Abr.  70. 


140] 


MISJOINDER   OF    PLAINTIFFS. 


49; 


owners  of  several  lots  of  land  claiming  under  a  common  source 
of  title  might  unite  in  a  bill  of  peace  against  several  other  claim- 
ants to  the  same  lots,  who  also  relied  upon  a  common  source  of 
title  adverse  to  that  of  the  complainant.26  Several  owners  of  dif- 
ferent lots  of  land  who  have  a  common  interest  in  an  easement 
derived  from  the  same  source  may  unite  in  a  suit  to  enjoin  the 
obstruction  of  the  easement.27  Several  claimants  in  possession 
of  several  parcels  of  land  whose  rights  depend  upon  the  same 
question  of  fact  or  law  may  unite  in  a  bill  of  peace  against  the 
same  defendant  who  claims  title  to  all  the  land  by  reason  of 
the  same  disputed  facts  or  legal  proposition.28  The  owner  of 
several  mines  might  join  in  a  suit  to  enjoin  different  assayers 
from  buying  ore  from  laborers  employed  by  the  complainants, 
although  there  was  no  concert  of  action  among  the  defendants  in 
their  various  purchases.29  to  enjoin  smelters  from  injuring  their 
crops.30  The  owners  of  adjacent  property  might  join  in  a  bill 
in  equity  to  enjoin  a  defendant  from  erecting  a  livery- 
stable,31  an  unauthorized  street  railroad  32  or  other  nuisance  in 
their  vicinity.  But  another  case  holds  that  different  persons, 
each  of  whom  will  suffer  a  distinct  injury  from  the  levy  of  a 


26  Crews  v.  Burcham,  1  Black,  352 ; 
Prentice  v.  Duluth  S.  &  F.  Co.,  C. 
C.  A.,  58  Fed.  437.  It  has  been 
held  that  the  pastor  and  some  of 
the  members  of  a  religious  associa- 
tion may  unite  in  a  suit  to  recover 
possession  of  the  church  and  par- 
sonage, to  enjoin  the  trustees  and 
the  remainder  of  the  congregation 
from  interfering  with  each  in  his 
ecclesiastical  rights;  and  also  to 
compel  an  accounting  for  collections 
taken  up,  which  are  payable  to  the 
elder  and  pastor  as  salary.  Fuchs 
v.  Meisel,  113  Mich.  559;  s.  c,  60 
N.  W.  R.  773.  But  see  Douglas  v. 
Boardman,  113  Mich.  618,  s.  c,  71 
N.   W.   1100. 

27  Norton  v.  Colusa  Parrot  Min. 
&  Smelting  Co.,  167  Fed.  202. 
Springer  v.  Lawrence,  47  N.  J. 
Eq.  461.  s.  c.  21  Atl.  41.  See  Union 
Mill  &  M.  Co.  v.  Dangberg,  81  Fed. 


73;  Osborne  v.  Wisconsin  Cent.  R. 
Co.,  43  Fed.  824;  Cent.  Pac.  R.  Co. 
v.  Dyer,  1  Saw.  641;  infra,  §  141. 
Flint  v.  Russell,  5  Dill.  151;  Par- 
ker v.  Nightingale,  6  Allen  (Mass.), 
341,  80  Am.  Dec.  632.  Contra,  Hud- 
son v.  Madison,  12  Simons,  416. 

28  Hoist  v.  Savannah  El.  Co.,  131 
Fed.  931  :  Rafferty  v.  Central  Tr. 
Co.  147  Pa.  579,  30  Am.  St.  Rep. 
763,    23    Atl.    884. 

29Goldfield  Consol.  Mines  Co.  v. 
Richardson,  194  Fed.  198. 

30  Am.  Smelting  &  Refining  Co.  v. 
Godfrey,  C.  C.  A.,  158  Fed.  225,  89 
C.  C.  A.  139. 

31  Cutting  v..  Gilbert,  5  Blatchf. 
C.  C.  259.  See,  however,  Central 
Pac.  R.  Co.  v.  Dyer,  1  Saw.  641 ; 
Union  Pac.  R.  Co.  v.  McShane,  3 
Dill.  303;  infra,  §  141. 

32  Allen  v.  Fairbanks,  45  Fed.  445. 


496 


BILLS   IN   EQUITY. 


[§    141 


tax,  cannot  unite  in  a  bill  to  enjoin  its  levy  on  account  of  its 
alleged  unconstitutionality.33  Several  stockholders  who  had 
been  compelled  to  pay  corporate  debts  were  allowed  to  join  in 
a  bill  against  another  stockholder  to  compel  him  to  contribute 
his  proportion,  and  several  persons  who  had  been  induced  by 
identical  fraudulent  misrepresentations  to  subscribe  to  stock 
in  a  corporation  were  allowed  in  Virginia  to  join  in  a  suit  to 
cancel  their  subscriptions.34  It  has  been  held :  that  several  de- 
positors may  join  in  a  suit  against  directors  of  their  common 
bank,  for  loss  through  improper  loans  of  the  bank  funds.35  A 
stockholder  might  sue  on  his  own  behalf  and  on  behalf  of  his 
corporation,  in  the  same  bill,  when  the  same  facts  sustained  the 
cause  of  action  on  behalf  of  both,  such  as  an  attempt  to  make  a 
fraudulent  consolidation  between  his  company  and  another  on 
terms  unduly  unfavorable  to  his  corporation.36  But,  it  has  * 
been  held,  that  a  suit  by  a  stockholder,  who  is  indebted  to  a 
building  and  loan  association,  to  cancel  his  loan  contract  for 
fraud,  usury  and  incapacity  of  the  association  to  do  business 
within  the  State,  who  also  prays,  on  behalf  of  himself  and  all 
other  stockholders,  to  have  a  receiver  of  the  property  of  the  cor- 
poration within  the  State  appointed  upon  allegations  of  mis- 
management and  misappropriation  by  its  officers,  is  multi- 
farious ; 37  that  so  is  a  suit  by  a  corporation  for  a  breach  of 
contract,  coupled  with  claims  by  individuals,  to  compel  the  de- 
livery of  stock  of  the  same  defendant.38  It  has  been  said  that 
the  fact  that  separate  decrees  may  be  requisite  in  order  to  afford 
complete  relief  does  not  necessarily  make  the  bill  multifarious.39 
§  141.  Multifariousness  by  misjoinder  of  defendants. 
The  Equity  Rules  of  1912  provide:     "If  there  be  more  than 


33  Rader  v.  Bristol  Land  Co.  94 
Va.  706.  27  S.  E.  590. 

34  Foster  v.  Abingdon,  SS  Fed. 
004:  Solomon  v.  Bates.  118  N.  C. 
311,  54  Am.  St.  Rep.  725,  24  S.  E. 
478. 

35  Boyd  v.  Schneider,  C.  C.  A.,  13] 
Fed.  223. 

Several  stockholders  may  unite  in 
a  suit  to  enjoin  the  directors  of  a 
corporation  from  issuing  new  stock 
without  Lri\itiir  the  complainants  a 
n  a-onable  opportunity  to  take  their 


proportionate  share  and  from  allow- 
ing any  holder  thereof  to  vote  at  a 
corporate  meeting.  Snelling  v. 
Richard,  10G  Fed.  035. 

36  Jones  v.  Missouri-Edison  El. 
Co.,  C.  C!  A.,  144  Fed.  705. 

37  Emmons  v.  National  Mut.  Bldg. 
&  Loan  Ass'n  of  Xew  York,  C.  C.  A., 
135    Fed.    689. 

38  Backus  v.  Brooks,  189  Fed.  922. 
39Xeal    v.    Rathell,    70    Bid.    592; 

S.  c,  17  Atl.  506. 


141] 


MISJOINDER    OF    DEFENDANTS. 


407 


one  defendant  the  liability  must  be  one  asserted  against  all  of 
the  material  defendants,  or  sufficient  grounds  must  appear  for 
uniting  the  causes  of  action  in  order  to  promote  the  convenient 
administration  of  justice."  1  This  seems  to  broaden  the  former 
rule,  which  was  as  follows:  Xo  persons  could  be  joined  as  de- 
fendants to  a  bill  in  equity  who  had  not  a  joint  or  common  in- 
terest in  opposing  the  relief  prayed.2  Different  relief  mighty 
however,  be  obtained  against  different  defendants  when  the  bill 
sought  to  prevent  or  annul  the  effect  of  acts  in  pursuance  of  a 
common  scheme,  or  so  connected  with  each  other  as  to  form  part 
of  the  same  transaction.3  The  rule  was  thus  stated  by  Sir.  John 
Leach:  "In  order  to  determine  whether  a  suit  is  multifarious, 
or,  in  other  words,  contains  distinct  matters,  the  inquiry  is  not, 
as  this  defendant  supposes,  whether  each  defendant  is  connected 
with  every  branch  of  the  cause,  but  whether  the  plaintiff's  bill 
seeks  relief  in  respect  of  matters  which  are  in  their  nature  separ- 
ate and  distinct.  If  the  object  of  the  suit  be  single,  but  it  hap- 
pens that  different  persons  have  separate  interests  in  distinct 
questions  which  arise  out  of  that  single  object,  it  necessarily 
follows  that  such  different  persons  must  be  brought  before  the 
court,  in  order  that  the  suit  may  conclude  the  whole  object,"4 
"The  entirety  of  the  case  against  one  defendant  constitutes  the 
connecting  link."5  But  a  bill  is  multifarious,  when  the  charge 
against  one  is  in  no  way  connected  with  those  against  other  de- 
fendants.6    A  bill  is  not  multifarious  which  is  filed  by  a  cred- 


§   141.     lEq.  Rule  26. 

2  Calvert  on  Parties,  Book  T,  eh. 
vii;  U.  S.  v.  Alexander,  4  Craneli, 
C.  C.  311. 

3  Calvert  on  Parties,  Book  1.  eh. 
vii:  Manners  v.  Rowley,  10  Simons, 
470. 

4  Salvidge  v.  Hyde,  5  Maddock, 
138,  140. 

5  Calvert  on  Parties  (2d  ed)..  08, 
rruoting  Sir  John  Leach  in  Turner 
v.  Robinson.  1  Sim.  &  S.  313;  and 
Lord  Cottenliam  in  Attorney  Gen- 
eral v.  Corporation  of  Poole.  4  M. 
'&  Cr.  17,  31:  Halsey  v.  Goddard, 
86  Fed.  25;  Porter  v.  Robinson  2 
Va.  Pec.  183,  22  S.  E.  843;  Crick- 
Fed.    Prac.  Vol.  I.— 32. 


ard  v.  Crouch's  Adm'rs,  41  W.  Va. 
503:  s.  c,  23  S.  E.  727;  Middle- 
ton  Sav.  Bank  v.  Baeharach,  46 
Conn.  513.  But  see  Washington 
City  Sav.  Bank  v.  Thornton,  83 
Va.  157:  Buffalo  v.  Town  of  Poca- 
hontas. 85  Va.  222;  Sylvester  v. 
Boyd.  166  Mass.  445:  s.  c.,  44  X.  E. 
343;  Staude  v.  Keck.  02  Va.  544; 
s.  c,  24  S.  E.  227. 

8  Wood  v.  Dummer.  3  Mason.  308; 
West  v.  Randall.  2  Mason.  181,  200; 
Lewarne  v.  Mexican  int.  T.  Co..  38 
Fed-  620:  Seales  v.  Pheiffer,  77  Ala. 
278:  Sumter  County  v.  Mitchell,  85 
Ala.  313;  Van  Bouten  v.  Van  Wink- 
le. 40   X.  J.   Eq.  380. 


498 


BILLS    IN    EQUITY. 


[§    Ul 


itor  on  behalf  of  himself  and  others  similarly  situated:  to  wind 
up  the  affairs  of  the  bank,  to  determine  the  amount  due  him,  to 
ascertain  the  amounts  due  to  other  creditors,  to  distribute  the 
assets  among  them,  and  to  enforce  the  liability  of  the  stockhold- 
ers, who  are  made  defendants  with  the  bank.7     Bills  were  held 
to  be  multifarious  when  filed  by  receivers  against  several  stock- 
holders to  enforce  a  statutory  liability  to  creditors,8  or  to  col- 
lect an  assessment  made  in  another  proceeding,  to  which  the 
defendants  were  not  parties.9     But  a  receiver's  bill  to  collect 
the  amount  due  by  subscriptions  to  stock  was  held,  not  to  be 
multifarious  when  filed  against  several  stockholders,  who  had  a 
common  defense  depending  upon  the  same  questions  of  fact  and 
law.10     A  bill  is  not  multifarious  as  regards  stockholders,  who 
have  a  common  defense,   when  filed  to  collect  dividends  paid 
while  the  corporation  was  insolvent.11     Xor  a  bill  by  a  receiver 
against  a  number  of  bank  directors,  to  recover  money  lost  by 
the  bank  through  their  alleged  misconduct.12     Xor  in  Xew  Jer- 
sey a  stockholder's  bill  to  recover  damages  for  the  negligence  of 
the  officers  and  directors  of  a  bank  for  a  period  of  time  during 
part  of  which  some  of  the  defendants  were  not  in  office.13     Xor 


7  Richmond  v.  Irons,  121  U.  S. 
27.  50.  30  L.  ed.  864,  871  ;  Wyman  v. 
Wallace.  201  U.  S.  230,  242,  .30  L. 
cd.    738,    741. 

8  Hale  v.  Allinson,  188  U.  S.  56. 
47    L.  ed.   380. 

9  Fidelity  Tr.  &  Safe  Dep.  Co.  v. 
Archer.    C.    C.   A.,    179    Fed.    32. 

10  Wyman  v.  Bowman,  C.  C.  A., 
127    Fed.    257. 

HHayden  v.  Thompson.  C.  ( '.  A.. 
71    Fed.  61);   reversing.  67   Fed.  273. 

12  Allen    v.    Luke.    141    Fed.    694. 

i?-  Ackerman  v.  Halsey.  37  X.  J. 
Eq.  356.  Contra,  under  the  X.  Y. 
Code,  People  v.  Eq.  L.  A.  S'y.,  124 
App.  D.  (X.  Y.)  714.  Bills  were 
held  to  l>e  multifarious  which  were 
filial  by  a  stockholder  to  enforce  the 
liability  to  the  corporation  of  one 
defendant  for  unpaid  stock,  his  joint 
liability  with  five  others  for  fraud 
against    the  creditors   of  the   corpo- 


ration, and  the  liability  of  these 
five  for  the  fraudulent  sale  of  cor- 
porate property  with  which  the 
first  defendant  was  not  connected. 
Holton  v.  Wallace,  66  Fed.  409. 
In  Missouri,  a  bill  by  a  creditor  of 
an  insolvent  corporation  to  collect 
unpaid  stock  subscriptions  and 
also  to  recover  from  one  of  the 
subscribers  for  his  conduct  as 
president  both  in  defrauding  the 
corporation  and  in  injuring  the 
individual  property  of  complain- 
ant. Montserratt  Coal  Co.  v.  John- 
son County  C.  M.  Co.,  141  Mo. 
149;  s.  c,  42  S.  W.  822.  By  a 
stockholder  who  complained  of 
other  stockholders  and  officers  for 
false  representations  which  in- 
duced him  to  buy  his  stock,  and 
against  the  corporation  for  a  dis- 
solution  and  an  accounting  because 
of    the    suspension    of    its    business 


141] 


MISJOINDER    OF    DEFENDANTS. 


490 


a  bill  against  two  depositaries  of  the  funds  of  an  insolvent  asso- 
ciation, the  proceeds  of  embezzlements  by  its  treasurer,  all  of 
which  were  of  the  same  character  and  grew  out  of  his  manipula- 
tion of  the  deposits,  in  some  of  which  transactions  it  was  alleged 
that  both  of  them  participated  and  were  jointly  liable;  when  it 
was  further  charged,  that  the  illegal  matters  were  so  interwoven 
that  an  accounting  was  necessary  of  all  the  different  accounts  of 
the  association  in  both  depositaries,  that  the  defendants  know- 
ingly participated  with  the  treasurer  in  the  misappropriation 
of  the  funds.14  Xor  one  by  the  holder  of  a  bond  secured  by  a 
lien  upon  the  property  of  a  corporation  against  both  the  cor- 
poration and  its  stockholders,  at  the  same  time  to  foreclose  his 
lien  and  to  compel  the  stockholders  to  pay  so  much  of  the  bal- 
ance of  their  subscriptions  to  the  stock  of  the  corporation  as  will 
suffice  for  the  payment  of  the  deficiency  after  the  foreclosure 
sale.15  Nor  one  by  a  mortgagee  of  water  works  to  foreclose  the 
mortgage,  and  to  compel  the  city  which  had  bought  the  property 
to  pay  hydrant,  rents  to  the  plaintiff  in  pursuance  of  the  contract 
granting  the  franchise.16  Xor  a  bill  by  a  city  bondholder  for 
an  accounting  by  his  obligor  and  by  the  county,  to  whom  assess- 
ments, upon  which  the  complainant  had  a  lien,  had  been  paid 


and  waste  of  the  corporate  funds. 
Watson  v.  U.  S.  Sugar  Ref.  Co.. 
C.  C.  A.,  08  Fed.  7G9.  In  Massa- 
chusetts, by  a  stockholder  against 
a  corporation  and  its  trustees  pray- 
ing for  a  return  of  money  advanced 
by  him  to  the  corporation  through 
the  fraud  of  the  individual  defend- 
ants, which  also  alleged  misappro- 
priation of  the  corporate  funds  and 
prayed  the  appointment  of  a  receiv- 
er, where  there  was  no  allegation 
that  the  corporation  had  no  funds 
to  repay  the  plaintiff,  and  the  re- 
ceivership was  not  sought  merely 
as  an  incident  to  the  principal  re- 
lief. Davis  v.  Peabody.  170  Mass. 
307;  s.  c,  40  X.  E.  750.  Tt  has 
been  held  that  claims  against  di- 
rectors and  stockholders  to  enforce 
different  liabilities  cannot  be  com- 
bined.     Cambridge    Waterworks    v. 


Somerville  D.  &  B.  Co.,  14  Gray 
(Mass.),  193;  Pope  v.  Leonard,  115 
Mass.  286;  Von  Auw  v.  Chicago  T. 
&  T.  G.  Co.,  70  Fed.  939.  But  they 
may  be  united  in  a  suit  to  enjoin 
them  from  taking  part  in  the  same 
fraudulent  transaction.  Jones  v. 
Missouri-Edison  El.  Co.,  C.  C.  A., 
144   Fed.  705. 

14  Fidelity  &  Deposit  Co.  of  Mary- 
land v.  Fidelity  Trust  Co.,  143  Fed. 
152. 

is  Marine  &  R.  P.  M.  &  Mfg.  Co. 
v.  Bradley,  105  U.  S.  175,  20  L.  ed. 
1034. 

16  Centerville  v.  Fidelity  Tr.  &  G'y 
Co.,  C.  C.  A.,  IIS  Fed'.  322.  In 
Massachusetts  a  stockholder  was  al- 
lowed to  file  a  bill  against  a  cor- 
poration and  an  officer  thereof  to  re- 
cover corporate  funds  misappro- 
priated by  the   officer  and   to  apply 


500 


BILLS    IN    EQUITY. 


C§  ill 


in  part.17  But  bills  were  held  to  be  multifarious  when  filed:  to 
foreclose  a  mortgage  on  a  gas  plant,  covering  all  moneys  "fur- 
nished and  hereafter  paid"  by  a  city  for  gas-light,  which  joined 
the  city  as  a  co-defendant  with  the  mortgagor,  and  prayed  for 
a  judgment  against  the  city  for  what  it  owed  the  mortgagor  for 
light ; 18  a  bill  to  foreclose  a  mortgage  by  a  corporation,  and  to 
recover  dividends  from  stockholders  paid  out  of  the  income  of 
the  mortgaged  property,19  a  bill  which  joined  a  prayer  for  the 
recovery  of  bonds  wrongfully  retained  by  one  defendant,  with 
a  prayer  for  relief  against  another  to  apply  assets  in  payment 
of  the  same,20  and'a  bondholders1  bill  to  enforce  a  lien  upon  a 
fund  in  the  possession  of  a  corporation  and  to  charge  the  direct- 
ors individually  for  payments  made  to  general  creditors.21  A  bill 
was  held  multifarious  which  sought  both  to  foreclose  a  mortgage 
and  to  restrain  another  defendant  from  asserting  a  claim  of  title 
adverse  to  both  mortgagee  and  mortgagor,22  at  least  when  such 
adverse  title  accrued  prior  to  the  mortgage;23  and  even,  it  has 
been  held  in  New  York,  when  it  subsequently  arose ; 24  and  a  bill 
to  foreclose  two  mortgages  by  the  same  mortgagor  upon  separate 
lots  owned  by  different  persons ;  25  or  to  foreclose  a  mortgage 
and  recover  damages  from  a  third  person  for  fraud  in  in- 
ducing the  loan  thereby  secured.26  But  a  party  claiming  a  lien 
upon  the  property  by  a  judgment  against  the  mortgagor  prior 
to  the  mortgage,  the  validity  of  which  lien  is  contested  by  the 
mortgagee,  may  be  joined  as  a  party  defendant  in  a  fore- 
closure suit.27     A  bill  may  be  filed  to  establish  a  lien,  with  a 


the  samp  to  a  dividend  due  the  com- 
plainant. Dunphy  v.  Traveller 
Newspaper   Ass'n,   14(i   Mass.  495, 

1?  Hayden  v.  Douglas  County, 
Wisconsin.  C.  C.  A..  170  Fed.  24. 

18  International  Tr.  Co.  V.  Car- 
tersville  I.  G.  &  W.  Co..  63  Fed. 
341,    346. 

19  New  Hamsphire  Saw  Bank  v. 
Ritchey,  C.  C.  A..   121    Fed.  956. 

20  Sawyer  v.  Atcliinson,  T.  &  S.  F. 
R.   Co..   C.  C.  A.,   129   Fed.  100. 

21  Cass  v.  Realty  Securities  Co., 
148  A  pp.  Div.   (N.  Y.)   96. 

22  Dial  v.  Reynolds.  96  U.  S.  340, 


24  L.  ed.  044.  But  see  California 
S.  D.  &  I.  Co.  v.  Cheney  El.  L. 
T.  &  P.  Co.,  56  Fed.  23V ;  Menden- 
hall  v.  Hall.  134  U.  S.  559,  568,  33 
L.   ed.    1012,    1015. 

23  Ibid. 

24  Erie  County  Saw  Bank  v. 
Schuster,  187  X.  T.  111. 

25  Eastern  B.  L.  Ass'n  v.  Denton, 
65  Fed.  569. 

26  Security  S.  &  L.  Ass'n  v.  Bu- 
chanan,   66    Fed.    799. 

27  Converse  v.  Michigan  Dairy 
Co.,  45  Fed.  18;  Copen  v.  Flesher, 
1    Bond,   440. 


141] 


MISJOINDER    OF    DEFENDANTS. 


501 


prayer  for  the  enforcement  of  the  individual  liability  of  some 
of  the  defendants,  Whose  indebtedness^  the  lien  secures.28  A 
bill  against  different  lienholders  on  the  same  property  to  have 
their  bills  settled  and  adjusted  is  not  multifarious.29  A  bill 
is  multifarious  which  seeks  to  obtain  a  transfer  of  land  from 
one  defendant,  and  to  restrain  another  from  asserting  a  con- 
flicting claim  to  the  same.30  So  is  a  bill  by  an  executor  to  settle 
the  conflicting  controversies  between  himself,  the  heirs  of  Ids 
testatrix,  the  heirs  of  her  husband  both  of  whom  dispute  be- 
quests under  her  will,  and  one  claiming  to  be  a  creditor  of 
her  estate.31  A  bill  is  not  multifarious,  which  prays  an  ac- 
counting by  one  defendant  under  contracts  made  between  him 
and  the  complainant,  and  joins  another  defendant,  who  is 
charged  to  be  a  secret  partner  with  the  former  in  these  transac- 
tions, and  who  has  received  part  of  the  profits  of  the  same3' 
or  prays  an  accounting  against  a  trustee  and  seeks  to  set  aside 
a  release  of  a  claim  of  the  estate  given  by  him  to  a  third  per- 
son joined  as  a  defendant ; 33  but  a  bill  was  held  to  be  multi- 


28  Ingersoll  v.  Coram,  127  Fed. 
418;  reversed  on  another  point,  C. 
C.  A. 

29  Rumbarger  v.  Yokum.  174  Fed. 
55. 

30  Copen  v.  Flesher,  1  Bond,  440. 

31  Haines  v.  Carpenter,  1  Woods, 
262.  The  following  bills  have  also 
been  held  to  be  multifarious :  A 
bill  by  a  creditor  of  an  estate  to 
enjoin  the  sale,  to  pay  debts,  of 
firm  lands  purchased  by  him  from 
the  heirs,  and  to  recover  from  the 
administrator  and  his  sureties  the 
amount  of  his  debt.  Banks  v. 
S  peers,  103  Ala.  436.  A  petition 
against  the  executors  of  the  peti- 
tioners' deceased  father  and  against 
three  successive  guardians  of  the 
petitioners  themselves,  praying  an 
account  by  the  defendants  of  their 
respective  trusts  and  waiving  dis- 
covery. Cornwell  Mfg.  Co.  v.  Swift, 
SO  Mich.  503;  s.  c,  50  X.  W.  1001. 
A  bill  to  enforce  a  claim  for  devas- 
tavit   against    the    personal    repre- 


sentatives of  some  of  the  sureties 
upon  an  administrator's  bond,  and 
for  a  settlement  of  the  estate,  which 
also  sought  to  enforce  against  the 
representatives  of  the  other  sureties, 
in  their  individual  capacities,  the 
personal  penalty  for  failure  to  give 
the  notice  to  creditors  required  by 
law.  Page  v.  Bartlett,  101  Ala.  193. 
See  also  Cocks  v.  Varney.  42  X.  J. 
Eq.  514;  Henninger  v.  Heald.  51  X. 
J.  Eq.  74;  Bullock  v.  Knox.  96  Ala. 
195;  Dickerson  v.  YVinslow.  97  Ala. 
491;  Smith  v.  Smith,  102  Ala.  516: 
Bolles  v.  Bolles,  44  X.  J.  Eq.  3S5, 
14  Atl.  593;  Wells  v.  S.  &  P.  Guano 
Co.,  S9  Va.  708;  Torrent  v.  Ham- 
ilton, 95  Mich.  159;  Ashley  v.  City 
of  Little  Rock,   56   Ark.   391. 

32  McMullen  Lumber  Co.  v.  Stroth- 
er,  C.  C.  A.,  136  Fed.  295. 

33  Pulver  v.  Leonard.  176  Fed. 
586,  590.  See  Payne  v.  Hook,  7 
Wall.  42.1,  433,  19  L.  ed.  260.  But 
bills  were  held  not  m/ultifaripus 
against    an    administrator   de    bonis 


502 


BILLS    IN    EQUITY. 


[§    1« 


farious  which  joined  with  the  executors  and  legatees  under  a 
will  that  it  prayed  to  have  set  aside,  another  defendant  who  had 
a  deed. from  the  testator  which  it  prayed  should  he  cancelled.34 
Xor  a  bill  to  set  aside  transactions  which  form  a  series  of  acts 
connected  with  the  same  fraudulent  design.85     For  example: 
creditors'  bills  to  reach  property  fraudulently  transferred  to 
different  corporations,  the  stock  in  which  is  owned  and  con- 
trolled   by    the    judgment    debtor.36    and,    to    reach    property, 
different '  parts    of  "which    have    been    sold    to    several    de- 
fendants,37 were  held  not  to  be  multifarious;  but  where,  in  the 
same  case,   the  complainant  had  obtained  judgments   against 
different  defendants,  it  was  held  that  he  could  not  join  in  the 
same  bill  pravers  to  set  aside  as  fraudulent  several  conveyances 
made  by  them  of  different  property.39     So  where  a  bill  filed  by 
an  assignee  in  bankruptcy   against   all   the   incumbrancers  of 
his  assignor's  estate,  some  but  not  all  of  whom  had  liens  upon 
the  same  property,  to  set  aside  their  liens  as  fraudulent,  and 
to    have    the    property    sold    for    the    common    benefit    of    the 
creditors ; 40  a  bill  filed  by  the  beneficiary  under  several  deeds 
of  trust,  some  upon  different  parts  of  the  same  property,  and 


non,  the  administrator  of  his  prede- 
cessor   and   the   holder    of   the    only 
claim    against    the    estate,    for    the 
purpose  of  completing  the  adminis- 
tration   and    disallowing    the    claim 
(Deans  v.  Wilcoxon.  25  Fla.  980)  ; 
by   heirs   against   executors  under  a 
will,  the  probate  of  which  had  been 
revoked,  and  those  who  had  bought 
property    of    the    estate    from    them 
with  notice  of  the  invalidity  of  the 
will    (Gaines  v.  Chew.  2  How.  010. 
11    L.   ed.   402)  ;    and   by    a    surety 
upon    an    official    bond    against    the 
principal,     the     other     sureties     and 
purchasers  with    notice   of  property 
upon    which   the    bond    gave    a    lien. 
Schuessler   v.   Dudley.    80   Ala.   547. 
60    Am.   Rep.    124. 

34  Miller  v.  Weston,  C.  C.  A.,  190 
Fed.  I'M. 

35  Field  v.  Western  Life  Indemni- 
ty Co.,  166  Fed.  607. 


36  Fowler  v.  Palmer.  C.  C.  A.,  160 
Fed.  1. 

37  Hultberg  v.  Anderson.  170  Fed. 
657 :  U.  S.  v.  Rea-Reed  Mill  &  Ele- 
vator Co..  171   Fed.  501. 

39  Hobbs  Mfg.  Co.  v.  Gooding,  166 
Fed.  933. 

40  McLean  v.  Lafayette  Bank,  3 
McLean,  415.  See  also  Jones  v. 
Slauson,  33  Fed.  632:  Potts  v. 
Hahn.  32  Fed.  660:  Pullman  v. 
Stebbins.  51  Fed.  10.  Contra.  Met- 
calf  v.  (adv.  S  Allen  (Mass.)  587. 
In  Mississippi,  a  stockholder's  bill 
was  sustained  which  sought  to  set 
aside  two  separate  deeds  of  trust 
executed  by  the  corporation  where 
one  of  the  defendants  owned  a  num- 
ber of  the  bonds  secured  by  each 
deed.  Hardie  v.  Bulger,  66  Miss. 
577. 


141] 


MISJOINDER    OF    DEFENDANTS. 


503 


one   covering   the    entire   property,    against    the    trustees,    the 
trustor, '  and    the    different    persons    claiming   liens    upon    it,41 
to  set  aside  a  will  and  deed,  executed  through  the  fraud  and 
undue  influence  of  one  defendant;   although  other  defendants 
claimed  through  him,  different  interests  in  the  property  in  ques- 
tion;42 a  bill  filed  by  one  of  the  next  of  kin  against  both  an 
administrator  and  his  sureties,  to  obtain  the  plaintiff's  share  of 
the  estate;43  a  creditor's  bill  against  the  members  of  two  dif- 
ferent firms,  and  the  personal  representatives  of  those  who  are 
dead,  when  some  were  members  of  both ; 44  a  bill  to  set  aside 
an  assignment  of  one  partner's  interest  in  the  firm  and  then  to 
divide  the  assets.45     A  bill  to  enforce  an  equitable  title,  such 
as^  a  trust,46  or  to  remove  a  cloud  upon  a  complainant's  title,47 
might  also  seek  partition  after  the  primary  relief  has  been 
established,  provided  that  no  defendants  needed  to  be  joined  who 
were  not  proper  parties  to  a  suit  for  the  principal  relief.    A  bill 
was  sustained  which  sought  partition  and  also  the  cancellation 
of  tax  deeds  upon  the  common  property  held  by  strangers  to 
the  partition.48    Persons  who  are  acting  in  concert  as  employees 
or  directors  of  the  same  corporation  in  the  infringement  of  a 
patent  or  trade-mark,49  or  who  are  charged  with  usino-  a  cor- 
poration  as  the  means  of  such  an  infringement,50  or,   it  was 
held,  the  manufacturer  and  sellers  of  the  same  articles,51  may 
be  joined  with  the  corporation  as  defendants  to  a  suit  for  an 


41  Grant  v.  Phoenix  Life  Ins.  Co., 
121  U.  S.  105.  30  L.  ed.  905.  See 
Pullman  v.  Stebbins,  51  Fed.  10; 
Hibernia  Ins.  Co.  v.  St.  Louis  &  X. 
C.  Transp.  Co.,  10  Fed.  596;  s.  c, 
320  U.  S.  16G,  30  L.  ed.  021. 

« Williams  v.  Crabb,  C.  C.  A.,  59 
L.R.A.  425,  117  Fed.  193,  202; 
James  v.  City  Investing  Co.,  188 
Fed.  513. 

«  Payne  v.  Hook,  7  Wall.  425. 

«  Nelson  v.  Hill,  5  How.  127,  12 
L.  ed.  81.  See  also  Oliver  v.  Piatt, 
3  How.  333,  11  L.  ed.  022.  But  see 
Griffin  v.  Merrill.  10  Md.  304. 

«  Hayes  v.  Heyer,  4  Sandford 
Ch.    (X.  Y.)    485. 

46  Hopkins    v.   Grimshaw,    165   U. 


S.  342,  358,  41  L.  ed.  739.  744; 
Briges  v.  S perry,  95  U.  S.  401  ; 
Haves'  Appeal,  123  Pa.  St.  110; 
Hayes  v.  Heyer,  4  Sandf.  Ch.  (X. 
Y.)  517.  But  see  Belt  v.  Bowie,  65 
Md.  350. 

« Vreelahd  v.  Yreeland,  48  X.  J. 
L.  50;  s.  c,  24  Atl.  551.  But  see 
Robinson  v.  Springfield  Co.,  21  Fla. 
203. 

48  riman   v.   Jaeger,   07    Fed.   980. 

49  Popperhusen  v.  Falke,  4 
Blatchf.  C.  C.  493. 

5<>Xerve  Food  Co.  v.  Baumbacb. 
32  Fed.  205;  California  F.  S.  Co.  v. 
Improved  F.  S.  Co..  51    Fed.  296. 

51  Capewell  Horse  Xail  Co.  v. 
Green,  C.  C.  A.,  188  Fed.  20 


v 


504 


BILLS   IN  EQUITY. 


[§  141 


injunction  and  an  accounting;  but  it  has  been  held  that  a  bill 
cannot  join  complainants  against  different  violators  of  .the  same 
patent52  or  copyright,53  when  their  infringements  were  not 
performed  in  confederacy  with  each  other.  But  the  sound- 
ness of  the  decision  last  cited  has  been  doubted  by  Judge 
Story  54  and  it  was  distinguished  by  Chancellor  Kent.55  It  was 
held  that  a  bill  against  an  interfering  patentee  was  multifarious 
when  it  joined  the  commissioner  of  patents  as  a  defendant 
and  prayed  for  a  reissue.56  A  bill  of  peace  may  be  filed  to 
dispose  of  the  claims  of  a  number  of  defendants,  which  all 
depend  on  the  determination  of  a  single  question  of  fact  or 
law.57  Such  bills  have  been  maintained  when  filed  by  a  rail- 
road company  against  several  ticket-scalpers  to  enjoin  their  sale 
of  tickets  which  by  their  terms  could  not  be  transferred,  and 
the  use   of  which   could  only  be   accomplished   by   a   fraud.58 


52  Jewell  v.  City  of  Philadelphia, 
186  Fed.  639:  Edison  v.  Allis- 
Chalmers  Co.,  191  Fed.  837;  Climax 
Lock  &  Ventilator  Co.  v.  Ajax  Hard- 
ware Mfg.  Co.,  192  Fed.  126. 

53  Dilly  v.  Doig,  2  Yes.  Jr.  486. 
See  Thomas  H.  El.  Co.  v.  Sperry 
El.  Co.,  46  Fed.  75. 

54  Story's  Eq.  PI..  §§  277,  278. 

55  Brinkerhoff  v.  Brown.  6  J.  Ch. 
(X.  Y.)  139,  155.  See  Foxwell  v. 
Webster,  10  Jur.    (X.  S.)    137. 

56  Gold  v.  Gold,  181  Fed.  544. 

57  Gaines  v.  Chew,  2  How.  619,  11 
L.  ed.  402;  U.  S.  v.  Cnrtner.  26 
Fed.  296,  298;  Hyman  v.  Wheeler. 
33  Fed.  329.  Such  are  a  bill  by  a 
parson  or  lord  of  a  manor  to  estab- 
lish a  claim  against  all  of  his  pa- 
li-liioners.  Brown  v.  Yennuden,  1 
Chan.  Cas.  272.  Or  tenants.  Con- 
yers  v.  Lord  Abergavenny.  1  Atk. 
285;  a  bill  by  the  owner  of  a  fishery. 
Mayor  of  York  v.  Tilkington,  1  Atk. 
284;  or  a  water-right,  Union  Mill  S. 
M.  Co.  v.  Dangberg,  81  Fed.  73:  to 
establish  his  claim  against  a  num- 
ber of  riparian  owners.  Or  by  the 
owner  or  a   fishery,  to  enjoin,  from 


the  use  of  the  same,  several  persons 
who  claim  the  right  under  a  State 
statute,  and  who  commit  trespass 
upon  the  land  of  plaintiff,  which  are 
only  incidental  to  their  fishing. 
Percy  Summer  Club  v.  Astle,  145 
Fed.  53 ;  and  to  prevent  injury  to 
the  stream.  Woodruff  v.  Xorth 
Bloomrield  G.  M.  Co..  16  Fed.  25: 
Pacific  L.  S.  Co.  v.  Handley,  98  Fed. 
327:  Warren  v.  Parkhurst.  186  X. 
Y.  45,  6  L.R.A.(X.S.)  1149.  78  X. 
E.  579.  9  Ann.  Cas.  512.  But  see 
Illinois  Steel  Co.  v.  Schweder.  133 
Wis.  561.  14  L.R.A.(X.S.)  239.  126 
Am.  St.  Rep.  977.  113  X.  W.  51; 
criticised  21  Law  Review.  200.  But 
a  bill  to  enjoin  the  owners  of  a  mill 
from  floating  logs  over  complain- 
ants' dam.  and  to  recover  damages 
for  previous  floatage,  which  joined 
as  defendants  former  owners  of  the 
mill,  was  held  to  be  multifarious. 
Allison  v.  Davidson  (Tenn.  Ch. 
.A  pp.).  39  S.  W.  905.  See  Car- 
michael  v.  Texarkana,  94  Fed.  561. 
58  Bitterman  v.  Louisville  &  X. 
R.  Co..  207  U.  S.  205.  52  L.  ed.  171  : 
Nashville,    C.    &    St.    L.    RY.    Co.    v. 


141] 


MISJOINDER    OF    DEFENDANTS. 


505 


To  prevent  several  hackmen  from  congregating  on  tlie  sidewalk 
adjacent  to  its  station.59  To  enjoin  different  abutters  from  in- 
terfering with  a  right  of  way,60  or  different  riparian  owners 
from  polluting  a  stream.61  To  enjoin  different  smelters  from 
injuring  the  complainant's  crops.62  The  owners  of  several 
mines  might  join  in  a  suit  to  enjoin  different  assayers  from 
buying  ore  from  laborers  employed  by  the  complainants,  al- 
though there  was  no  concert  of  action  among  the  defendants  in 
their  various  purchases.63  Bills  have  been  sustained  when  filed  : 
To  restrain  the  tax  collectors  of  different  counties  from  levvinar 
taxes  separately  assessed,  but  part  of  each  of  which  was  to  be 
paid  to  the  State,  and  the  validity  of  all  of  which  depended 
upon  the  construction  of  a  single  statute.64  By  a  city  to 
establish  its  claim  to  a  tax  against  several  of  the  class  liable 
to  the  same.65  To  quiet  a  title  against  a  number  of  claimants 
to  land  in  severalty,  the  validity  of  the  separate  title  of  each 
of  whom  depends  upon  the  construction  of  one  special  statute  66 
or  the  validity  or  construction  of  the  same  document 67  or 
proceeding.68     A  bill  is  not  multifarious  when  brought  to  en- 


McConnell,  82  Fed.  65;  Illinois 
Cent.  R.  Co.  v.  Caffrey,  129  Fed. 
770;  Pennsylvania  Co.  v.  Bay,  150 
Fed.  770. 

59  Donovan  v.  Pennsylvania  Co., 
199  U.  S.  279,  50  L.  ed.  192. 

60  Louisville  &  N.  R.  Co.  v.  Smith, 
C.  C.  A.,  128  Fed.  1. 

61  Woodruff  v.  No.  Bloomfield 
Gravel   Co.,    16   Fed.   25. 

62  Am.  Smelting  &  Refining  Co.  v. 
Godfrey,  C.  C.  A.,  158  Fed.  225,  89 
C.  C.  A.  1.19. 

63Q0ldfield  Consol.  Mines  Co.  v. 
Richardson,   194   Fed.   198. 

64  Union  Pae.  R.  Co.  v.  McShane, 
3   Dill.   303.     But   see  supra.   §    140. 

65  London  v.  Perkins,  2  Brown 
Pari.  Cas.  052. 

BBHeckman  v.  U.  S.,  224  U.  S. 
413,  56  L.  ed.  820;  modifying  and 
affirming  U.  S.  v.  Allen,  C.  C.  A., 
179  Fed.  13,  which  reversed  U.  S. 
v.  Allen,  171  Fed.  907;  U.  S.  v. 
Flournoy  L.  S.  &  R.  E.  Co.,  69  Fed. 


886;  Central  Pacific  R.  Co.  v.  Dyer, 
1  Saw.  641 ;  see  Oshorne  v.  Wiscon- 
sin Cent.  R.  Co.,  43  Fed.  824;  supra, 
§  140. 

67  Gaines  v.  Chew,  2  How.  619.  11 
L.  ed.  402;  Crews  v.  Bureham,  1 
Black,  352,  17  L.  ed.  91 ;  Hyman  v. 
Wheeler,  33  Fed.  329 ;  U.  S.  v.  Ciwt- 
ner,  26  Fed.  296:  U.  S.  v.  Rea-Read 
Mill  &  Elevator  Co.,  171  Fed.  501. 
But  see  Kansas  City  Southern  Ry. 
Co.  v.  Quigley,  181  Fed.  190. 

68  Ulm'an  v.  laeger.  67  Fed.  980. 
But  hills  were  held  to  be  multifari- 
ous when  brought  against  thirty- 
four  defendants  to  enforce  thirty- 
four  separate,  although  similar, 
contracts,  Cheney  v.  Goodwin.  88 
Me.  503;  s. .  c.  34  Atl.  420;  nor 
against  fifteen  defendants  to  cancel 
separate  notes  severally  held  by 
them,  some  of  which  were  alleged 
to  be  forgeries  and  the  others  ob- 
tained by  fraud,  the  forger  and  de- 
frauder  being  a  stranger  to  the  suit, 


506  BILLS  IN   EQUITY.  [§    142 

join  several  members  of  a  trade  union  or  other  persons  from 
acts  of  violence  or  other  trespasses  in  furtherance  of  a  strike.69 
But  it  was  held  that  the  claimant  of  a  large  tract  of  land, 
separate  parts  of  which  were  in  the  possession  of  different  per- 
sons claiming  title  in  various  ways,  could  not  enforce  his 
rights  against  them  all  in  a  single  bill.70  Where  the  evidence 
did  not  justify  a  charge  of  combination  made  in  the  bill,  it  was 
dismissed  for  nullifariousness  upon  the  hearing.71 

§  142.  Multifariousness  without  misjoinder  of  parties. 
The  Equity  Rules  of  1912  provide:  "The  plaintiff  may  join 
in  one  bill  as  many  causes  of  action,  cognizable  in  equity,  as 
he  may  have  against  the  defendant.  *  *  *  If  it  appear 
that  any  such  causes  of  action  cannot  be  conveniently  disposed 
of  together,  the  court  may  order  separate  trials/'  *  This  seems 
to  abrogate  the  old  doctrine  of  equitable  practice,  that  a  bill 
was  bad  for  multifariousness  when  two  or  more  distinct  and 
unconnected  grounds  of  equitable  relief  were  therein  joined. 
To  create  this  defect  under  the  former  practice,  it  was  requisite 
that  the  grounds  of  relief  should  be  different  and  that  each 
ground  should  be  sufficient  as  stated  to  sustain  a  separate  bill.2 
A  bill  was  considered  to  be  multifarious  when  it  joined  two 
matters,  where  the  necessary  parties  to  the  suit  were  the  same, 
but   their   interests   and   attitude  were  decidedly   at  variance.3 

Scott    v.   McFarland,    70    Fed.    280;  45    So.    S61.      See   Harv.    Law    Rev., 

not-    to    enjoin    several    landowners  XXV.  559. 

from  suing  plaintiff  because  of  his  69  Oxley  Stave  Co.  v.  Coopers'  Int. 

alleged    nuisance.      Ducktown    Sul-  Union.   72   Fed.  695:    Casey   v.   Cin- 

phur,   etc.,    Co.    v.    Fain.    109    Tenn.  cinnati   Typ.   Union.   12   L.R.A.   193, 

56,    70   S.    W.    S13.      See    So.    Penn.  45    Fed.    135:    Arthur    v.    Oakes.    C. 

Oil   Co.  v.  Calf  Creek  O.  &    G.   Co.,  C.  A..  25  L.R.A.  414.  4  Inter*.  Com. 

140    Feci.    ;>n7.    and    to    enjoin    dif-  Rep.    744.    9    Am.    Crim.    Rep.    109, 

ferent    persons    from    suing    a    tele-  03  Fed.  310:  supra,  §  115    infra,  eh. 

phone  company  in  tort  for  removing  XVIII. 

telephones      from      their      separate  ~°  Buchanan  Co.  v.   Adkins.  C.  C. 

premises.      Cumberland   Tel.   &   Tel.  A.,  175  Fed.  092. 

Co.   v.    Williamson.    (Miss.)    57    So.  71  Coe  v.  Turner,  5  Conn.  86.    But 

559;    following    Tribette    v.    Illinois  see    iufnt.   i    143. 

Cent.  R.  Co.,  70  Miss.  182,  19  L.R.A.  §  142.     1  Fq.  Rule  26. 

66Q,  ::5  Am.  St.  Rep.  642,  12  So.  32:  2  Brown    v.   Guarantee   Safe   Dep. 

overruling  Whitloek  v,  Yazoo  >fc  Mis-  &  Tr.  Co..  12S  II.  s.  403. 

sissippi  Valley  R.  Co.,  91  Miss.  779,  3  See  Field  v.  Camp,  193  Fed.  160. 


§    142]  MULTIFARIOUSNESS.  507 

Bills  were  held  not  to  be  multifarious  when  filed :  to  dissolve 
a  partnership  and  to  partition  the  estate,  real  and  personal ;  4 
to  set  aside  and  cancel  an  insurance  policy  and  enjoin  the  further 
prosecution  of  an  action  to  recover  premiums  paid  upon  the 
same;5  to  compel  the  issue  of  a  policy  and  at  the  same  time 
collect  the  same ; 6  to  reform  a  written  agreement  on  account  of 
a  mistake  and  enforce  its  performance  as  reformed ; 7  by  a 
bondholder  to  compel  a  city  to  apply  to  their  payment  the  pro- 
ceeds of  assessments,  upon  which  he  had  a  lien,  an]  also  pray- 
ing to  enforce  a  general  liability  by  the  city  to  pay  the  bonds ; 8 
to  foreclose  a  mortgage,  with  a  prayer  for  the  enforcement 
of  the  liability  at  common  law  of  the  owner  of  the  mortgaged 
premises  to  pay  rents  to  the  mortgagor.9  It  has  been  said: 
"That  when  the  right  of  a  party  to  specific  relief  is  so  in- 
cumbered that  he  cannot  assert  that  right  against  another  until 
he  has  removed  the  incumbrance,  he  cannot  include  an  attempt 
to  get  rid  of  the  incumbrance  in  a  suit  for  specific  relief,  which 
he  might  be  entitled  to  have,  if  the  incumbrance  were  out  of 
the  way."  10  It  has  been  held,  under  the  former  rules,  that  an 
equitable  owner  of  stock,  whose  title  was  contested,  could 
not  in  the  same  suit  obtain  the  legal  title  and  also  protection 
of  the  corporate  assets.11  But  the  soundness  of  these  decisions 
may  be  doubted,  and,  under  the  new  rules,  the  doctrine,  that 
equity  having  once  obtained  jurisdiction  will  afford  full  relief, 
2 nay  be  enforced.  Under  the  former  practice,  where  a  cause 
of  action  arising  under  the  laws  of  the  United  States  was 
joined  with  one  of  which  a  Federal  Court  had  no  original  juris- 
diction, and  there  was  no  diversity  of  citizenship,  a  demurrer 

*Briges  v.  Sperry,   95   U.   S.  401,  9  Fidelity  Tr.   &   Guaranty   Co.   v. 

24  L.  ed.  390.  Fowler  Water  Co.,  113  Fed.  500. 

5  Eq.  Life  Assur.  Soc.  v.  Patter-  10  Inman  v.  X.  Y.  Interurban 
son,  1    Fed.  126.  Water     Co.,     131     Fed.     997.     999; 

6  Herbert  v.  Mutual  Life  Ins.  Co.,  quoted  with  approval.  Witberbee  v. 
12  Fed.  S07:  Brugger  v.  State  Inv.  Bowles,  142  App.  Div.  (X.  Y.)  407, 
Ins.   Co.,   5   Sawyer,   304,   Fed.   Cas.  417,  reversed,  201  X.  Y.  4:27. 

Xo.  2051.  11  Inman     v.     X.     Y.     Interurban 

'Gillespie  v.  Moon.  2  J.  Cb.    (X.  Water     Co..     131      Fed.     997,     999: 

Y.)    58.5.  7  Am.  Dec.  559.  Witberbee  v.   Bowles.    142   App.  Div. 

8  Olmsted  v.  City  of  Superior,  155  (X.  Y.)    407.  417;    U.  S.  Steel  Cor- 

Fed.    172.  poration  v.  Hodge,  G4  X.  J.  Fq.  S07, 


508 


BILLS    IX    EQUITY. 


[§   145 


for  multifariousness  was  sustained.12  Where  the  requisite 
diversity  of  citizenship  was  pleaded,  such  joinder  might  be 
made  when  the  transactions  were  connected;13  but  not,  in  a 
patent  case,  where  the  infringement  was  committed  within  the 
district,  but  neither  party  was  a  citizen  or  resident  thereof.1* 
Under  the  former  practice,  it  was  not  multifarious  to  seek, 
in  the  same  bill,  an  injunction  against  the  infringement  of 
several  copyrights  by  the  same  publication15  or  theatrical  per- 
formance,16 or  in  different  states  where  the  general  method 
of  the  infringement  was  the  same  and  the  acts  were  committed 
pursuant  to  a  common  purpose  by  the  defendant.17  It  has 
been  held,  in  England,  that  plaintiff  may  not  sue  the  defend- 
ant for  the  infringement  of  twenty-three  patents,  but  that  he 
will  be  limited  to  selecting  no  more  than  three  of  them  for 
joinder  of  acts  of  infringement  thereof  in  the  same  suit.18  The 
former  rules  concerning  the  joinder  of  complaints  against 
the  infringement  of  different  patents  are  considered  in  a  subse- 
quent section. 

§  143.  Objections  for  multifariousness  or  misjoinder. 
An  objection  to  a  bill  for  multifariousness  or  a  misjoinder  of 
parties  or  of  causes  of  action,  when  it  appears  upon  the  face 
of  the  bill,  should  be  taken  by  a  motion  to  dismiss  upon  that 
specific  ground.1  The  rule  formerly  was  that  the  objection 
should  be  raised  by  a  special  demurrer.2  If  not  apparent  upon 
the  face  of  the  bill,  it  is  doubtful  whether  it  can  be  raised  by 


809,  60  L.R.A.  742.  Contra,  Weber 
v.  Wallerstein,  Xo.  ],  111  App.  Div. 
(N.  Y.)    603. 

12  Keasby  &  Mattison  Co.  v. 
Philip  Cary  Mfg.  Co..  113  Fed.  432; 
C.  L.  King  &  Co.  v.  Inlander,  133 
Fed.  416.  Contra.  Onondaga  Indian 
Wigwam  Co.  v.  Ka-Xoo-Xo  Indian 
Mfg.  Co.,  182  Fed.  832.  See.  also, 
Jaros  Hygienic  Underwear  Co.  v. 
Fleece  Hygienic  Underwear  Co..  60 
Fed.  622;  Ball  &  Socket  Fastener 
Co.  v.  Colin.  90  Fed.  664:  Adam  v. 
Folger,  C.  C.  A..  120  Fed.  260;  G. 
Heileman  Brewing  Co.  v.  Independ- 
ent Brewing  Co.,  C.  C.  A.,  191  Fed. 
489.     See  su/ira.  §24 


13  Havens  v.  Burns,  188  Fed.  441. 
HWoerheide     v.     H.     W.     Johns- 
Manville  Co.,   199   Fed.  535. 

15  Amberg  F.  &  I.  Co.  v.  Shea,  C. 
C.  A.,  82  Fed.  314;  Harper  v.  Hol- 
nian.  84  Fed.  222. 

16  Empire  City  Amusement  Co.  v. 
Wilton,   134   Fed.   132. 

17  Bracken  v.  Rosenthal,  151  Fed. 
136. 

18  Saccharin  Corporation  v.  Wild. 
(1903,  C.  A.)  1  Ch.  410.  See  Saccha- 
rin Corporation  v.  White,  (C.  A.) 
88  L.  T.  850. 

§   143.     lEq.  Rule  29. 
2  Nelson   v.  Hill,  5  How.   127,   12 
L.  ed.  81;  Hemidon  v.  Chicago.  Rock 


143] 


OBJECTIONS    FOR    MULTIFARIOUSNESS. 


500 


plea  or  answer.3  If  it  is  shown  by  the  bill,  it  can  never  be 
taken  for  the  first  time  at  the  hearing4  or  upon  appeal;8 
but  the  court  may,  of  its  own  motion,  dismiss  a  bill  for  multi- 
fariousness  at  any  time;6  and  perhaps  the  objection  that  the 
rights  of  the  complaints  are  inconsistent  can  be  raised  at  the 
hearing.7  In  one  case  the  court,  at  the  hearing,  required  the 
petitioner  to  elect  which  claim  it  should  enforce,  and  then  dis- 
missed the  rest  of  the  petition.8  The  objection  cannot  be  taken 
by  a  defendant  who  is  not  injured  by  it.9  The  misjoinder  of  a 
defendant  against  whom  the  bill  states  no  ground  for  relief 
is  not  a  cause  for  a  demurrer  bv  the  other  defendants.10  Multi- 
fariousness  as  to  subjects  or  parties  does  not  render  a  decree 
void,  so  that  it  can  be  treated  as  a  nullity  in  a  collateral  action.11 


Island   &   Pac.    Ry.    Co..    218   U.    S. 
135,   155,  54  L.  ed.  070.   076. 

3  Benson  v.  Hadfiold,  4  Hare.  32; 
Greenwood  v.  Churchill,  1  M.  &  K. 
559;  Gibbs  v.  Clagett,  2  Gill  &  J. 
(Md.)  14;  Putnam  v.  Hollander,  6 
Fed.  8S2;  Story's  Eq.  PL,  §  747: 
Beames  on  Pleas,  157,  158.  But  see 
Coe  v.  Turner,  5  Conn.  86. 

4  Greenwood  v.  Churchill,  1  M. 
&  K.  559;  Oliver  v.  Piatt,  3  How. 
333,  412,  11  L.  ed.  622,  658;  Nelson 
v.  Hill,  5  How.  127,  12  L.  ed.  81; 
Bowman's  Devisees  v.  Wathen,  2 
McLean.  37G;  U.  S.  v.  Reading  Co., 
183  Fed.  427. 

5  Oliver  v.  Piatt,  3  How.  333,  412, 
11  L.  ed.  622,  658;  Barney  v. 
Latham.  103  V.  S.  205,  215.  26  L. 
ed.  514,  518;  Converse  v.  Michigan 
Dairy  Co.,  45  Fed.  18;  Herndon  v. 
Chicago,  Rock  Island  &  Pac.  Ry. 
Co..  218  U.  8.  135,  54  L.  ed.  070. 

6  Oliver  v.  Piatt,  3  How.  333,  412, 
11  L.  ed.  622,  658;  Nelson  v.  Hill, 
5  How.  127,  132,  12  L.  ed.  81,  83; 
Greenwood  v.  Churchill.  1  M.  &  K. 
559;  Ohio  v.  Ellis,  10  Ohio.  456; 
Herndon  v.  Chicago,  Rock  Island  & 
Pac.  Ry.  Co..  218  U.  S.  135,  54  L. 
td.  070. 


'Davics  v.  Quarterman,  4  Y.  & 
Coll.  257. 

8  State  Trust  Co.  v.  Kansas  City, 
P.  &  G.  R.  Co.,  128  Fed.  129. 

9  Buerk  v.  Imhaeuser,  8  Fed.  457; 
Metropolitan  Trust  Co.  v.  Colum- 
bus, S.  &  H.  R.  Co..  93  Fed.  680; 
Missouri  Broom  Mfg.  Co.  v.  Guy- 
mon,  C.  C.  A.,  115  Fed.  112.  Where 
a  contractor  had  agreed  to  pay  an 
employee  a  percentage  of  the  prof- 
its of  contracts  with  different  mu- 
nicipalities, it  was  held  that  a  bill 
by  the  employee,  joining  the  munici- 
palities as  co-defendants  with  the 
contractor,  for  an  accounting, 
though  said  to  be  subject  to  d  ism  is 
sal  for  multifariousness  at  the  in- 
stance of  one  of  the  municipalities, 
was  not  so  at  that  of  the  contractor. 
Olds  v.  Regan  (N.  J.  Ch.),  32  Atl. 
827.  See  also  Couse  v.  Columbia 
Power  Mfg.  Co.  (N.  J.  Ch.),  33  Atl. 
331. 

10  Warthen  v.  Brantley,  5  Ga. 
571  ;  Whitbeck  v.  Edgar.  2  Barb. 
Ch.  (N.  V.)  106:  Miller  v.  Jamison, 
9  C.  E.  Green  (X.  J.),  41;  Story's 
Eq.   PL.  §  544. 

ii  Hefner  v.  Northwestern  Life 
Ins.  Co.,  123  U.  S.  747,  31  L.  ed. 
309. 


510 


BILLS    IN    EQUITY. 


[§   1-14 


It  has  been  held  that  a  bill  is  not  multifarious  which  joins  an 
insufficient  with  a  good  case  for  equitable  relief,  when  there 
is  no  misjoinder  of  parties,  and  that  the  proper  course  of  the 
defendant  is  to  demur  to  so  much  of  the  bill  as  is  insuffi- 
cient ; 12  but  that  a  bill  is  multifarious  which  joins  two  incon- 
sistent complaints  by  different  plaintiffs,13  although  the  case 
shown  by  the  principal  plaintiff  is  not  sufficient.  It  is  within 
the  constitutional  power  of  Congress  to  pass  a  law  allowing, 
in  a  single  specified  suit  against  a  corporation  chartered  by 
it,  matters  and  defendants  to  be  joined  in  a  manner  that  would 
otherwise  constitute  multifariousness.14  The  question  in  each 
instance  where  it  arises  calls  for  the  exercise  of  the  dircretion 
of  the  court,  regard  being  had  to  considerations  of  convenience 
and  the  substantial  rights  of  the  parties.15  Multifariousness 
depends  so  much  upon  the  discretion  of  the  courts  of  first 
instance  that  a  decision  overruling  an  objection  upon  that  ground 
would  not  be  reviewed  upon  appeal,16  except  under  very  extra- 
ordinary circumstances.  AYhen  an  objection  for  multifarious- 
ness is  sustained  the  complainant  will  always  be  allowed,  if  he 
asks  leave  to  do  so,  to  amend  upon  payment  of  costs.17  In  gen- 
eral, it  may  be  remarked  that  multifariousness  is  an  objection 
much  more  often  taken  than  sustained.18 

§  144.  General  rules  of  equity  pleading.  Otherwise,  the 
rules  regulating  the  frame  of  a  bill  and,  with  the  exceptions 
subsequently  given,  of  other  pleadings  in  equity  are  substan- 
tially the  same  as  those  of  pleading  at  common  law;  but  more 
liberality  is  used  in  their  construction,1  and  the  use  of  technical 


12  McCabe  v.  Bellows,  1  Allen 
(Mass.)   209;  Snavely  v.  Harkrader, 

29  Gratt.  (Va.)  112;  Story's  Eq. 
PL,  §  283.  See  Brown  v.  Guarantee 
Trust  Co.,  128  U.  S.  403,  32  L.  ed. 
468. 

13  Walker  v.  Bowers,  104  U.  S. 
24r>.  249,  26  L.  ed.  729,  731;  Bracken 
v.  Rosenthal,  151  Fed.  136. 

14 U.  S.  v.  Union  Pac.  R.  Co.,  98 
V.    S.   569.'  25    L.   ed.    143. 

15  Weir  v.  Bay  State  Gas  Co.,  91 
Fed.  940,  per  Dallas,  J. 

16  See  Gaines  v.  Chew,  2  How. 
019.   11   L.  ed.  402;   Oliver  v.  Piatt, 


3  How.  333,  11  L.  ed.  622;  Barney 
v.  Latham,  103  U.  S.  205,  26  L.  ed. 
514;  Graves  v.  Ashburn,  215  U.  S. 
331.  54  L.  ed.  217;  Sheldon  v. 
Keokuk  N.  L.  Packet  Co.,  8  Fed. 
769;  Hpsrner  v.  Wyoming  Ry.  & 
Iron  Co..   126  Fed.   S84. 

17  Walker  v.  Powers,  104  U.  S. 
245,  249,  26  L.  ed.  729,  731;  Price 
v.  Coleman,  21  Fed.  357. 

18  Quoted  with  approval,  United 
Cigarette  Mach.  Co.  v.  Wright,  132 
Fed.  195. 

§  144.  l  Darnell's  Ch.  Pr.  (2d 
Am.  ed.),  413.     Supra,  §  137. 


§   144]  general  rules  of  equity  pleading. 


511 


expressions  is  never  necessary.2  The  Equity  Rules  of  1912 
provide:  "Unless  otherwise  prescribed  by  statute  or  these 
rules  the  technical  forms  of  pleadings  in  equity  are  abolished." 
An  allegation  that  the  plaintiff  is  seized  in  fee  simple  is  equi- 
valent to  an  allegation  that  he  is  in  possession.4  If  the  plaintiff 
claim  under  a  derivative  title,  he  must  show  the  steps  by  which 
it  has  come  into  existence; 5  but  this  is  not  ordinarily  necessary 
when  the  plaintiff  prays  protection   to  rights   connected   with 


2  Darnell's  Ch.  Pr.  (2d  Am.  ed.), 
414. 

3Eq.  Rule  18. 

4  Gage  v.  Kaufman,  133  U.  S.  471, 
33  L.  ed.  725.  A  plea  which  simply 
alleged  that  the  defendant  was  '"the 
sole  owner  in  fee  simple"  of  the 
property  in  question  was  held  to  be 
bad  as  a  conclusion  of  law.  Mc- 
Closkey  v.  Barr,  38  Fed.  165.  It 
was  said:  that,  in  a  suit  to  remove 
a  cloud  from  the  title  of  land,  gen- 
erally, "it  will  be  found  sufficient 
for  the  plaintiff  to  allege  his  pos- 
session, and  interest  or  estate  in 
the  land,  as  that  he  is  the  owner 
thereof  in  fee  for  life  or  for  years, 
and  that  he  claims  the  same  by  a 
regular  chain  of  conveyances  from 
some  recognized  and  undisputed 
source  of  title,  as,  the  United 
States,  or  its  donee  under  the  do- 
nation act  of  September  27..  1850, 
without  setting  out  such  convey- 
ances or  stating  them  in  detail. 
But  when  there  is  reason  to  be- 
lieve, as  in  this  case  and  many 
others,  that  the  rightfulness  of  the 
defendant's  claim  depends  on  the 
validity  or  legal  effect  of  some  link 
or  links  in  the  conveyances  under 
which  the  plaintiff  claims  title,  it 
is  very  convenient,  if  not  necessary, 
that  the  statement  of  the  plaintiff's 
case  should  contain  the  facts  fully 
and  in  detail  at  that  point  in  the 
chain  of  his  title  where  it  conflicts 
with    the    claim    of    the    defendant. 


By  so  doing  the  necessity  of  future 
amendments  will  be  avoided,  and 
the  progress  and  dispatch  of  the 
case  promoted."  A  demurrer  to  a 
bill  for  a  lack  of  certainty  in  this 
respect  was  sustained.  Goldsmith 
v.  Gilliland.  22  Fed.  865.  But  see 
Thomas  v.  Xantahala  Mi,  &  T.  Co., 
58  Fed.  485.  On  the  foreclosure  of 
a  mortgage  for  default  in  payment 
of  interest  coupons,  an  allegation 
that  they  are  due  and  wholly  un- 
paid "to  your  orator  and  other  hold- 
ers of  said  bonds"  was  held  a  suffi- 
cient allegation  of  ownership.  Toler 
v.  East  Tennessee,  V.  &  A.  Ry.  Co., 
C.  C.  A.,  67  Fed.  168. 

5  Lord  Digby  v.  Meech.  Bunb. 
195:  Humphreys  v.  Tate,  4  Iredell's 
Eq.  (N.  C.)  220:  Marshall  v.  Turn- 
bull.  34  Fed.  827:  Daniell's  Ch.  Pr. 
(2d  Am.  ed.)  369,  370.  For  a  case 
upon  the  sufficiency  of  allegations 
in  a  hill  that  complainants  comprise 
all  the  heirs  and  next  of  kin  of  de- 
ceased, as  showing  complainants' 
title,  the  bill  also  containing  the 
decree  of  distribution,  see  Hubbard 
v.  Urton,  67  Fed.  419.  "It  is  not 
necessary,  when  all  the  legal  and 
equitable  owners  are  joined., to  state 
(he  formalities  or  the  mode  of  con- 
veyance by  which  the  equitable  in- 
terests became  vested  in  the  co- 
complainants."  Shipman,  J.,  in 
Black  v.  Henry  G.  Allen  Co.,  9 
L.R.A,  433,  42  Fed.  618,  623. 


512 


BII/LS    IN    EQUITY. 


[§    1^ 


land,  of  which  he  is  in  possession.6  Where,  in  a  suit  to  restrain/ 
the  diversion  of  the  waters  of  a  stream,  the  complainant's 
claimed  to  be  prior  appropriators  as  to  a  certain  number  of 
cubic  inches  of  water,  and  to  be  entitled  to  additional  amount? 
as  the  grantees  of  other  appropriators ;  it  was  held,  that  the 
bill  should  allege  on  what  lands  such  additional  amounts  of 
water,  appropriated  by  complainants'  grantors,  were  used  by 
them.7  Where,  however,  there  is  an  existing  privity  between 
the  plaintiff  and  defendant,  independently  of  the  plaintiff's 
title,  which  gives  the  plaintiff  a  right  to  maintain  the  suit ;  as, 
for  example,  if  they  are  landlord  and  tenant,  or  mortgagor  and 
mortgagee,  then  it  is  not  necessary  to  state  the  plaintiff's  title 
fully  in  the  bill.8  Where  the  bill  alleged  that  complainant  de- 
livered certain  securities  to  defendant,  as  trustee  and  depositary, 
to  hold  and  thereafter  deliver  and  distribute  to  him  as  directed 
by  the  complainant,  but  did  not  set  forth  the  terms  and  con- 
ditions of  the  deposit,  so  as  to  show  that  it  was  not  a  mere  bail- 
ment ;  it  was  held,  that  the  bill  did  not  aver  trust  sufficient  to 
confer  jurisdiction  upon  a  court  of  equity.9  If  the  plaintiff's 
title  would  be  incomplete  without  the  performance  of  some  pre- 
liminary act,  then  a  performance  must  be  alleged,  and  a  mere 
statement  that  the  title  is  complete  was  insufficient.10    In  a  bill 


6  Miller  &  Lux  v.  Rickey,  127  Fed. 
573. 

7  Miller  &  Lux  v.  Rickey,  127  Fed. 
573. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
370,  371. 

9  Young  v.  Mercantile  Trust  Co., 
C  C.  A.,  145  Fed.  39;  Ford  v. 
Charles  E.  Blaney  Amusement  Co., 

1  4S  Fed.  G42. 

10  Walburn  v.  Ingilby,  1  M.  &  K. 
01;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
369;  supra,  §  150.  An  allegation 
that  tire  complainant  acquired  the 
title  by  purchase  from  the  assignee 
in  bankruptcy  of  the  original  owner 
was  held  sufficient,  although  it  did 
not  state  that  the  assignee  in  bank- 
ruptcy obtained  an  order  from  the 
court  authorizing  him  to  make  the 
.sale.      Amory    v.   Lawrence,   3    Cliff. 


523.  Where  the  plaintiff  sued  as 
a  shareholder  of  a  joint-stock  com- 
pany, and  merely  alleged  in  his  bill 
"that  he  purchased  for  valuable  con- 
siderations divers  shares,  upon 
which  the  instalment  of  five  per 
cent,  had  been  paid,  and  that  he 
ever  since  has  been,  and  now  is,  the 
holder  of  such  shares;"  while  in 
another  part  of  the  bill  it  was  al- 
leged "that  by  the  rules  of  the  asso- 
ciation, as  set  forth  in  the  pros- 
pectus, no  transfer  of  shares  would 
be  valid  in  law  or  equity,  unless  the 
purchaser  was  approved  by  a  board 
of  directors,  and  signed  an  instru- 
ment binding  him  to  observe  the 
regulations," — it  was  held,  on  de- 
murrer, that  such  action  on  the 
part  of  the  board  and  the  purchaser 
was    a    condition    precedent    to    the 


I  144]      GEXEEAL  RULES  OF  EQUITY  PLEADING. 


513 


filed  by  an  executor  or  an  administrator,  it  seems  to  be  sufficient 
to  state  that  the  will  has  been  proved,  or  letters  of  administration 
taken  out,  "in  the  proper  court,"  without  naming  it.11  If, 
however,  the  plaintiff  undertake  to  name  the  court,  and  it  be 
an  improper  or  insufficient  one,  the  bill  is  demurrable.12  An 
-allegation  that  the  defendant  is  a  trustee  is  insufficient  with- 
out a  statement  of  the  facts  which  make  him  a  trustee.13  When 
the  nature  of  the  conveyance  through  which  the  plaintiff  claims 
is  such  that  by  common  law,  independent  of  a  statute,  as,  for  ex- 
ample, the  statute  of  frauds,  no  deed,  writing,  or  other  for- 
mality was  essential  to  its  validity,  the  English  rule  was  that 
compliance  with  such  formality  need  not  be  alleged.14  In  this 
respect  equity  followed  the  rule  at  common  law,  that  such  statu- 
tory regulations  did  not  alter  the  form  of  pleadings.15  If, 
however,  it  appeared  upon  the  face  of  the  bill  that  compliance 
had  not  been  made  with  such  a  formality,  the  bill  was  demur- 
rable upon  that  ground.16  But  when  a  right  has  been  originally 
-created   by   statute,   as   a  right   to   land   by   devise,   or   in   this 


transfer  of  the  title  to  a  share  of 
stock;  and  that  the  bill  was  de- 
fective for  not  alleging  such  action. 
Waltmrn  v.  Ingilby,  1  M.  &  K.  61. 
A  complainant  who  rests  his  title 
upon  a  tax  deed  must  plead  per- 
formance of  the  prerequisites  to  the 
validity  of  the  deed.  Green  wall  v. 
Duncan,  16  Fed.  35;  \Y alburn  v. 
Ingilby,  1  M.  &  K.  61;  Atwill  v. 
Ferrett.  2  Blatchf.  C.  C.  39;  Chica- 
go Music  Co.  v.  J.  W.  Butler  Paper 
Co..  10  Fed.  78;  Trow  City  Di- 
rectory Co.  v.  Curtim  30  Fed.  829; 
Ford  v.  Charles  F.  Blaney  Amuse- 
ment  Co..   148    Fed.   642,  645. 

11  Humphreys  v.  Ingledon,  1  P. 
Wins.  752:  Black  v.  Henry  G.  Al- 
len Co..  42  Fed.  618,  623.  The  aver- 
ment that  the  complainant  was  duly 
'"appointed  administrator  was  held 
insufficient;  the  issue  of  letters  of 
administration  must  be  alleged. 
Otto  v.  Regina  M.  B.  Co.,  87  Fed. 
510.  Where  the  state  statute 
(Minn.  P.  L.  1905.  §  3842)  author- 
Fed.  Prac.  Vol.  T.— 33. 


izes  a  foreign  guardian  to  sue  in 
the  state  provided  he  file  an  au- 
thenticated copy  of  letters  in  the 
probate  court  in  the  county  where 
the  ward's  property  is  situated,  it 
was  held  that  a  bill  by  such  a 
guardian  was  not  demurrable  for 
failure  to  allege  the  filing  of  such 
a  copy.  Pulver  v.  Leonard.  176  Fed. 
586. 

12  Tourton  v.  Flower.  3  P.  Wms. 
369;  Black  v.  Henry  G.  Allen  Co.. 
9  L.R.A.  433.  42  Fed.  618.  624; 
Daniell's  Ch.  Pr.    (2d  ed.)    264. 

13  Evan  v.  Avon,  29  Beav.  144. 

14  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
416;  Harrison  v.  Hogg.  2  Yes.  Jr. 
327. 

15  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
416;   Stephen  on  Pleading.  313. 

16  Randall  v.  Howard,  2  Black. 
585,  589,  17  L.  ed.  269,  271;  Dan- 
iell's Ch.  Pr.  (2d  Am.  ed.)  417; 
Redding  v.  Wilkes,  3  Brown,  C.  C. 
401. 


514 


BILLS    IN"    EQUITY. 


[§  144 


country  a  patent  or  copyrights,  according  to  the  former  practice, 
a  compliance  with  the  statutory  requirements  had  to  be  alleged 
by  one  claiming  under  it.17  It  has  been  held  that  an  estoppel 
in  pais  must  be  pleaded  by  the  party  who  seeks  to  avail  himself 
of  the  same.18 

Where  complainant  for  fraud  or  a  mistake  in  fact  attacks  a 
patent,  issued  by  the  Land  Department,  he  must  plead  and 
prove  the  evidence  before  the  department,  show  the  particular 
mistake  that  was  made,  the  wav  in  which  it  occurred,  and  the 
fraud,  if  any,  which  induced  the  issue  of  the  patent.19  "The 
rule  in  equity  is  that  it  is  not  sufficient  to  charge  a  fraud  simply, 
but  you  must  charge  also  some  injury  as  the  result  of  the 
fraud." 20  Where  a  bill  shows  apparent  laches,  it  should  set 
forth  the  impediments  to  an  earlier  suit,  the  cause  of  the  com- 
plainant's previous  ignorance,  if  any,  of  his  rights,  and  when 
he  first  knew  of  them.21 

In  construing  a  bill  in  equity,  every  doubt  is  against  the 
pleader;22  but  contracts  by  corporations  are  presumed  to  be 
within  their  charters  until  the  contrary  is  shown.23  When 
the  bill  contains  general  and  specific  allegations  as  to  the  same 
matter,  the  general  allegations  will  be  referred  to  those  which 
are  specific24    Exhibits  attached  to  the  bill,  and  therein  referred 


HDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
419:  Sullivan  v.  Redfield.  1  Paine, 
441 :  Atwfll  v.  Ferrett,  2  Blatcli.  C. 
C.  39:  Walburn  v.  Ingilby,  1  M.  & 
K.  01  :   Atwill  v.  Ferrett,  2  Blatchf. 

C.  C.  39;  Chicago  Music  Co.  v.  J. 
W.  Butler  Paper  Co.,  19  Fed.  758; 
Trow  City  Directory  Co.  v.  Curtin, 
36  Fed.  829;  Ford  v.  Charles  E. 
Blaney  Amusement  Co.,  148  Fed. 
642,  645.  This  rule  of  equity  prac- 
tice is  enforced  under  the  English 
Rules  of  18S3.  Seear  v.  Lawson,  1(5 
Ch.  D.  621;  Read  v.  Brown.  22  Q. 
B.   D.   128;    Davis  v.  James,  26   Ch. 

D.  778. 

18  Maybury  v.  Louisville  &  J.  F. 
Co..  60  Fed.  645. 

19  Le  March«>l  v.  Tppnrarden.  133 
Fed.  826:  U.  S.  v.  Pratt  C.  &  C. 
Co.,   18    Fed.    708:    Murphy   v.   East 


Portland,  42  Fed.  308;  Lehigh  Z.  & 
I.  Co.  v.  X.  J.  Z.  &  I.  Co..  43  Fed. 
545,  546;  Olson  v.  Nor.  R.  Co..  43 
Fed.  112.  But  see  Robinson  v.  Sub- 
urban Brick  Co.,  C.  C.  A..  127  Fed. 
804. 

20  Linn  v.  Green.  17  Fed.  407. 

21  Badger  v.  Badger,  2  Wall.  87, 
17  L.  ed.  836;  Richards  v.  Mackall. 
124  U.  S.  183,  31  L.  ed.  396;  Candy 
v.  Marble,  122  U.  S.  432.  30  L.  ed. 
1223;  Wollensak  v.  Reiher,  115  U. 
S.  96,  29  L.  ed.  350. 

22  Phelps  v.  McDonald.  99  U.  S. 
298.  305,  25  L.  ed.  473.   475. 

23  Express  Co.  v.  Railroad  Co.,  99 
U.  S.  191,  199,  25  L.  ed.  319,  320. 

24  Ellis  v.  Colman.  25  Beav.  662; 
Lumiey  v.  Wabash  Ry.  Co.,  71  Fed. 
21 ;  Story's  Eq.  PL,  §  37a. 


§  145]  stockholders'  bills.  515 

to,  are  considered  as  a  part  of  the  same.25  "As  to  exhibits,  they 
are  a  mere  matter  of  indulgence.  In  good  pleading,  strictly, 
the  bill  should  give  the  requisite  full  information  of  itself; 
but  indulgence  to  loose  practice  and  convenience  has  allowed 
exhibits  with  explicit  reference  to  them  in  the  bill,  and  they 
may  be  referred  to  in  aid  of  the  bill ;  but  they  may  not  be 
omitted  altogether,  as  here,  and  the  pleader  content  himself 
with  a  naked  reference  by  its  date  to  some  document  of  record 
in  a  far-away  place."  26  "Good  pleading  requires  that  every- 
thing that  is  material  to  the  case  should  be  set  forth  in  the 
pleading  itself  by  proper  averments.  This  may  be  done  in 
general  terms,  and  the  exhibit  may  be  referred  to  for  greater 
certainty  as  to  particular  details,  but  the  pleading  ought  to 
contain  the  substance  of  the  case." 27  Where  the  plaintiff's 
title  is  intelligibly  shown,  there  is  no  need  for  profert  of  the 
documents  upon  which  it  is  founded.28 

§  145.  Stockholders'  bills.  By  the  Equity  Rules  of  1912, 
"Every  bill  brought  by  one  or  more  stockholders  in  a  corporation 
against  the  corporation  and  other  parties,  founded  on  rights 
which  may  properly  be  asserted  by  the  corporation,  must  be 
verified  by  oath,  and  must  contain  an  allegation  that  the  plain- 
tiff was  a  shareholder  at  the  time  of  the  transaction  of  which 
he  complains,  or  that  his  share  had  devolved  on  him  since  bv 
operation  of  law,  and  that  the  suit  is  not  a  collusive  one  to  con- 
fer on  a  court  of  the  United  States  jurisdiction  of  a  case  of 
which  it  would  not  otherwise  have  cognizance.  It  must  also 
set  forth  with  particularity  the  efforts  of  the  plaintiff  to  secure 
such  action  as  he  desires  on  the  part  of  the  managing  directors 
or  trustees,  and,  if  necessary,  of  the  shareholders,  and  the  causes 
of  his  failure  to  obtain  such  action,  or  the  reasons  for  not  mak- 
ing such  effort."  1  This,  with  the  exception  of  the  last  clause, 
is  the  neAV  promulgation  of  a  former  equity  rule,  adopted  during 
the  October  term,  1881. 2  The  original  object  of  the  rule  was  t.» 

25  Black  v.  Henry  G.  Allen  Co.,  9       Kelly,    41    Uiss.    490,    9:5    Am.    Dee. 
L.R.A.  433,  42  Fed.  (ilS,  (125;  infra,       2(i7. 

§  306-  28  La     Republique     Francaise     v. 

26  Hammond,    J.,    in    Electrolibra-       Seliultz,   57    Fed.   379;    infra,   §   14G. 
tion    Co.    v.    Jackson,    52    Fed.    773,  §    145.     l  Eq.  Rule  27. 

776;    infra,   §    146.  2  Old  .Ea.  Rule  94. 

27  Chancellor  Ellett  in  Harvey  v. 


516 


BILLS    IN    EQUITY. 


[§   145 


prevent  suits  brought  by  stockholders,  in  collusion  with  the  cor- 
poration, in  Federal  courts,  which  otherwise  would  not  have 
had  jurisdiction  thereof,  and  to  remedy  abuses  in  this  respect, 
which  had  then  become  a  common  practice.3  It  has  been  held 
by  one  Circuit  Court  to  apply  to  a  suit  removed  from  the  courts 
of  the  State,  the  practice  of  which  required  no  such  allegations.4 
That  part  of  the  rule  which  forbids  such  a  suit  by  a  party  who 
has  bought  the  stock  in  good  faith  and  for  a  valuable  considera- 
tion, since  the  cause  of  action  arose,  might  well  be  attacked  as 
unconstitutional.  That  such  a  purchasing  stockholder  has 
the  right  to  bring  such  a  suit  has  been  held  by  the  courts  of  New 
Hampshire,5  Illinois,6  Alabama,7  Montana,8  Idaho,9  Pennsyl- 
vania,10 New  Jersey,11  and  Xew  York.12     The  opposite  position 


3  Hawes  v.  Oakland  (Hawes  v. 
Contra  Costa  Water  Co.)  104  U.  S. 
450..  460,  461.  26  L.  ed.  827.  832, 
where  Mr.  Justice  Miller  said  that 
a  stockholder  could  not  tile  a  bill 
founded  upon  rights  which  might 
properly  be  asserted  by  his  corpo- 
ration against  the  company  and 
other  parties,  unless  there  existed. 
See  also  Huntington  v.  Palmer,  104 
l".  S.  482.  26  L.  ed.  833;  Greenwood 
v.  Freight  Co.,  105  U.  S.  13,  26  L. 
ed.  961;  Detroit  v.  Dean,  106  U.  S. 
537,  27  L.  ed.  300;  Quincy  v.  Steel, 
120  U.  S.  241.  30  L.  ed.  624. 

*Venner  v.  Great  Northern  Ry. 
Co.,  153  Fed.  408 ;  affirmed  on  ques- 
tion of  jurisdiction  only,  209  U.  S. 
24.  52  L.  ed.  666.  Contra.  Earle  v. 
Seattle,  L.  S.  &  E.  R.  Co..  56  Fed. 
909  ;  s.  c,  Eabens  v.  Union  Pac.  Ry. 
(  o..  58  Fed.  497  ;  Maeder  v.  Buffalo 
Bill's  Wild  West  Co.,  132  Fed.  280. 

5  Winsor  v.   Bailey,  r,^  X.  H.  218. 

6  City  of  Chicago  v.  Cameron,  22 
111.    App.    91.    affirmed    &0   111.    447. 

»  L.  &  P.  Co.  v.  Lahey,  121  Ala. 
131. 

8  Forrester  v.  B.  &  M..  etc.,  Co., 
21   Mont.  544.  565. 

9  Just    v.    Idaho    Canal,    etc..    Co., 


16    Idaho,    639,    133    Am.    St.    Rep. 
140.   102   Pac.  Rep.   381. 

10  Rafferty    v.    Donnelly,    197    Pa. 
St.  423. 

11  Appletbn   v.   Am.   Malting   Co., 
65  N.  J.  Eq.  375. 

i2Pollitz  v.  Gould.  202  X.  Y.  11, 
38     L.R.A.lX.S.)     988,     Ann.     Cas. 
1912D,  1098.    The  argument  of  Judge 
Hiscock    seems    unanswerable.      "As 
nn     original     proposition    it     would 
seem    to    be    clear    that    a    right    of 
action   by    or   in   behalf   of   the   cor- 
poration   for    fraud    to    set    aside    a 
conveyance  of  its  assets  or  to  avoid 
obligations  imposed  upon  it  is  part 
of    its    rights,    property    and    assets 
in  which  a  stockholder  has  this  in- 
divisible interest  transferable  by  the 
transfer    of    his    certificates.      I    am 
unable  to   see   any   real  or  substan- 
tial  distinction   by   virtue   of   which 
a    stockholder    transferring   his   cer- 
tificates   would    transfer    all    of    his 
indivisible  interest  in  bonds  or  real 
estate  on  hand,  but  would  not  trans- 
fer his  interest   in  a  right  of  action 
to     recover     bonds     or     real     estate 
which    had   been   fraudulently   with- 
drawn   from    the    possession    of    the 
corporation,  and  which  it  was  enti- 


145] 


STOCKHOLDERS      BILLS. 


51' 


tied  to  recover.  And  if  the  subse- 
quent holder  by  acquiring  the  cer- 
tificates does  acquire  such  latter  in- 
terest, it  seems  to  follow  that  he 
may,  if  necessary,  in  behalf  of  the 
corporation,  assert  and  prosecute  an 
action  to  protect  and  enforce  the 
same. 

"Brief  reference  may  be  made  to 
some  of  the  reasons  advanced  in 
opposition  to  this  view.  Counsel 
points  out  practical  inconvenience 
which  he  says  will  result  from  its 
application,  owing  to  the  difficulties 
in  tracing  stock  and  distinguishing 
that  which  has  not  assented  to  the 
transaction  from  that  which  has  or 
from  that  which  perhaps  has  been 
issued  since  its  consummation. 
These  arguments,  however,  are  so 
counterbalanced  by  corresponding 
claims  from  the  opposite  standpoint 
as  to  be  of  little  weight. 

"Again,  it  is  argued  that  if  one 
buys  stock  subsequent  to  the  trans- 
action he  should  be  regarded  as  buy- 
ing subject  to  it  and  not  be  permit- 
ted to  question  it.  If  the  prior 
holder  should  give  binding  consent 
to  the  transaction,  this  under  cer- 
tain circumstances  undoubtedly 
would  prevent  the  subsequent  pur- 
chaser from  questioning  it.  But, 
in  the  absence  of  special  circum- 
stances, I  fail  to  see  any  principle 
of  estoppel  or  logic  which  makes  a 
subsequent  purchase  of  stock  so  sub- 
ject to  a  fraudulent  corporate  trans- 
action that  the  purchaser  may  not 
insist  upon  its  being  set  aside. 
There  is  scarcely  any  analogy  be- 
tween the  situation  of  one  who  buys 
property  from  an  individual  which 
the  latter  has  subjected  to  a  trans- 
action which  has  not  been  disaf- 
firmed and  that  of  one  who  pur- 
chases stock  in  a  corporation  which 
has  the  continuing  right  before  and 


after  the  purchase  to  disaffirm  a 
wrong  which  has  been  perpetrated 
on  it  by  its  agents.  There  is  little 
or  no  basis  for  the  practical  consid- 
eration that  one  who  buys  stock 
should  be  deemed  to  have  adjusted 
his  price  to  an  existing  transaction 
even  though  voidable.  If  he  knows 
of  it  he  may  just  as  properly  be 
assumed  to  have  adjusted  his  price 
to  the  knowledge  that  the  transac- 
tion may  still  be  disaffirmed  and 
avoided. 

"Then,  lastly,  an  argument  is  made 
which  seems  to  be  founded  on  the 
idea  that  in  order  to  bring  an  ac- 
tion of  this  nature  the  stockholder 
must  in  effect  disaffirm  the  corpo- 
rate transaction  and  that  this  dis- 
affirmance involves  a  personal  right 
of  election  which  vests  in  the  one 
holding  the  stock  when  the  transac- 
tion is  consummated  and  which  can- 
not be  transferred.  It  is  said  'the 
right  to  question  a  fraud  is  not  a 
purchasable  commodity,'  and  is  not 
'capable  of  assignment  and  trans- 
fer,' and  does  not  pass  'as  an  im- 
plied incident  to  every  sale  of  cor- 
porate stock,'  and  this  view  seems 
to  be  supported  by  some  of  the 
many  cases  which  have  been  collect- 
ed and  reviewed  by  counsel  with 
manifest  industry  and  care. 

"So  far  as  this  argument  means 
to  assert  that  a  mere  naked  right  to 
question  a  corporate  transaction 
could  not  be  transferred  to  a  stran- 
ger,- if  such  an  attempt  can  be  con- 
ceived of,  it  may  be  assumed  to  be 
true.  But  the  assertion  that  the 
right  to  protect  stock  by  procuring 
an  improper  corporate  transaction 
to  be  vacated  does  not  pass  on  a 
transfer  o^  the  stock  is  a  very  dif- 
ferent proposition. 

"The  election  to  disaffirm  a  fraud- 
ulent corporate   transaction   belongs 


;i8 


BILLS    IN    EQUITY. 


[§  145 


is  taken  by  the  courts  of  Georgia,13  Colorado,14  New  Mexico,15 
North  Carolina,16  Iowa,17  Nebraska,18  Analogous  rules  regu- 
late a  suit  by  a  stockholder  to  set  aside  a  contract  by  the  cor- 
poration as  beyond  the  powers  conferred  in  its  charter.19 

It  seems  that  the  rule  does  not  apply  where  the  suit  arises 
under  the  Constitution  of  the  United  States,20  nor  to  a  suit  by 
It  does  not  apply  to  suits  brought  by  the  stock- 


a  mortgagee. 


21 


to  and  is  exercised  in  the  right  and 
name  of  the  corporation  and  not  of 
the  stockholder.  The  stockholder 
demands  that  the  right  shall  be 
exercised  and  the  cause  of  action  be 
prosecuted  by  the  corporation  or 
does  it  himself  for  the  corporation. 
It  is  conceded  that  the  one  holding 
the  stock  when  the  fraud  is  con- 
summated has  this  right.  When  he 
transfers  his  certificates  the  trans- 
action still  stands  a  continuing 
wrong  impairing  the  surplus  of  the 
company  and  affecting  the  stock. 
If  the  transferee  has  the  right  to 
have  it  avoided  it  will  protect  and 
increase  the  value  of  his  stock.  If 
he  has  not  acquired  this  right  it  is 
the  only  one  held  by  his  predecessor 
in  or  through  the  corporation  which 
has  been  thought  of  which  has  not 
been  transferred  by  the  transfer  of 
the  stock.  It  will  be  an  anomalous 
exception  if  the  prior  holder  retains 
the  right  to  maintain  or  have  main- 
tained this  action  while  he  passes 
all  of  his  other  rights  by  the  trans- 
fer of  his  stock.  The  only  justifica- 
tion pleaded  for  this  is  the  idea  sug- 
gested of  a  personal  and  non-trans- 
ferable right  of  election  to  disaffirm 
vested  in  the  original  holder.  But 
this  theory  is  entirely  unsubstan- 
tial. Such  prior  holder  does  not 
acquire  this  right  to  object  to  the 
transaction  and  bring  an  action  to 
set  it  aside  as  a  power  conferred 
upon  him  by  reason  of  any  personal 
qualities,   but    because   of   his   char- 


acter as  a  stockholder,  and  when  he 
loses  this  character  and  transfers  it 
to  another  with  his  stock  there  is 
no  reason  why  the  latter  should  not 
exercise  the  right  as  a  proper  and 
necessary  incident  to  and  for  the 
benefit  of  his  stock  ownership." 

13  Alexander  v.  Searcy,  81  Ga. 
536,  12  Am.  St.  Rep.  337. 

i*Boldenweck  v.  Bull  is,  40  Colo. 
253. 

15  Rankin  v.  S.  W.  B.  &  I.  Co.,  12 
N.  Mex.  54. 

16  Moore  v.  Silver  Valley  Co.,  104 
K.  C.  534. 

17  Clark  v.  Am.  Coal  Co.,  86  la. 
436,  17  L.R.A.  557. 

18  Home  Fire  Ins.  Co.  v.  Barber, 
67  Neb.  644,  60  L.R.A.  927,  108  Am. 
St.  Rep.  716. 

19  Dimpfell  v.  Ohio  &  Miss.  R.  Co., 
110  U.  S.  209,  28  L.  ed.  121;  Taze- 
well v.  Farmers'  Loan  &  T.  Co.,  12 
Fed.  752;  Greenwood  v.  Freight  Co., 
105  U.  S.  13,  26  L.  ed.  961., 

20  Ball  v.  Rutland  R.  Co.,  93  Fed. 
513.  See  Smyth  v.  Ames,  169  U.  S. 
466,  42  L.  ed.  819;  Pollock  v.  Farm- 
ers' L.  &  Tr.  Co.,  157  U.  S.  429,  39 
L.  ed.  759.  Contra,  Corbus  v.  Alas- 
ka Treadwell  Gold  Min.  Co.,  187  U. 
S.  455,  47  L.  ed.  256. 

21  Consolidated  Water  Co.  v.  City 
of  San  Diego,  89  Fed.  272;  Dawson 
v.  Columbia  Trust  Co.,  197  U.  S. 
178,  181,  49  L.  ed.  713.  But  see 
Newby  v.  Oregon  C.  R.  Co.,  1  Saw- 
yer, 63;  Dickinson  v.  Consol.  Trac- 
tion Co.,  114  Fed.  232,  245. 


145] 


STOCKHOLDERS     BILLS. 


519 


holders  of  a  corporation  after  its  dissolution ; 22  nor  where  the 
corporation  has  made  a  general  assignment  for  the  benefit  of 
its  creditors  and  the  assignee  in  insolvency  has  refused  to  sue,23 
nor  to  a  suit  to  rescind  a  contract,  made  by  the  stockholders  in- 
dividually, for  the  transfer  of  the  corporate  property;24  nor 
to  a  bill  for  the  appointment  of  a  receiver  because  of  insol- 
vency;25 nor,  it  has  been  held,  to  a  suit  by  a  stockholder  alleg- 
ing that  his  corporation  had  ceased  actively  to  conduct  its 
business  and  to  elect  officers  and  directors,  praying  the  appoint- 
ment'of  a  receiver  and  a  winding  up  of  its  affairs;  but  the 
'rule  applies  where,  although  the  charter  of  the  corporation  has 
expired,  the  company  still  exists  for  the  purpose  of  winding  up 
its  affairs.27  Not,  it  has  been  said,  to  a  bill  where  the  complain- 
ant proceeds  against  the  formal  action  of  the  stockholders  of 
the  corporation.28  Nor,  it  has  been  held,  to  a  case  where  the 
complainants'  cause  of  action  existed  independently  of  and  prior 
to  the  accrual  of  their  rights  as  stockholders ;  for  example,  un- 
der a  contract  by  the  promoters  of  the  corporation.29  Nor  to  a 
suit  to  restrain  corporate  actions  to  which  the  president  of  the 
corporation  is  made  a  party  solely  for  purposes  of  discovery.30 
'.Nor  to  a  bill  by  a  depositor  on  behalf  of  himself  and  the  other 
depositors  to  hold  the  directors  of  a  bank  responsible  for  losses 
caused  by  their  misconduct.31  It  has  been  held  that  the  rule  does 
not  apply  to  a  bill  to  enforce  a  right  of  action  which  the  cor- 
poration could  not  enforce  in  its  entirety,  such  as  a  suit  which 
prayed  the  dissolution  of  the  corporation  as  well  as  the  rescis- 
sion of  a  contract  made  by  it.32  Where  bondholders,  by  judicial 
proceedings,  compelled  an  exchange  of  stock  for  their  bonds  sub- 


22  Lafayette  Co.  v.  Neely,  21  Fed. 
738.  See  Boyd  v.  Hankinson,  C.  C. 
A..  92  Fed.  49. 

23Streight  v.  Junk.  C.  C.  A.,  59 
Fed.  321. 

24  old  Colony  Trust  Co.  v.  Du- 
buque L.  &  Tr.  Co..  89  Fed.  794. 

25  Re  Cleland,  218  U.  S.  120,  54 
L.  ed'.  962. 

26  Briggs  v.  Traders'  Ins.  Co.,  145 
Fed.  254. 

27  Taylor  v.  Holmes,  127  U.  S. 
489,  32  L.  ed.  179;  s.  c,  14  Fed. 
498. 


28  Binney  v.  Cumberland  Ely  C. 
Co.,  183   Fed.  050. 

29  Rogers  v.  Penobscot  Mining 
Co..  154  Fed.   (10(1. 

30  Ix>o  v.  Union  Pac.  Ry.  Co..  17 
Fed.  273. 

31  Foster  v.  Bank  of  Abingdon.  SS 
Fed.  604. 

32i:;m-u^  v.  Gates,  C.  C.  A..  S9 
Fed.  783,  793.  See  Towle  v.  Am. 
B.  L.  &  I.  Co..  en  Fed.  131:  Excel- 
sior P.  P.  Co.  v.  Browne,  C.  C.  A., 
74  Fed.  321.  But  see  Becker  v. 
Hoke,  C.  C.  A.,  SO  Fed.  973. 


520 


BILLS    IN    EQUITY. 


[§  145 


sequent  to  the  transaction  of  which  complaint  was  made,  it 
was  held  that  they  could  not  maintain  a  stockholders'  suit  to 
set  the  same  aside.33  It  has  been  held  that  a  stockholder  can- 
not sue  to  enjoin  a  corporation  from  paying  internal  revenue 
taxes.34  The  bill  must  specifically  aver  that  the  suit  is  not  a 
collusive  one  to  confer  on  a  court  of  the  United  States  jurisdic- 
tion of  a  case  of  which  it  otherwise  would  not  have  cognizance.35 
It  is  insufficient  to  allege  "that  this  suit  is  brought  in  good 
faith,  and  for  the  collection  of,  and  to  compel  the  collection  of, 
what  your  orator  believes  to  be  a  meritorious  claim."  36  Col- 
lusion is  not  established  by  the  facts  that  the  corporation  would 
be  benefited  by  the  success  of  the  complainant ; 37  that  its  offi- 
cers expressed  a  desire  for  the  success  of  the  suit ; 38  that  the 
refusal  of  the  corporation  to  institute  the  suit  was  based  ex- 
pressly upon  the  ground,  that  that  would  excite  public  preju- 
dice against  the  company ; 39  that  one  or  more  other  stockholders 
who  are  citizens  of  the  same  State  as  the  principal  defendant, 
but  who  are  less  than  a  majority,  contribute  to  the  expense  of 
the  suit ; 40  that  the  stockholder's  counsel  is  subsequently  re- 
tained in  a  prior  suit  by  the  corporation  brought  by  it  for  the 
same  purpose,  which  is  still  pending  upon  an  appeal  taken  by 
the  company ; 41  that  the  corporation,  subsequent  to  the  com- 
mencement of  the  suit,  assisted  the  stockholder  in  the  same,  when 
there  is  no  proof  of  any  agreement  between  them  prior  to  the 


33  Citizens'  Saw  &  Tr.  Co.  v.  Illi- 
nois Cent.  R.  Co.,  173  Fed.  556. 

34  Strauss  v.  Abrast  Realty  Co., 
200  Fed.  327 ;  citing  Corbus  v.  Alas- 
ka Treadwell  Gold  Mining  Co.,  187 
U.  S.  455,  23  Sup.  Ct.  157,  47  L. 
ed.  2")ti:  distinguishing  Pollock  v. 
Farmers'  Loan  &  Trust  Co.,  157  U. 
S.  429,  15  Sup.  Ct.  (173,  39  L.  ed. 
759;  Zonne  v.  Minneapolis  Syndi- 
cate, 220  U.  S.  187,  31  Sup.  Ct. 
361,  55  L.  ed.  428. 

35QuinCy  v.  Steel,  120  U.  S.  241, 
246,  30  L.  ed.  624,  626;  Smith  v. 
Chase  &  Baker  Piano  Mfg.  Co.,  197 
Fed.  400. 

36Quincy  v.  Steel.  120  U.  S.  241. 
240.  247,  30  L.  ed.  024.  026. 


37  Chicago  v.  Mills,  204  U.  S.  321, 
51  L.  ed.  504;  affirming  Mills  v. 
Chicago,  143  Fed.  430. 

38  Ibid. 

39  Chicago  v.  Mills,  204  U.  S.  321, 
51  L.  ed.  504;  affirming  Mills  v. 
Chicago,  143  Fed.  430;  New  Albany 
Waterworks  v.  Louisville  Banking 
Co.,  122  Fed.  776,  58  C.  C.  A.  576; 
Consumers'  Gas  Trust  Co.  v.  Quin- 
l.y,  C.  C.  A.,  137  Fed.  882. 

40  Chicago  v.  Mills,  204  U.  S.  321, 
51  L.  ed.  504;  affirming  Mills  v. 
Chicago,  143  Fed.  430. 

41  Ibid. 


145] 


STOCKHOLDERS      BILLS. 


521 


filing  of  his  bill.42  Xor  even  when  the  plaintiff  testified  that 
he  understood  the  suit  was  brought  to  center,  upon  a  court 
of  the  United  States,  jurisdiction,  in  a  case  of  which  it 
would  not  otherwise  have  cognizance,  the  difference  of  citizen- 
ship between  him  and  the  defendants  being  undisputed.43  "It 
must  also  set  forth  with  particularity  the  efforts  of  the  plain- 
tiff to  secure  such  action  as  he  desires  on  the  part  of  the  man- 
aging directors  or  trustees,  and,  if  necessary,  of  the  sharehold- 
ers, and  the  causes  of  his  failure  to  obtain  such  action,  or  the 
reasons  for  not  making  such  effort."44  A  previous  demand 
upon  the  board  of  directors  is  unnecessary  in  a  case  of  emer- 
gency, when  irreparable  injury  would  be  caused  by  delay;  for 
example,  in  a  suit  to  redeem,  when  the  time  for  redemption 
expired  within  a  few  days ; 45  or  where  the  bill  shows  danger 
of  the  removal  of  the  assets  from  the  jurisdiction  pending  such 
an  application.46  A  previous  demand  is  not  required  in  a  case 
where  it  clearly  appears,  that  the  corporation  would  certainly 
refuse  to  bring  the  suit,  and  the  demand  would  be  a  vain  and 
useless  act.47  For  example,  a  bill  by  a  minority  stockholder  to 
set  aside  a  transaction  committed  by  the  approval  of  the  major- 
ity in  their  individual  interests,48  or  when  the  directors  of  the 
corporation,  at  the  time  the  suit  was  brought,  were  the  same 


42  Ibid.  For  other  cases  where 
refusals  to  sue  were  held  not  to 
be  collusive,  see  Bowdoin  College  v. 
Merritt.  (35  Fed.  213;  Fowl  v.  Am. 
B.  L.  &  I.  Co.,  60  Fed.  131. 

43  Ibid.  Perkins  v.  Pac.  Ry.  Co., 
155  Fed.  445. 

44  Eq.  Pule  27.  See  also  Hawes 
v.  Oakland.  104  U.  S.  450,  26  L.  ed. 
827;  Huntington  v.  Palmer,  104  U. 
S.  482.  26  L.  ed.  833;  Dodge  v. 
Woolsey,  18  How.  331,  15  L.  ed. 
401;  Greenwood  v.  Freight  Co.,  105 
U.  S.  13,  16,  26  L.  ed.  961;  Detroit 
v.  Dean,  106  U.  S.  537,  542,  27  L. 
ed.  300,  302;  County  of  Tazewell 
v.  Farmers'  L.  &  T.  Co.,  12  Fed. 
752;  Dimpfell  v.  Ohio  &  Miss.  R. 
Co.,  110  U.  S.  209,  28  L.  ed.  121  ; 
Quincy  v.  Steel.  120  U.  S.  241.  30 
L.  ed.  624:   §§  12,  87,  207;  Whitney 


v.   Fairbanks.   54    Fed.   985;    Strang 
v.  Edson,  198  Fed.  813. 

45  Young   v.    Alhambra   Mine   Co., 
71   Fed.  810. 

46  Tevis  v.  Hammersmith,  31  Ind. 
App.  281.  66  N.  E.  79. 

47  County  of  Tazewell  v.  Farmers' 


L.   &    T.    Co..    12    Fed. 


/  o 


CO. 


Ranger 


v.  Champion  C.  P.  Co.,  52  Fed.  611  : 
Rogers  v.  Nashville,  C.  &  St.  L.  Ry. 
Co.,  C.  C.  A.,  91  Fed.  200;  De  Neuf- 
ville  v.  X.  Y.  &  X.  Ry.  Co..  C.  C.  A.. 
81  Fed.  10.  Put  see  Squair  v.  Look- 
out Mountain  Co..  42  Fed.  729; 
Farmers'  L.  &  T.  Co.  v.  Toledo,  A. 
A.  &  X.  M.  Ry.  Co..  67  Fed.  40: 
Church  v.  Citizens'  S.  R.  Co.,  78 
Fed.  526. 

48  Doctor  v.  Harrington.  106  U. 
S.  570.  40  L.  ed,  606:  Rogers  v. 
Nashville,  C.  &   St.   L.   Ry.  Co..   C. 


522 


BILLS    IN    EQUITY. 


[§  145 


as  those  who  had  committed  the  wrongs,  which  the  suit  is 
brought  to  redress,49  or  a  bill  to  enforce  a  cause  of  action 
against  a  defendant  which  owns  or  holds  the  voting  power  of  a 
sufficient  amount  of  stock  of  the  plaintiff's  corporation  to  con- 
trol a  stockholders'  meeting.50  Xor  is  there  necessity  for  such 
;i  demand  in  a  suit  where  the  bill  states  facts  showing  that  the 
managing  directors  are  in  league  with  the  president,  who  chose 
them,  and  who  is  using  the  corporation  to  defraud  the  complain- 
ant;51 nor  where  it  is  shown  that  a  majority  of  the  stock  of 
the  corporation  is  controlled  by_  another  company,  which  the 
bill  seeks  to  enjoin  from  voting  thereupon,  so  as  to  elect  its 
own  directors  and  eliminate  competition,  to  the  irreparable  in- 
jury of  the  complainant.52  It  is  insufficient,  however,  to  allege 
complicity  of  the  president  and  directors  in  the  fraud,  of  which 
complaint  is  made,  when  the  bill  does  not  show  that  an  applica- 
tion to  the  stockholders  for  action  would  be  unavailing.53  Where 
the  matter  has  been  considered  at  a  stockholders'  meeting,  a  pro- 
test then  made  bv  the  dissenting  stockholders  is  sufficient  to 
enable  them  to  maintain  a  bill ; 54  but  the  bill  must  show  that  a 
majority  of  the  stockholders  voted  in  favor  of  the  proposition.55 
AYhere  the  bill  showed  that  the  largest  block  of  stock,  although 
less  than  a  majority,  was  held  or  controlled  by  the  wrongdoers, 
and  that  all  the  stock  not  owned  or  controlled  by  the  complain- 
ants was  scattered  among  small  holders;  it  wTas  held  to  be  suffi- 


C.  A.,  91  Fed.  290;  De  Xeufville  v. 
N.  Y.  &  N,  Ry.  Co.,  C.  C.  A.,  81 
Fed.  10;  Sager  v.  Culver,  147  N.  Y. 
241.  240;  Earle  v.  Seattle,  L.  S.  & 
E.  Ry.  Co.,  56  Fed.  909:  Eldred  v. 
Am.  P.  C.  Co.,  99  Fed.  168  3  Berwind 
v.  Canadian  Pac.  Ry.  Co.,  98  Fed. 
158. 

49  Howard  v.  National  Telephone 
Co..  182  Fed.  215.  See,  also.  Conti- 
nental Securities  Co.  v.  Interbor- 
ough  R.  T.  Co.,  165  Fed.  945: 
O'Connor  v.  Virginia  Passenger  & 
Power  Co.,  184  N.  Y.  46,  52. 

50  Delaware  &  Hudson  Co.  v.  Al- 
bany &  Susquehanna  R.  R.  Co..  213 
I.  S.  435.  53  L.  ed.  862;  Field  v. 
\\  estern  Life  Indemnity  Co.,  166 
Fed.  007. 


51  Monmouth  Tnv.  Co.  v.  Means, 
C.  C.  A.,  151  Fed.  159. 

52  Bigelow  v.  Calumet  &  Hecla 
Min.  Co.,  155  Fed.  869. 

53  Macon.  D.  &  S.  R.  Co.  v.  Shai- 
ler.  C.  C.  A.,  141  Fed.  585:  Smith 
v.  Chase  &  Baker  Piano  Mfg.  Co., 
197  Fed.  466,  where  the  bill  showed 
that  the  complainant  was  requested 
to  attend  a  directors'  meeting,  but 
had  not  done  so,  nor  made  any  at- 
tempt to  settle  the  dispute;  Binney 
v.  Cumberland  Ely  Copper  Co.,  183 
Fed.  650. 

54  Binney  v.  Cumberland  Ely  Cop- 
per Co..  1S3  Fed.  650. 

55  Ibid. 


145] 


STOCKHOLDERS      BILLS. 


523 


58 


cient.00  By  the  courts  of  the  State  of  Xew  York,  no  applica- 
tion to  the  stockholders  is  required.57  The  facts  showing  the 
control  of  the  corporation,  in  such  a  case,  must  be  specifically 
pleaded.58  An  averment  that  the  holders  of  a  majority  of  the 
stock  have  granted  a  voting  power  to  the  directors,  who  are  im- 
plicated in  the  transaction  attacked,  is  sufficient.59  But  it  was 
held  in  Xew  York  that  averments  that  the  defendants,  against 
whom  the  complaint  is  made,  caused  the  election  of  a  board  of 
directors,  "subservient  to  the  domination  and  dictation  of  said 
defendants,"  and  that  "the  company,  by  its  board  of  directors, 
acted  fraudulently  and  collusively  and  under  the  dom- 
ination of"  one  of  such  defendants ;  were  insufficient 
to  show  that  the  plaintiff  was  relieved  from  making  air 
application  to  the  board  prior  to  the  commencement  of  his 
suit;60  and  that  a  previous  demand  upon  a  corporation  to  dis- 
regard a  lease  did  not  authorize  a  suit  to  annul  the  same.61  The 
bill  should  show  the  time  and  manner  of  the  demand  and  that 
the  board  of  directors  had  not  changed.62  Where  a  bill  showed 
that  the  corporation  had  refused  to  sue  upon  the  advice  of  coun- 
sel that  the  proceeding  could  not  be  successfully  maintained,  it 
was  dismissed.63  General  averments  of  fraud  or  misconduct 
are  insufficient.64  Tangible  facts  to  sustain  such  averments  must 
be  pleaded.65  It  has  been  said  that  as  much  certainty  is  re- 
quired in  a  bill  by  a  stockholder  to  enforce  a  corporate  right  as 
in  a  bill  by  a  corporation  for  the  same  purpose.66  It  has  been 
said  that  the  allegations  required  by  the  rule  are  jurisdictional 


56  Delaware  &  Hudson  Co.  v.  Al- 
bany &  Susquehanna  R.  R.  Co.,  213 
U.  S.  435,  452,  53  L.  ed.  S62,  868. 

57  Continental  Securities  Co.  v. 
Belmont,  200  X.  Y.  7,  affirming  150 
App.  Div.  298. 

58  O'Connor  v.  Virginia  Passenger 
&:  Power  Co.,  184  X.  Y.  46.  52. 

59  Doctor  v.  Harrington,  196  U.  S. 
579.  49  L.  ed.  606. 

60  O'Connor  v.  Virginia  Passenger 
&  Power  Co.,  184  X.  Y.  46.  52.  See 
Brewer  v.  Boston  Theatre,  104 
Mass.  378. 


61  Flynn  v.  Brooklyn  C.  R.  Co., 
158  X.  Y.  493.  509. 

62Swope  v.  Vfllard,   61   Fed.  417. 

63  Hendriekson  v.  Bradley,  C.  C. 
A.,  85  Fed.  508. 

6*Sehel]  v.  Alston  Mfg.  Co..  149 
Fed.  439:  Smith  v.  Chase  &  Baker 
Piano  Mfg.  Co.,  197  Fed.  400:  Con- 
tinental &  0.  Tr.  &  S.  Bank  v.  Allis- 
Chalmers  Co.,  200  Fed.  000,  611. 
See  supra,  §  137. 

65  Ibid. 

66  Whitney  v.  Fairbanks,  54  Fed. 
9S5. 


524 


BILLS   IN   EQUITY. 


[§  145 


and  cannot  be  supplied  by  amendment ; 67  but  the  question  as  to 
the  sufficiency  of  a  bill,  under  this  rule,  cannot  he  certified 
directly  from  the  District  Court  to  the  Supreme  Court  of  the 
I  nited  States.68  An  allegation  that  complainant  is  the  bona 
fide  and  lawful  owner  "of  record"  of  a  specified  number  of 
shares  of  the  stock  of  the  corporation,  is  a  sufficient  averment 
that  the  complainant  is  a  stockholder.69  It  has  been  held:  that 
such  a  bill  must  contain  an  allegation  that  the  complainant  and 
his  predecessors  in  title,  since  the  transaction  which  he  seeks  to 
set  aside,  haye  not  acquiesced  in  the  same ; 70  that  a  tender  or 
offer  need  not  be  made  or  alleged,  which  might  be  necessary  in 
case  of  a  suit  brought  by  the  corporation;71  that  a  stockholder 
cannot,  in  the  same  suit,  seek,  on  his  own  behalf,  to  cancel  stock 
which  he  holds,  and  also,  on  behalf  of  all  the  stockholders,  to  set 
aside  corporate  transactions,73  but  that  he  can  pray  in  the  same 
bill  for  a  cancellation  of  an  illegal  issue  of  stock  to  others,  an 
injunction  restraining  the  transferee  from  voting  upon  the  same 
and  a  receiver  of  the  corporation.73  It  was  held,  under  the  for- 
mer rules,  that  an  equitable  owner  of  stock,  whose  title  was  con- 
tested, could  not  maintain  such  a  suit.74  But  the  soundness  of 
these  decisions  may  be  doubted.  Under  the  new  rules,  the 
doctrine  that  equity  having  once  obtained  jurisdiction  will 
afford  relief,  may  be  enforced  ;  and  there  can  be  little  doubt  that 
the  holder  of  a  certificate  of  stock,  endorsed  in  blank,  may  bring 


67  Dickinson  v.  Consol.  Traction 
Co.,  114  Fed.  232.  242. 

68  Venner  v.  Great  Northern  Rail- 
way Co.,  209  U.  S.  24,  52  L.  ed.  666. 

69  Continental  Securities  Co.  v. 
Interborough  R.  T.  Co.,  165  Fed. 
945,  063. 

70  Venner  v.  Atchison,  T.  &  S.  F. 
Ry.  Co.,  28  Fed.  5S1.  591;  Trimble 
v.  American  Sugar  Refining  Co.,  61 
N.  J.  Eq.  340.  See  Church  v.  Citi- 
zens' St.  R.  Co..  78  Fed.  526.  Con- 
tra, Brazil]  v.  Isham.  12  X.  Y.  9. 
17:  Pollitz  v.  Gould.  202  X.  Y.  11, 
38  L.R.A.lX.S.)  988.  Ann.  Cas. 
1912D.  1098;  Coatsworth  v.  Lehigh 
Valley  Ry.  Co..  115  App.  Div.  (X. 
Y.)   7;   Continental  Securities  Co,  v. 


Belmont,  75  Misc.   (X.  Y.)   234,  250. 

71  Edwards  v.  Mercantile  Tr.  Co., 
124  Fed.  381,  391;  Citizens'  Sav.  & 
Tr.  Co.  v.  Illinois  Cent.  R.  Co.,  C. 
C.  A..  182  Fed.  607. 

72  Church  v.  Citizens'  St.  R.  Co., 
78  Fed.  526. 

73  Howard  v.  National  Telephone 
Co..  182  Fed.  215. 

74  Inman  v.  Xew  York  Interurban 
Water  Co.,  131  Fed.  997,  999; 
Witherbee  v.  Bowles,  142  App.  Div. 
(X.  Y.)  407,  417;  U.  S.  Steel  Cor- 
poration v.  Hodge,  64  N.  J.  Eq.  807, 
809.  60  L.R-.A.  742.  Contra.  Weber 
v.  Wallerstein,  No.  1,  111  App.  Div. 
(N.  Y.)    693. 


146] 


PATEXT   CASES. 


525 


such  a  suit  before  the  stock  has  been  transferred  to  him  upon 
the  books  of  the  corporation,  although  out  of  abundant  caution 
it  might  be  prudent  to  join  as  a  party  the  person  in  whose  name 
the  stock  is  registered.75  It  has  been  said :  that  where  a  small 
minority  of  the  stockholders  have  been  injured  by  a  sale,  it  will 
not  always  be  rescinded;  but  that  the  court  may  direct  a  valua- 
tion of  the  complainants'  stock  and  the  payment  to  them  of 
the  same  under  such  a  penalty  as  will  give  them  ample  secur- 


ity 


76 


§   146.  Bills  to  enjoin  the  infringement  of  patents.     A 

bill  to  restrain  the  infringement  of  a  patent  must  allege :  that 
the  complainant  or  the  person  through  whom  he  claims  was  the 
inventor  or  discoverer  of  the  thing  or  process  patented ; l  that 
it  has  not  been  previously  patented,  nor  described  in  any  printed 
publication ; 2  that  it  was  not  in  public  use  nor  on  sale  for  more 
than  two  years  before  the  application.3  It  must  show  that  the 
patent  was  duly  issued ; 4  that  the  plaintiff  has  and  had,  at  the 
time  when  the  bill  was  filed,5  a  title  to  the   patent,   or  such 


75  See  §§  113,  120.  supra, 

76  Bhmey  v.  Cumberland  Ely  Cop- 
per  Co.,   18.3   Fed.   650,   653. 

§  146.  l  Sullivan  v.  Redfield,  1 
Paine,  441  ;  Am.  Grapliaphone  Co. 
v.  Xat.  Phonograph  Co.,  127  Fed. 
340.  For  a  precedent  of  a  bill  for 
the  infringement  by  the  original 
patentee,  see  McCoy  v.  Nelson,  121 
U.  S.  484,  30  L.  ed.  1017.  See  §29, 
supra;  §  277.  infra. 

2  Hutton  v.  Star  S.  S.  Co.,  00  Fed. 
747:  Diamond  Match  Co.  v.  Ohio 
W.  Co.,  80  Fed.  117;  Goebel  v.  Am. 
Ry.  Supply  Co..  55  Fed.  825;  Rub- 
ber T.  W.  Co.  v.  Davie,  100  Fed. 
85;  Am.  Graphophone  Co.  v.  Xat. 
Phonograph  Co.,  127  Fed.  349. 

3  Blessing  v.  John  Traeger  S.  C. 
Works,  34  Fed.  753;  Krick  v.  Jan- 
sen.  52  Fed.  823;  Am.  Graphophone 
Co.  v.  Xat.  Phonograph  Co..  127 
Fed.  349;  Hayes-Young  T.  P.  Co.  v. 
St.  Louis  Transit  Co.,  130  Fed.  900. 
An  allegation   that   it  had  not  been 


so  used  or  sold  with  the  consent  of 
the  inventor  is  insufficient.  Ibid. 
The  bill  need  not  allege  that  the 
invention  was  not  abandoned  before 
the  application  for  the  patent. 
Warren  F.  Co.  v.  Warner  Bros.  Co., 
92  Fed.  990. 

4  It  has  been  held:  that  an  alle- 
gation that  a  patent  was  duly  is- 
sued, upon  application  to  the  "prop- 
er department  of  the  government." 
is  insufficient.  Vant  Woud  Rubber 
Co.  v.   Sternau,    145   Fed.   197. 

5  Krick  v.  Jansen,  52  Fed.  S23. 
But  see  Arrott  v.  Standard  Mfg. 
Co.,  113  Fed.  1014.  Where  a  bill 
by  the  assignee  of  a  patent  seeks 
damages  and  profits  for  past  in- 
fringement, it  must  state  the  date 
of  the  assignment,  and  that  the 
right  of  recovery  for  past  damages 
and  profits  was  included  therein. 
Vant  Woud  Rubber  Co.  v.  Sternau, 
145  Fed.  197. 


526 


BILLS    IN     EQUITY. 


[§    146 


it 1 1  interest  in  the  same  as  gives  him  the  right  to  the  protec- 
tion from  the  court;6  and  that  the  defendant  has  infringed, 
and  still  infringes,  the  patent;7  or  threatens  to  infringe  the 
>;mie.8     When  the  hill  alleges:  that  a  patent  was  issned,  it  is 


6  Kriok  v.  Jansen,  52  Fed.  823: 
Am.  (Jraphophone  Co.  v.  Nat.  Pho- 
nograph Co..  127  Fed.  340.  It  has 
lieen  hold  insufficient  to  aver  sim- 
ply the  issue  to  complainant  of  the 
patent  and  iliat  the  letters-patent 
are  in  his  possession.  Lettelier  v. 
Mann.  70  Fed.  81.  But  see  Arrott 
v.  Standard  Mfg.  Co..  113  Fed.  1014. 
When  a  hill  alleged  "that  the  pat- 
entee was  the  original,  first  and  sole 
inventor  of  a  certain  new  and  use- 
ful improvement  in  the  construction 
of  cable  railways,  fully  described  in 
the  specification  of  the  said  letters- 
patent,  which  bad  not  been  patented 
to  himself  or  to  others,  with  his 
knowledge  or  consent,  in  any  coun- 
try, and  had  not.  to  his  or  the 
orator's  knowledge,  been  in  public 
use  or  on  sale  in  the  United  States 
for  more  than  two  years  prior  to 
his  invention  and  discovery  thereof, 
and  application  for  letters-patent  of 
the  United  States  therefor''  it  was 
held  sufficient.  American  Cable  Ry. 
Co.  v.  City  of  X.  Y..  42  Fed.  00. 
It  has  been  held  to  be  a  sufficient 
allegation  of  title  for  the  plaintiff 
to  allege  that  he  "was  the  true, 
original  and  first  inventor  of  a 
certain  new  and  useful  improved 
application  of  steam  power  to  the 
captain  of  vessels,  not  known  or 
used  before."  that  a  description  or 
specification  of  the  aforesaid  im- 
provement was  given  in  his  sched- 
ule to  the  aforesaid  letters-patent 
annexed;  accompanied  by  certain 
drawings  referred  to  in  said  last 
mentioned  schedule,  and  forming 
parts       of       said       letters-patent, — 


the  said  letters-patent  and  the 
said  specification  thereto  annexed 
(which,  your  orators  will  produce. 
which,  or  an  exemplified  copy  of 
which,  as  your  honors  may  direct) 
were  duly  recorded  in  the  patent 
office."  McMillin  v.  St.  Louis  & 
Mississippi  Valley  Transp.  Co.,  18 
Fed.  200.  Where  the  patentee  and 
licensee  joined  as  complainants,  and 
there  was  a  demurrer  for  misjoinder 
it  was  held,  that  the  complainants 
must  produce  the  license  upon  the 
argument  of  the  demurrer,  since 
it  was  not  set  out  in  the  bill. 
Dyer  v.  Cryder.   153   Fed.  767. 

7  Western    El.    Instrument    Co.    v. 
Valee   Bros.   El.    Co..    145    Fed.    534. 

8  Bowers  v.  Bucyrus  Co.,  132 
Fed.  39.  It  has  been  held  that  a 
simple  averment  that  the  defend- 
ant has  infringed  the  patents 
above  described  is  sufficient.  Am. 
Bell  Tel.  Co.  v.  Sou.  Tel.  Co..  34 
Fed.  803.  See  also  McMillin  v.  St. 
Louis  &  M.  V.  Tr.  Co..  18  Fed.  200: 
McCoy  v.  Nelson,  121  U.  S.  4S4.  30 
L.  ed.  1017:  Cleveland  F.  &  B.  Co. 
v.  U.  S.  Boiling  S.  Co.,  41  Fed.  476; 
Peters  v.  Chicago  Biscuit  Co.,  142 
Fed.  770.  See  Thomson-Houston  EL 
Co.  v.  Electrose  Mfg.  Co.,  155  Fed. 
543.  But  see  Am.  S.  L.  B.  Co.  v. 
Empire  S.  X.  Co..  50  Fed.  020.  It 
is  enough  to  aver:  "that  the  defend- 
ant is  now  constructing,  using, 
and  selling  steam-power  capstans 
for  vessels  in  some  parts  thereof 
substantially  the  same  in  con- 
struction and  operation  as  in  the 
said  letters-patent  mentioned." 
McMillin     v.     St.     bonis    &     Missis- 


146] 


PATENT  CASES. 


52^ 


unnecessary  to  allege  that  an  application  was  made.  The  filing 
of  the  application  in  due  form  commensurate  with  the  grant 
is  presumed  from  the  issue  of  the  patent.9     When,  to  meet  a 


sippi     Valley     Transportation     Co., 
18    Fed.    260,    261.      See    McCoy    v. 
Nelson,    121    U.    S.    484,    30    L.    ed. 
1017.     A  bill  for    an  injunction  and 
an  accounting  was  held  to  be  good 
on  demurrer,  although  it  did  not  al- 
lege  that   the    complainant   was   en- 
gaged in  using  the  invention  patent- 
ed, or  that  it  was  a  source  of  profit 
to  him,  when  it  alleged  that  the  de- 
fendant had  made  profits  by  the  use 
of  the  invention.     Wirt  v.  Hicks,  46 
Fed.   71.     A   bill   which   alleged   the 
issue  of  a  patent  for  a  "process"  of 
making  furniture  nails,  which  it  set 
forth,    alleged    that    the    defendant, 
"in    infringement    of    the    aforesaid 
letters-patent,"        did        wrongfully 
"make,   use,   and   vend   to  others  to 
be   used,   furniture   nails  embracing 
the     improvement     set     forth     and 
■claimed     in     the     aforesaid     letters- 
patent,"    was    held    demurrable    as 
not    containing    sufficient    averment 
of   infringement.     Am.  S.  L.  B.  Co. 
v.   Fmpire   S.   N.   Co.,   50   Fed.   929. 
Tl    has    been    held    that    in    a    suit 
against    two    or    more    for    the    in- 
fringement  of    a    patent,    a    general 
allegation    of    infringement    is    suffi- 
cient   without    a    specific    allegation 
that  they  are  joint   infringers.     In- 
durated F.  I.  Co.  v.  Grace,  52  Fed. 
124,    127;    Diamond    Match    Co.    v. 
Ohio  Match  Co.,  80  Fed.  117.     Con- 
tra, Shickle  v.  Foundry  Co.,  22  Fed. 
105;    Fitchel    v.    Barthel,    173    Fed. 
489.     A  bill  to  enjoin   the  infringe- 
ment of   a   patent  by   the  use  of  a 
machine  need  not  rlate  what  articles 
the  defendant  has  made  by  the  use 
of  the  machine.      Fischer  v.  Hayes, 
€  Fed.   76,   78.     An  allegation   that 


the    defendant    "since    the    date    of 
said  patent"  had  infringed  was  held 
upon  demurrer  not  to  signify  "ever 
since."    but    "after    or    subsequently 
to"  that  date.    Brush  El.  Co.  v.  Ball 
El.  Light  Co.,  43   Fed.  899.     Where 
the  bill   alleged   infringement  subse- 
quent   to    the    date  sof    the    patent 
and  more  than  six  years  before  the 
filing  of  the  bill,  it  was  held  not  to 
be  defective  because  it  failed  to  al- 
lege    such     infringement     had     con- 
tinued.   Fichtel  v.  Barthel,  173  Fed. 
489,  491.     A  bill  which  alleged  that 
a   complainant  had   obtained   a   cer- 
tain patent,  that  the  defendant  had 
obtained    patents    of    a    later    date 
which  interfered  with  complainant's 
rights,   and  that  defendant   is  mak- 
ing and  selling  machines  under  his 
patents,  and  has  in  other  ways  dis- 
turbed complainant   in   the  use  and 
enjoyment    of    the    rights    granted 
by   his   patent,   was   held   to   charge 
interference       sufficiently.         Stone- 
metz  P.  M.  Co.  v.  Brown  F.  M.  Co., 
46  Fed.  72.     It  has  been  held:   that 
where    a    bill    charges    the    infringe- 
ment  of  a  patent  generally,  it  may 
be    construed    as    charging    the    in- 
fringement   of    all    the    claims    and 
that  the  complainant  cannot  be  re- 
quired  to   amend   by   specifying   the 
claims,    with    respect    to    which    the 
infringement    is    claimed,    and    the 
parts     of     defendant's     machine     or 
structure,     which     are     claimed     to 
infringe.      Morton    Tr.    Co.    v.    Am. 
Car  &   Foundry   Co.,   C.   C.   A.,   129 
Fed.    916. 

9  Bowers  v.  Bucvrus  Co.,  132  Fed. 
39. 


528 


BILLS    IN    EQUITY. 


[§  146: 


defense  of  prior  public  use.  the  plaintiff  relied  upon  a  former 
application  which  had  been  abandoned,  it  was  said  that  the 
date  and  facts  concerning  the  same  should  have  been  pleaded  in 
the  hill.10  The  hill  need  not  se1  forth:  that  the  invention  was. 
not  patented  in  a  foreign  country  more  than  seven  months  be- 
fore the  filing  of  the  application  in  the  United  States.11  The 
hill  must  also  contain  a  substantial  description  of  the  patent 
or  else  set  out  the  patent  itself,  or  have  the  same  annexed  as. 
an  exhibit.12 

Profert  of  the  patent  will,  however,  suffice.13  and  will  supply 
any  deticiencies  concerning  its  contents  or  signature  which 
therein  appear.14  In  such  a  case,  only  its  title  need  be  set  forth.15 
It  is  insufficient  to  allege:  "as  by  the  said  letters  patent  and 
specifications,  all  in  due  form  of  law,  ready  in  court  to  be 
produced,  will  fully  appear;''16  hut  it  is  the  safer  practice 
also  to  state  the  number  of  the  patent,  and  the  volume  and"  page 
of  its  record  in  the  patent  office ; 17  together  with  its  title. 
An  allegation  of  the  date,  without  profert,  is  insufficient.18  It 
has  been  held :  that  the  mention,  in  a  bill,  of  prior  patents  to 
the  same  patentee,  does  not  amount  to  a  profert  of  such  patents, 
so  as  to  brino-  them  before  the  court  for  consideration  on   a 


10  Corrington  v.  Westinghouse  Air 
Brake  Co.,   C.  C.  A..  178   Fed.   711. 

11  American  Cereal  Co.  v.  Ori- 
ental Food  Co.,  145  Fed.  649. 

12  Stirrat  v.  Excelsior  Mfg.  Co.  44 
Fed.   142. 

13  Wilder  v.  McCormack,  2 
Blatchf.  31:  McMilliii  v.  St.  Louis 
&  Miss.  Valley  Transportation  Co., 
18    Fed.    260;    Dickerson    v.    Green. 


Fed.    247;    Bogart    v. 


Hinds. 


Bee    Candy 
Fichtel    v. 
'•The    de- 
bill    should 


53 

Fed.    4S4:     Hildreth    v. 

Mfg.   Co.,    162    Fed.    40; 

Barthel.    173    Fed.    489. 

murrer    says    that    the 

make  'profert'  of  the  letters  patent, 

and  the  plaintiff  replies  the  'profert' 

i-     unknown     to    equity     pleadings. 

Technically  this  may  be  so.  but  the 

equivalent     of     'profert'     is    known: 

and     whenever     the     law     pleadings 

must      make      'profert. '     the     equity 


pleadings  must  allege  and  prove 
with  fullness  enough  to  give  all  the 
benefit  the  'profert.'  would  give,  and 
under  a  rule  the  production  of  the 
document  would  be  compelled." 
Hammond,  J.,  in  Electrolibration 
Co.  v.  Jackson.  52  Fed.  773.  776.  See 
supra,  note  6:    infra.  £  366. 

14  Fichtel  v.  Barthel.  173  Fed. 
489. 

iSMcMillin  v.  St.  Louis  *  Miss. 
Valley  Transportation  Co..  18 
Fed.  260.  See  Dickerson  v.  Greene. 
53    Fed.   247. 

16  Wilder  v.  Mc( "ormick.  2 
Blatchf.  31  :  Dickerson  v.  Green. 
53  Fed.  247:  Bogart  v.  Hinds.  25 
Fed.  4S4.     See  infra,  §  366. 

17  Electrolibration  Co.  v.  Jackson, 
52  Fed.  773.  776.  See  Welsbach  L 
Co.  v.  Bex  I.  L.  Co..  S7  Fed.  477. 

18  Ibid. 


§  146]  PATENT  CASES.  529 

demurrer.19  In  case  of  a  profert,  the  document  thus  offered 
may  be  retained  in  the  custody  of  the  pleader  until  the  hear- 
ing.20 

The  Revised  Statutes  provide :  "Whenever,  through  inad- 
vertence, accident,  or  mistake,  and  without  any  willful  de- 
fault or  intent  to  defraud  or  mislead  the  public,  a  patentee  has, 
in  his  specification,  claimed  to  be  the  original  and  first  in- 
ventor or  discoverer  of  any  material  or  substantial  part  of  the 
thing  patented,  of  which  he  was  not  the  original  and  first  in- 
ventor or  discoverer,  every  such  patentee,  his  executors,  ad- 
ministrators, and  assigns,  whether  of  the  whole  or  any  sectional 
interest  in  the  patent,  may  maintain  a  suit  at  law  or  in  equity,. 
for  the  infringement  of  any  part  thereof,  which  was  bona  fide- 
his  own,  if  it  is  a  material  and  substantial  part  of  the  thing 
patented,  and  definitely  distinguishable  from  the  parts  claimed 
without  right,  notwithstanding  the  specifications  may  embrace 
more  than  that  of  which  the  patentee  was  the  first  inventor  or 
discoverer.  But  in  every  such  case  in  which  a  judgment  or 
decree  shall  be  rendered  for  the  plaintiff  no  costs  shall  be  re- 
covered unless  the  proper  disclaimer  has  been  entered  at  the 
Patent-Office  before  the  commencement  of  the  suit.  But  no- 
patentee  shall  be  entitled  to  the  benefits  of  this  section  if  he 
has  unreasonably  neglected  or  delayed  to  enter  a  disclaimer.''21 
It  has  been  held  that  when  one  of  the  claims  under  a  patent 
has  been  held  to  be  void,  a  disclaimer  of  the  same  must  be 
filed  before  the  final  decree  in  an  infringement  suit.22  Where 
the  complainants  sued  as  joint  owners  of  a  patent  and  as  such 
prayed  for  an  accounting,  adding  thereto  the  prayer  for  gen- 
eral relief,  it  was  held  that  profits  due  to  a  single  one  of  them, 
as  exclusive  licensee  for  a  certain  territory,  could  not  be  recov- 
ered in  the  absence  of  an  averment  concerning  his  license  in  the 
bill.23  But  the  better  practice  is  not  to  require  a  disclaimer 
until   the  entry  of  the  final  decree  after  any  accounting  that 

19  Bowers  v.  Bucyrus  Co.,  132  Fed.  22  Suddard  v.  Am.  Motor  Co.,  163 

39.  Fed.  852. 

80  Germain    v.    Wilgus,    C.    C.    A.,  8*  National   Metal   Weather   Strip 

67    Fed.  597.  Co.   v.    Bredin,   C.    C.    A.,    186    Fed. 

21  l'.  S.  R.  S..  §  4922,  5  Fed.  St.       490. 
Aim.  598.  Pierce's  Fed.  Code   (  1'tlO), 
p.    1652;   §   8789. 

Fed.  Prac.  Vol.  I.— 34. 


530 


BILLS    IN    EQUITY. 


[§   146 


may  be  ordered  lias  been  terminated,  in  order  that  the  com- 
plainant may  have  the  right  to  have  so  much  <>f  the  adjudica- 
tion as  is  againsl  him  reviewed  upon  appeal.24 

Where  dalaages  for  an  infringement  are  prayed,  the  hill 
must  show  that  notice  to  the  public  was  given  by  the  plain- 
tiff, by  affixing  the  word  "patented;'  together  with  the  day  and 
year  the  patent  was  granted,  npon  each  patented  article  made 
'or  sold  by  him,  which  is  covered  by  the  patent  in  suit,  or  when, 
from  the  character  of  the  article,  this  conld  not  be  done,  by 
affixing  to  it,  or  to  the  enclosing  package,  a  label  containing 
the  same  notice;  or  else  that  the  defendant  was  duly  notified 
of  the  infringement  and  continued  after  the  notice  to  make, 
use  or  vent  the  article  so  patented.25  Such  notice  is  not  essen- 
tial where  the  city  seeks  an  injunction  without  any  demand 
for  profits  or  damages ; 26  and  without  such  marking  or  any  al- 
legations concerning  the  same,  an  accounting  may  he  decreed 
because  of  infringements  committed  after  the  filing  of  the  bill.27 

The  history  of  the  invention,  and  a  description  of  patents 
issued  to  the  complainant  before  that  sued  upon,  were  held  to 
be  proper  averments.28  So  were  the  grant  of  foreign  patents 
for  the  same  invention  and  acquiescence  therein  in  this  and 
other  countries.29  It  was  also  held  proper  to  describe  previous 
litigation  over  the  same  or  similar  patents.30     The  bill  need 


24  Page    Mach.   Co.   v.   Dow.  Jones 
&    Co.,    C.   C.   A...    168    Fed.    703. 

25  u.  S.  R.  S.;  §  4900.  Sprague 
v.  Bramhall-Deane  Co..  133  Fed. 
738;  Streat  v.  Finch.  Young  &  Mc- 
Con?ille,  154  Fed.  378:  G.  Heileman 
Brewing  Co.  v.  Independent  Brewing 
Co..  C.  C.  A.,  191  Fed.  40  1.  Where 
the  bill  admitted  that  the  complain- 
ant had  made  and  sold  the  patented 
articles,  without  alleging  compliance 
with  the  statutory  requirement  con- 
cerning marking  the  same:  but  al- 
leged that  dtefendant  continued  to 
infringe  after  due  notice,  and  omit- 
ted to  give  the  date  bf  such  notice; 
it  was  held:  that  an  admission  by 
the  defendant  of  notice  did  not  re- 
lieve complainant  from  the  harden 
of  proving  the  dale:  and  that  where 


that  question  was  not  adjudicated 
by  an  interlocutory  decree  finding 
infringement  and  directing  an  ac- 
counting, the  date  must  be  proved 
before  the  Master  to  afford  any 
basis  for  an  accounting.  Lorain  Steel 
Co.  v.  N.  Y.  Switch  &  Crossing  Co., 
153  Fed.  205 

26  Morton  Tr.  Co.  v.  Am.  Car  & 
Foundry    Co..    1161    Fed.    540. 

27  Maimen  v.  Union  Special  Mach. 
Co.,  C.  C.  A.,  105  Fed.  440. 

28  Steam  G.  &  L.  Co.  v.  McRob- 
erts,    26    Fed.    765. 

29  Peters  v.  Chicago  Biscuit  Co., 
142    Fed.    779. 

30  Steam  G.  &  L.  Co.  v.  MeRob- 
erte,  20  Fed.  7.65;  Am.  Bell  Tel. 
Co.   v.    So.    Tel.    Co..    34    Fed.    803. 


§  H6] 


V  A  TEXT    CASES. 


531 


not  allege  that  the  invention  had  not  been  abandoned  before  the 
grant  of  the  patent.31  It.  was  held  at  Circuit  that  in  a  bill 
founded  upon  a  reissued  patent  it  is  not  necessary  to  aver 
specifically  the  ground  upon  which  the  original  patent  wa-  sur- 
rendered;82 hut  if  such  a  hill  shows  a  delay  of  more  than  two 
years  in  the  application  for  the  reissue;33  or  in  the  patent  of- 
fice,34 it  must  allege  sufficient  excuse  for  the  delay.  Where  the 
hill  shows  such  a  relation  between  the  defendants  and  the  pate 
entees  as  to  estop  the  former  from  denying  the  validity  of  the 
patent,  a  specific  allegation  of  such  estoppel  is  not  necessary.35 
The  objection,  that  a  hill  for  infringement  does  not  show  upon 
which  of  the  claims  of  the  patent  the  complainant  relies,  is  not 
a  ground  for  dismissing  the  hill,  but  should  he  raised  hv  a  mo- 
tion  to  require  the  complainant  to  specify  such  claims.36     When 


But    see    Western    El.    Co.    v.    Wil- 
liams-Abbott  El.    Co.,    83    Fed.    842. 

31  Fichtel  v.  Barthel,  173  Fed. 
489. 

32  Spaeth  v.  Barney.  22  Fed.  828. 
Upon  a  demurrer  for  both  uncer- 
tainty and  want  of  equity  to  a  bill 
founded  upon  a  reissued  patent, 
when  the  only  allegations  concern- 
ing the  reissue  were  "that  said 
Charles  T.  Day  having,  for  good 
and  lawful  cause  and  with  the 
consent  and  approbation  of  your 
orator,  surrendered  said  letters- 
pfatent  to  the  Commissioner  of 
Patents,  and  having  made  due  ap- 
plication therefor,  and  having  in 
all  things  complied  with  the  acts 
of  Congress  in  such  case  made  and 
provided,  did,  on  the  eighteenth  of 
February,  187!).  obtain  new  letters- 
patent,  being  reissued  letter— pat- 
ent, for  the  same  invention  for  the 
residue  of  said  term,  and  which 
were  marked  "reissue.  Xo.  8. .V.HI.' 
and  were  isslied  in  due  form  of 
law  to  your  orator,  as  assignee, 
under  the  seal  of  the  patent  cSfice 
of  the  United  States,  signed  by 
the    Secretary    of   the    Interior    and 


countersigned  by  the  Commis- 
sioner of  Patents,  and  hearing  date 
the  day  and  year  aforesaid,  as  by 
the  last  mentioned  reissued  let- 
ters-patent, ready  here  in  court  to 
be  produced,  will  appear:"  it  was 
held  that  the  bill  was  not  objection- 
able. The  court  then  said:  "It  is 
not  necessary  to  aver,  specifically', 
the  ground  on  which  the  original 
patent  was  surrendered.  The  reis- 
sue of  letters-patent  by  the  Commis- 
sioner is  prima  facie  evidence  that 
such  reissue  is  founded  on  sufficient 
cause,  and  is  in  accordance  with  law. 
It  is  also  presumed  that  the  Com- 
missioner acted  within  his  statu- 
tory authority  until  the  contrary  is 
proved."     Ibid! 

33  Wollensak  v.  Reiher.  LIS  LT.  S. 
90.   29   L.  ed.   350. 

34(,andy  v.  Marble.  122  I".  S.  432. 
30    L.  ed.    1223. 

35  Climax  Lock  &  Ventilator  Co. 
v.  Ajax  Hardware  Mfg\  Co.,  102  Fed. 
126. 

86 Maicobi  Wireless  Tel.  Co.  v. 
Xew  England  NevJ  Co.,  191  Fed. 
194. 


r.32 


BILLS    IX    EQUITY. 


[§    1±6 


there  is  no  other  ground  for  equitable  relief,  the  court  of  equity 
has  no  jurisdiction  of  a  suit  upon  a  contract  for  royalties,37 
nor  for  an  accounting  by  an  infringement  of  a  patent.33  Con- 
sequently, after  the  expiration  of  a  patent,  when  an  injunction 
can  no  longer  be  granted  against  further  infringements,  a  bill 
for  an  accounting  by  an  infringer  will  not  be  sustained.39  But 
where  infringing  articles,  made  when  the  patent  was  in  force, 
are  in  the  defendant's  possession,  equity  may  take  jurisdiction, 
since  the  right  to  an  injunction  there  exists.40  A  bill  praying 
an  injunction  and  an  accounting,  filed  only  a  few  days  before 
the  expiration  of  a  patent,  may,  in  the  discretion  of  the  court, 
be  sustained  by  a  decree  for  an  accounting  only,  although  the 
patent  has  expired  before  the  hearing,  provided  that  it  was 
possible  to  obtain  equitable  relief  during  the  life  of  the  pat- 
ent.41 It  has  been  so  held  of  bills  filed  four  months  and  live 
days,42  between  two  and  three  months,43  "a  few  weeks," 44 
forty-eight  days,45  fifteen  days,46  before  the  patent's  expiration; 
or  even  one  day  before,  when  the  bill  alleged  that  complainant 


87Safford  v.  Enaign  Mfg.  Co.,  G. 
C.  A.,  120  Fed.  480;  Allen  v.  Con- 
sol.  Fruit  Jar  Co.,  145  Fed.  948, 
where  the  cancellation  of  patents 
was  also  prayed. 

38  Root  v.  Railway  Co.,  105  U.  S. 
189,  26  L.  ed.  975;  Brooks  v.  Miller, 
28    Fed.   015,    017. 

39  Ibid. 

40  New  Jersey  Patent  Co.  v.  Mar- 
tin, 172  Fed.  700;  Root  v.  Railway 
Co.,  105  U.  S.  189,  20  L.  ed.  075; 
Clark  v.  Wuoster,  119  U.  S.  322, 
325,  30  L.  ed.  392.  393;  X.  Y.  Belt- 
ing &  Packing  Co.  v.  Magowan,  27 
Fed.  Ill;  American  D.  R.  B.  Co.  v. 
Rutland  Marble  Co..  2  Fed.  350; 
American  D.  R.  B.  Co.  v.  Sheldon.  1 
Fed.  870:  Crossley  v.  Derby  Gas 
Light  Co.,  4  L.  J.  Cb.  (X.  S.)  25. 
But  see  Westinghouse  v.  Carpenter, 
43   Fed.  894.  and  infra,   §  277. 

41  Beedle  v.  Bennett.  122  U.  S. 
71,  30  L.  ed.  1074:  (lark  v.  YVoost- 
er.   1  111  U.  S.  322,  324.  30  L.  ed.  392; 


Busch  v.  Jones,  184  U.  S.  598,  46  L. 
ed.  707;  Westinghouse  Air  Brake 
Co.  v.  Carpenter,  32  Fed.  4S4,  per 
Brewer,  J.;  Kittle  v.  De  Graaf.  30 
Fed.  689,  per  Coxe,  J.;  Adams  v. 
Bridgewater  Iron  Co.,  26  Fed.  324; 
Brooks  v.  Miller.  28  Fed.  615,  617; 
Russell  v.  Kern,  C.  C.  A.,  69  Fed. 
94. 

42Chinnock  v.  Patterson,  P.  &  S. 
Tel.  Co..  C.  C.  A.,  Third  Circuit, 
112  Fed.  531. 

43  Ross  v.  Fort  Wayne,  C.  C.  A.. 
Seventh  Circuit,  63  Fed.  466;  Car- 
negie Steel  Co.  v.  Colorado  Fuel  & 
Iron  Co.,  C.  C.  A.,  165  Fed.  195. 

44  Huntington  Dry  Pulverizer 
Co.  v.  Virginia.  Carolina  Chem- 
ical  Co.,    130   Fed.   558    ( D.   X.  J.). 

45  Am.  Sulphite  Pulp  Co.  v. 
Crown-Columbia  Pulp  &  Paper  Co., 
169    Fed.   140. 

46  Clark  v.  YVooster,  119  U.  S. 
322,  30  L.  ed.  392 


§   1-46]  patent  cases.  533 

had  not  used  its  patent  and  had  sustained  no  actual  damage  by 
the  infringement;  although  it  did  not  appear  that  any  motion 
for  a  preliminary  injunction  was  made.47     On  the  other  hand, 
bills  were  dismissed  when  no  applications  for  preliminary  in- 
junctions  were    made    and    the   suits    were   begun    within'  two 
months,48     twenty-nine     days,49    twenty-two     ofays,50    fourteen 
days,51  thirteen  days,52  eleven  days,53  ten  days,54  and  five  days,55 
respectively,   before   the   expiration   of  the   patent.      The  fad 
that,  under  the  practice  of  the  court  requiring  a  certain  notice, 
no   injunction   could   possibly   have   been   obtained   before    the 
expiration    of   the    patent,    may   justify    the    dismissal    of   the 
bill:56     Allegations  that  complainant  derives  his  benefit  from 
the  patent  through  a  limited  granting  of  licenses  does  not  de- 
prive equity  of  jurisdiction  by  showing  that  he  has  an  adequate 
remedy  at  law,  when  it  appears  that  there  is  no  established 
license  fee  for  all  users,57  and  even,  it  has  been  held,  when  there 
is  no  allegation  upon  the  subject   in   the  bill.58      The  discon- 
tinuance of  the  infringement  shortly  before  the  commencement 
of  the  suit  does  not  deprive  the  complaint  of  his  remedy  for  an 
injunction    and    accounting   of   the   profits   previously   made.59 
All  persons  who  have  acted  jointly  in  the  infringement  of  a 
patent  may  be  made   defendants   in   the   same  suit.60      It   has 

47  Tompkins   v.   International   Pa-  55  Burdell    v.    Comstock,    15    Fed. 

per  Co.,  C.  C.  A.,  183  Fed.  773.  395. 

«  Racine     Seeder     Co.     v.     Joliet  56  Clark    v.    Wooster.    119    U.    S. 

Wire  Cheek  Rower  Co.,  27  Fed.  367.  322,   324,   30  L.   ed.  392;    American 

49Keyes  v.  Eureka  Con.  Min.  Co.,  Cable  Ry.  Co.    v.   Citizens'  Ry.  Co.. 

158   U.   S.   150,    153.   39   L.   ed.   929,  44  Fed.  484;   Keyes  v.  Eureka  Con. 

930;   affirming  45  Fed.'  199.  Min.    Co.,    45    Fed.    199;     American 

50  McDonald    v.    Miller,    84    Fed.  Cable   Ry.   Co.  v.   Chicago  City   Ry. 
344-  Co.,  41  Fed.  522;  Russell  v.  Kern.  C. 

51  Am.    Cable   Ry.   Co.   v.    Chicago  C.   A.,   64    Fed.   581  ;    s.   c.   69    Fed. 
City    Ry.    Co.,    41    Fed.    522.  94;     McDonald    v.    .Miller.    84    Fed. 

52  Miller    v.    Scliwarner.    130    Fed.  344. 

•~),n-  57  Am.      Sulphite      Pulp      Co.     v. 

53  Diamond    Stone    Sawing    Mach-       Crown-Columbia   Pulp  &   Paper  Co.. 
ine  Co.  v.  Seus.  159  Fed.  497;   Beid-       169  Fed.  140. 

Archer  Co.  v.  North   Amer.   Chemi-  58  Peters   v.    Chicago   Biscuit   Ce- 
cal &  Eng.  Co.  et  al.,   147  Fed.  746.  142    Fed.    779. 

54  Overweight  Counterbalance  Ele-  59  Saxlehner    v.    Eisner.    140    Fed. 
vator    Co.    v.    Standard    Elevator   &  938. 

Mfg.  Co..  96   Fed.  231.  60  Climax   Lock   &    Ventilator   Co. 


534 


BILLS    l.\    EQUITY. 


[§   l-±<3 


been  held  that  an  improper  joinder  of  applicants  for  a  patent 
is  a  purely  technical  defense  which  should  fiat  be  favored  after 
the  patent  has  been  assigned,61  but  it  was  held  that,  in  the  same 
bill,  complainant  could  not  join  a  prayer  for  relief  against  in- 
terference with  a  request  that  the  commissioner  grant  a  reissue 
of  a  patent;62  nor  a  prayer  for  an  injunction  against  infringe- 
ment with  one  for  specific  performance  of  an  agreement  by  a 
licensee.63 

A  bill  to  enjoin  the  infringement  of  several  distinct  patents 
under  the  former  practice  was  held  multifarious ; 64  but  if  all 
the  patents  are  infringed  in  the  use  of  or  manufacture  of  a 
single  machine,  process,  manufacture,  or  compensation  of  mat- 
ter and  it  is  so  alleged,  the  bill  is  good;65  even  if  one  has  ex- 
pired;66 and  although  one  is  for  a  process  and  the  other  for 
a  product.67  It  has  been  said  that  the  complainant  "should 
aver  that  said  inventions  are  capable  of  conjoint  as  well  as 
separate  use,  and  are  so  used  by  the  defendant," 68  but,  be- 
fore the  new  Equity  Rules,  a  general  allegation  of  their  in- 
frinffement  collectively  was  usuallv  held  to  be  sufficient.69     An 


v.  Ajax  Hardware  Mfg.  Co.,  102 
Fed.  12fi,  corporations  who  had 
acted  jointly  with  the  patentees, 
who  had  assigned  their  patents  to 
them. 

BlSieber  &  Trussel  Mfg.  Co.  v. 
Chicago  Finder  &  File  Co.,  177  Fed. 
430. 

62(!old  v.  Cold.  181   Fed.  544. 

63  Indiana  Mfg.  Co.  v.  Nichols  & 
Shepard    Co..    190   Fed.    579. 

64  Quoted  with  approval  in  Pvob- 
inson  v.  Chicago  Rys.  Co..  C.  C.  A.. 
174    Fed.    40.   42:    Haves    v.   Dayton. 

5  Fed.  702:  Shickle  v.  South  St. 
Louis  F.  Co.,  22  Fed.  105:  Thomas 
IT.  El.  Co.  v.  Sperry.  $6  Fed.  75: 
Louden    M.    Co!    v.    Montgomery    W. 

6  Co..  96  Fed.  232.  But  see  Eq. 
Rule  28,  si(prd-,  §   1'39. 

65  Report*  d  with  approval  in 
Robinson  vi  Chicago  Kys.  Co..  C.  C. 
A.  174  Fed.  40.  42:  Xoursc  v.  Al- 
len,   4    Blatehf.    C.    C.    370:     Perry 


v.  Corning.  7  Blatehf.  C.  C.  195; 
Case  v.  Redfield.  4  McLean,  52(5; 
Camewell  F.  A.  Tel.  Co.  v.  Chilli- 
cothe,  7  Fed.  351:  Nellis  v.  Mc- 
Lanahan.  6  Fisher's  Pat.  Cas.  280; 
Diamond  Match  Co.  v.  Ohio  M.  Co., 
80  Fed.  117:  Edison  Phon.  Co.  v. 
Victor  Talking  Macli.  Co..  120  Fed. 
.305:  American  Craphophone  Co.  v. 
Leeds  &  Catlin  Co..  131  Fed.  2S1. 
See  U.  S.  v.  Am.  Bell  Tel.  Co.,  128 
U.  S.  315,  32  L.  ed.  450. 

66  Hunting  Dry  Pulverizer 
Co.  v.  Virginia-Carolina  Chemical 
Co.,    130    Fed.    558. 

67  Am.  Graphaplione  Co.  v.  Leeds 
&  Catlin  Co..  131   Fed.  281. 

68Camowell  F.  A.  Tel.  Co.  v. 
Chillirothe.  7  Fed.  351:  Neilfc  v. 
McLanahan,  6  Fisher's  Pat.  Cas. 
280:  Robinson  v.  Chicago  Rys.  Co., 
C.  C.  A..   174   Fed.  40.  42. 

69  T.utr'n    v.    Sharp.    200    Fed.    151. 


§  146] 


PAT  K.N ;T   CASES. 


:,:;; 


amendment  adding  such  an  averment  will  be  allowed.70  A 
charge  of  infringement,  and  a  prayer  for  an  injunction  and 
accounting  accordingly,  may  be  joined  with  a  charge  of  inter- 
ference and  a  prayer  for  relief  against  the  same.71  A  bill 
seeking  an  injunction  with  damages  against  the  infringement 
of  a  patent,  and  an  injunction  with  damages  against  the  pub- 
lication of  libelous  circulars  affecting  plaintiffs  patent  has 
been  held  multifarious.72  A  bill  seeking  an  injunction  against 
the  infringement  of  a  patent  and  the  infringement  of  a  trade- 
mark was  held  not  multifarious  when  the  allegations  as  to  both 
related  to  the  same  subject-matter ; 73  but,  it  was  held,  that  a 
complaint  could  not  join  a  cause  of  action  for  the  infringement 
of  a  patent  with  another  for  unfair  competition  in  trade,  al- 
though both  related  to  the  same  subject-matter,74  although  this 
might  be  done  when  the  unfair  competition  was  incidental  to 
the  infringement.  For  example,  an  imitation  of  the  form  75 
and  design,76  and  of  pictures  of  the  device  in  catalogues,77  but 
not,  it  has  been  held,  when  the  defendant  is  sued  in  a  different 
district  from  that  of  his  residence  and  neither  party  resides 


70  Union  L.  &  S.  Co.  v.  Philadel- 
phia R.  Co..  OS  Fed.  914;  Electric 
Goods  Mfg.  Co.  v.  Benjamin  El- 
ectric Mfgi  Co.,  100  Fed.  832. 

71  teach  v.  Chandler.  18  Fed. 
-202:  Holiday  v.  Pickhardt.  29  Fed. 
853;  Swift  v.  Jenks,  29  Fed.  642; 
American  Roll  Paper  Co.  v.  Knopp, 
44  Fed.  609..  612;  Stoheme'tz  P.  M. 
Co.  v.  Brown  F.  M.  Co..  46  Fed.  72. 

72  Fougeres  v.  Murbarger,  44 
Fed.  292.  See  International  T.  C. 
Co.    v.    Carmichael.    44    Fed.    349. 

73  Jaros  H.  U.  Co.  v.  Fleece  H.  U. 
Co..  6(1  Fed.  022:  Adam  v.  Folger, 
120  Fed.  260:  G lobe- Wernicke  Co. 
v.  Fred  Macey  Co.,  C.  C.  A..  119 
Fed.  090.  703.  50  C.  G.  A.  304;  T. 
B.  Woods  Sons  Co.  v.  Valley  Iron 
Works.  166  Fed.  770.  Contra.  Cush- 
man  v.  Atlantis  Fountain  Pen  Co., 
104  Fed.  94:  Mecky  v.  Grabowski. 
177  Fed.  591.     Sec  supra,  $$  24.  142. 


74  Ball  &  S.  F.  Co.  v.  Cohen,  90 
Fed.  064;  C.  L.  King  &  Co.  v. 
Inlander,  133  Fed.  416;  Cushman  v. 
Atlantis  Fountain  Pen  Co.,  164  Fed. 
94:  Mecky  v.  Grahowski.  177  Fed. 
591  ;  National  Casket  Co.  v.  X.  V. 
&  Brooklyn  Casket  Co.,  18.",  Fed. 
533.  See  supra,  §§  24.  142.  See. 
however,  Keashy  &  Mattison  Co.  v. 
Phillip  Cary  Mfg.  Co.,  113  Fed. 
432;  C.  L.  King  &  Co.  v.  Inlander. 
133  Fed.  410. 

75  T.  B.  Woods  Sons  Co.  v.  Valley 
Iron  oWrks.  166  Fed.  770;  Lovell- 
McConnell  Mfg.  Co.  v.  Automobile 
Supply   Mfg.    Co.,    193   Fed.    058. 

76Lovell-McConnell  Mfg.  Co.  v. 
Automobile  Supply  Mfg.  Co..  193 
Fed.  658. 

77  Climax  Lock  &  Ventilator  Co. 
v.  Ajax  Hardware  Mfg.  Co.,  192 
Fed.    126. 


536  BILLS   IN   EQUITY.  [§    147 

in  the  same.78  Under  the  former  practice  it  was  held  as  fol- 
lows :  A  bill  to  set  aside  a  contract  for  a  partnership  in  royal- 
ties, which  also  prayed  an  account  of  matters  collected  under 
a  verbal  understanding  before  the  date  of  the  contract,  is  not 
multifarious;79  nor  a  bill  for  an  infringement,  which  also 
pleads  a  contract,  in  which  it  is  alleged  that  defendants  have 
agreed  not  to  contest  the  validity  of  the  patent.80  A  supple- 
mental bill  against  a  new  defendant,  to  whom  the  original 
defendant  had  transferred  its  property,  pending  the  suit,  which 
prayed  an  injunction  against  the  use  of  plaintiff's  patents,  and 
that  it  be  obliged  to  pay  the  damages  caused  by  its  predeces- 
sor's infringement ;  was  multifarious.81  Where  a  bill  set  out 
a  contract  relating  to  certain  patents,  and  asked  specific  per- 
formance thereof  against  several  parties,  but  also  contained 
expressions  looking  to  relief,  as  in  a  suit  for  infringement,  it 
could  not  be  sustained  as  a  bill  with  a  double  aspect,  because 
the  determination  of  who  are  proper  parties  must  be  made  from 
different  standpoints  in  the  two  kinds  of  bills.82  Persons  who 
are  acting  in  concert  as  employees  of  the  same  corporation  in 
the  infringement  of  a  patent  may  be  joined  as  defendants  to 
the  same  bill.83  An  averment  that  two  parties,  one  of  whom  is 
an  officer  of  the  other,  have  infringed  a  patent,  is  a  sufficient 
allegation  that  their  infringement  was  joint.84 

§  147.  Bills  to  compel  the  issue  of  patents  and  bills  to 
obtain  relief  against  interfering  patents.  Whenever  a  pat- 
ent on  application  is  refused,  either  by  the  Commissioner  of 
Patents  or  by  the  Supreme  Court  of  the  District  of  Columbia 
upon  appeal  from  the  Commissioner,  the  applicant  may  have 
remedy  by  bill  in  equity;  and  the  court  having  cognizance 
thereof,  on  notice  to  adverse  parties  and  other  due  proceedings 
had,  may  adjudge  that  such  applicant  is  entitled,  according  to 
law,  to  receive  a  patent  for  his  invention,  as  specified  in  his 
claim,  or  any  part  thereof,,  as  the  facts  in  the  case  may  appear. 

78  Woerheide  v.  H.  W.  Johns-Man-  Crosman.    C.    C.    A.,    61    Fed.    888; 
ville  Co..  TOO   Fed.  535.  s.  c,  57  Fed.   1021. 

79  Patton  v.  Glaiitz,   56  Fed.   367.  83  Poppenhusen       v.       Falke,       4 

80  Dunham    v.   Rent.   72   Fed.   60.  Blatchf.  493. 

81  Western  Telephone  Mfg.  Co.  v.  84  Thomson-Houston     El.     Co.     v. 
Am.  El.  Tel.  Co..  137  Fed.  603.  Electrose  Mfg.  Co.,  155  Fed.  543. 

82  American     Box     Mach.     Co.     v. 


I  147]  PATENT  CASES.  537 

And  such  adjudication,  if  it  be  in  favor  of  the  right  of  the  ap- 
plicant, shall  authorize  the  Commissioner  to  issue  such  patent 
on  the  applicant  filing  in  the  patent-office  a  copy  of  the  adjudi- 
cation, and  otherwise  complying'  with  the  requirements  of  law. 
In  all  cases,  where  there  is  no  opposing  party,  a  copy  of  ihc 
bill  shall  be  served  on  the  Commissioner;  and  all  the  expenses 
of  the  proceeding  shall  be  paid  by  the  applicant,  whether  the 
final  decision  is  in  his  favor  or  not."'1  "Whenever  there  are 
interfering  patents,  any  person  interested  in  any  one  of  them, 
or  in  the  working  of  the  invention  claimed  under  either  of  them, 
may  have  relief  against  the  interfering  patentee,  and  all  parties 
interested  under  him,  by  suit  in  equity  against  the  owners  of 
the  interfering  patent ;  and  the  court,  on  notice  to  adverse  par- 
ties, and  other  due  proceedings  had  according  to  the  course  of 
equity,  may  adjudge  and  declare  either  of  the  patents  void  in 
whole  or  in  part,  or  inoperative,  or  invalid  in  any  particular 
part  of  the  United  States,  according  to  the  interest  of  the 
parties  in  the  patent  or  the  invention  patented.  But  no  such 
judgment  or  adjudication  shall  affect  the  right  of  any  person 
except  the  parties  to  the  suit  and  those  deriving  title  under 
them  subsequent  to  the  rendition  of  such  judgment."  2  The  act 
creating  the  Court  of  Appeals  for  the  District  of  Columbia, 
with  power  to  entertain  appeals  from  the  decisions  of  the  Com- 
missioner of  Patents  in  the  cases  mentioned  in  these  two  sec- 
tions of  the  Revised  Statutes,  did  not  repeal  them.3  Such  a 
bill  should  not  be  brought  until  the  determination  of  an  appeal 
to  the  District  Court  of  Appeals,4  and  it  is  the  safer  practice 
not  to  file  the  same  until  after  the  Commissioner  has  obeyed 
the  mandate  of  that  Appellate  Court.5  But  where  adverse  de- 
cisions in  interference  proceedings  have  been  made  against  an 
applicant  for  a  patent  by  the  examiners,  the  patent  office  eom- 

§    147.      U".   S.   R.   S..    §    4015,    5  2TJ.   S.   R.   S..   §   4918,   5   Fed.    St. 

Fed.    St.    Ann.    507,     Pierce's    Fed.  Ann.  526,  Pierce's  Fed.  Code,  §  S7S3. 

Code,   §   S7S0;    Ruristetler  v.  Atkin-  3  McKnight    v.    Metal    Volatiliza- 

son,   23   Oft".   Gaz.    1025;    Greeley   v.  tion    Co.,    128    Fed.    51;     Dover    v. 

Commissioner.  6   Fisher,  675;    s.  c,  Greenwood,    143    Fed.    136. 

1   Holmes.  284:    Ex  parte  Arkell,  15  4  Smith    v.    Muller,    75    Fed.    612; 

Blatchf.    437:    Butterworth    v.   Hill,  McKnight   v.  Volatilization  Co.,  122 

114   l".   S.    128.   29    L.  ed.   119;    Hill  Fed.   51. 

v.    Wooster,    132    I".    S.    693.    33    L.  5  Bernardin    v.   Xorthall.    77    Fed. 

ed.  502.     See  §  39  supra,  §  279  infra.  849. 


5S8  BII.T.S    IX    EQUITY..  [§    147 

missioner  and  the  Court  of  Appeals  of  the  District  of  Columbia 

on  appeal,  he  may  maintain  a  bill  in  equity  in  a  District  Court 
of  the  United  States  without  waiting  for  the  formal  action  of 
the  Patent  Office  [refusing  his  application.6  Where  there  is  no 
opposing  partv.  a  copy  ©if  the  bill  should  be  served  on  the  com- 
missioner, and  it  is  the  better  practice  to  name  him  and  per- 
haps also  the  Secretary  of  the  Interior,  as  parties  defendant.7 
The  Commissioner  of  Patents  is  not  a  necessary  party  when 
there  is  a  party  to  oppose  the  bill  to  compel  the  issue  of  a  pat- 
ent.8 or  in  an  interference  case.9  but  when  the  patent  has  been 
issued  and  assigned,  the  assignee  is  a  necessary  party.10  When 
there  is  an  opposing  party,  costs  are  usually  awarded  to  the  one 
who  preyails.11  The  fact  that  the  two  parties  to  the  inter- 
ference proceeding  have  united  the  interests,  and  neither  of 
them  has  opposed  the  bill,  does  not  deprive  the  District  Court 
of  jurisdiction,  nor.  at  last  when  that  matter  is  disclosed  to 
it,  does  it  render  its  decree  subject  to  collateral  attack.12  Such 
a  bill  presents  a  case  of  original  equitable  jurisdiction;  not 
an  appeal.13  The  statutes  do  not  authorize  an  injunction 
against  the  issue  of  a  patent  by  the  Commissioner  to  some  one 
other  than  the  plaintiff.14  Ppon  an  application  to  compel  the 
i<<ue  of  a  patent,  when  application  is  made  to  have  the  bill 
taken  pro  confesso.  the  court  may  require  a  copy  of  the  pro- 
ceedings in  the  patent-office  and  call  for  any  competent  eyidence 
that  the  complainants  may  wish  to  offer.15  The  decision  is 
subject  to  the  ordinary  Equity  Rules  that  the  evidence  must 
be  relevant  to  the  issues  made  by  the  pleading,  and  proof  can- 
not be  admitted  which  tends  only  to  show  that,  because  of  the 
prior  state  of  the  art,  neither  party  is  entitled  to  a  patent.16 
The  court  has  power  to  decide  the  questions  of  priority  with- 

6McKnight  v.  Metal  Totalization  Western  Glass  Co..  178  Fid.  073:  s. 

Co..    128    Fed.    51.  c.   178   Fed.  077. 

7  Gaudy  v.  Marble.  122  V.  S.  432.  13  Wheatop  v.  Kendall.  85  Fed. 
7  Sup.  Ct.  1200.  30  L.  ed.  1223:  666,  671;  Appert  v.  Brownsville 
Davis  v.  Garrett.  152  Fed.  72:1.  725.  Plate  <;ia><  Co..  144  Fed.  115, 

8  Graham  v.  Teter,  25  Fed.  555.  14  Illingworth    v.    Atha,    42    Fed. 

9  Butler  v.  SI, aw.  21    Fed.  321.  141.    14-1. 

lOGraham   v.  Teter.   2.1   Fed.   555.  is  Da\  i>  v.  Garrett,  152  Fed.  723, 

See    Illingworth    v.    Atha,    42    Fed.  725. 

'41.    145.  l6Riehards  v.  Meissner.   163  Fed. 

11  Butler  v.  Shaw,  21   Fed.  321.  057. 

12  Schmertz     Wire     Glass     Co.     v. 


§  148] 


TIJADE-MAIJK   CASES.  539 


out   any  exceptions  or  limitations;   and  when  the  decision  pf 
the  patent  office  is  based   upon  questions  of  law  rather   than 
upon    any    distinct    finding    0f    priority,    Circuit    Court    will 
make  an  independent  examination  of  the  testimony  and  rawh 
its   own  conclusions.17      It   has  been   said:   that   such   decision 
must  be  given  weight  in  the  nature  of  a  departmental  decision 
and,  to  overcome  it,  the  evidence  must  be  of  such  character, 
and  sufficient  at  least  to  require  a  clear  conviction  that  it  wae 
erroneous.18     Such  a  suit  is  a  plenary  suit  in  equity,  to  whirl 
all  the  rules  of  practice  and  evidence  in  such  suits  apply    ami 
a  party  cannot  be  deprived  of  the  right  to  cross-examine  his 
opponent's  witnesses  by  the  introduction  of  the  proofs  taken  in 
the  patent  office,  unless  they  are  otherwise  admissible  as  second- 
ary evidence.19    It  has  been  held  that  a  bill  to  compel  the  issue 
of  a  patent  which  has  been  refused,  must  be  filed  within  one 
year  after  the  refusal.20 

§   148.  Bills   to   restrain   infringements   of  trade-marks. 
Ihe  Trade-Mark  Law  of  March  2,  1907,  provides:  "That  the 
Circuit  and  Territorial  Courts  of  the  United  States  and  the  Su- 
preme Court  of  the  District  of  Columbia  shall  have  original 
jurisdiction,  and  the  Circuit  Courts  of  Appeal  of  the  United 
States  and  the  Court  of  Appeals  of  the  District  of  Columbia 
shall  have  appellate  jurisdiction  of  all  suits  at  law  or  in  equhv 
respecting  trade-marks  registered  in  accordance  with  the  pr,', 
visions  of  this  Act,  arising  under  the  present  Act,  without  re- 
gard to  the  amount  in  controversy."  J    "That  the  several  courts 
vested    with   jurisdiction    of   cases    arising    under  the    present 
Act  shall    have   power  to  grant   injunctions,   according  to   the 
course  and  principles  of  equity,  to  prevent  the  violation  of  any 
right  of  the  owner  of  a  trade-mark  registered  under  this  Act, 


600 


I'Wheaton    v.    Kendall.    85    Fed.  20  VYestinghouse    El.    &    Mfg.    Co. 

6-  V     Ohio    Brass    Co.,    ISO    Fed.    ols- 

18  Greenwood  v.  Dover,  C.  C.  A.,  citing  U,  S.  R.  S..  §  4S04.  as  amend- 
194  Fed.  91.  But  it  has  been  said  ed  20  St.  at  L.  092.  §  4,  5  Fed.  St. 
that  it  should  he  followed,  unless  Ann.  488,  Comp.  St!  3384  Fierce 
the   contrary    is   established    by   evi-  Fed.   Code.   §   8700. 

denee    which    carries    thorough    con-  §   148.     134   St.  at  L.   1251    §    17 

T.etion.    Richards    v.    Meissner,    103  Pierce's   Fed.    Code,    §   8823 
Fed.    0.V7. 

19  Dover   v.    Greenwood,    177    Fed. 
940. 


540  BILLS    IX    EQUITY.  [§    148 

on  such  terms  as  the  court  may  deem  reasonable;  and  upon 
a  decree  being  rendered  in  any  such  case  for  wrongful  use  of 

a  trade-mark  the  complainant  shall  be  entitled  to  recover,  in 
addition  to  the  profits  to  be  accounted  for  by  the  defendant, 
the  damages  the  complainant  has  sustained  thereby,  and  the 
court  shall  assess  the  same  or  cause  the  same  to  lie  assessed 
under  its  direction;  The  court  shall  have  the  same  power 
tn  increase  such  damages,  in  its  discretion,  as  is  oiven  bv  sec- 
tion  sixteen  of  this  Act  for  increasing-  damages  found  by  ver- 
dict in  actions  of  lav;  and  in  assessing  profits  the  plaintiff 
snail  be  required  to  prove  defendant's  sales  only:  defendant 
must  prove  all  elements  of  cost  which  are  claimed.'"2  "That 
in  any  ease  involving  the  right  to  a  trade-mark  registered  in 
accordance  with  the  provisions  of  this  Act,  in  which  the  ver- 
dict has  been  found  for  the  plaintiff,  or  an  injunction  issued. 
the  court  may  order  that  all  labels,  -igns.  prints,  packages, 
wrappers,  or  receptacles  in  the  possession  of  the  defendant, 
bearing  the  trade-mark  of  the  plaintiff  or  complainant,  or  any 
reproduction,  counterfeit,  copy,  or  colorable  imitation  thereof, 
shall  be  delivered  up  and  destroyed.  Any  injunction  that  may 
be  granted  upon  hearing,  after  notice  to  the  defendant,  to  pre- 
vent the  violation  of  any  right  of  the  owner  of  a  trade-mark 
registered  in  accordance  with  the  provisions  of  this  Act.  lvv 
any  circuit  court  of  the  United  States,  or  by  a  judge  thereof, 
may  be  served  on  the  parties  against  whom  such  injunction 
may  lie  granted  anywhere  in  the  United  States  where  they  may 
be  found,  and  shall  be  operative,  and  may  be  enforced  by  pro- 
ceedings to  punish  for  contempt,  or  otherwise,  by  the  court 
by  which  such  injunction  was  granted,  or  by  any  other  circuit 
court,  or  judge  thereof,  in  the  United  States,  or  by  the  supreme 
court  of  the  District  of  Columbia,  or  a  judge  thereof.  The- 
said  courts,  or  judges  thereof,  shall  have  jurisdiction  to  en- 
force said  injunction,  as  herein  provided,  as  fully  as  if  the  in- 
junction had  been  granted  by  the  circuit  court  in  which  it 
i-  sought  to  be  enforced.  The  clerk  of  the  court  or  judge  grant- 
ing the  injunction  shall,  when  required  to  do  so  by  the  court 
before  which  application  to  enforce  said  injunction  is  made, 
transfer  without  delay  to  said  court  a  certitied  copy  of  all 
the  papers  on  which  the  said  injunction  was  granted  that  are 

2  Ibid..  §  19.  Pierce's  Fed.  Code,  §       8825. 


§    148]  TRADE-MAKK  CASES.  541 

on  file  in  his  office/"3  "That  no  action  or  suit  shall  be  main 
tained  under  the  provisions  of  this  Act  in  any  case  when 
the  trade-mark  is  used  in  unlawful  business,  or  upon  any  article 
injurious  in  itself,  or  which  mark  has  been  used  with  the 
design  of  deceiving  the  public  in  the  purchase  of  merchandise, 
or  has  been  abandoned,  or  upon  anv  certificate  of  registration 
fraudulently  obtained."4  ''That  nothing  in  this  Act  shall 
prevent,  lessen,  impeach,  or  avoid  anv  remedy  at  law  or  in 
equity  which  anv  party  aggrieved  by  any  wrongful  use  of  any 
trade-mark  might  have  had  if  the  provisions  of  this  Act  had 
not  been  passed."5  "That  in  anv  case  involving-  the  right  to 
a  trade-mark  registered  in  accordance  with  the  provisions  of 
this  Act,  in  which  the  verdict  has  been  found  for  the  plaintiff, 
or  an  injunction  issued,  the  court  may  order  that  all  labels, 
signs,  prints,  packages',  wrappers,  or  receptacles  in  the  pos- 
session of  the  defendant,  bearing  the  trade-mark  of  the  plain- 
tiff or  complainant,  or  any  reproduction,  counterfeit,  copy,  or 
colorable  imitation  thereof,  shall  be  delivered  up  and  destroyed. 
Any  injunction  that  may  be  granted  upon  hearing,  after 
notice  to  the  defendant,  to  prevent  the  violation  of  any  right  of 
the  owner  of  a  trade-mark  registered  in  accordance  with  the 
provisions  of  this  Act,  by  any"  District  "Court  of  the  United 
States,  or  by  a  judge,  thereof,  may  be  served  on  the  parties 
against  whom  snch  injunction  may  be  granted  anywhere  in  the 
United  States  where  they  may  be  found,  and  shall  be  operative, 
and  may  be  enforced  by  proceedings  to  punish  for  contempt, 
or  otherwise,  by  the  court  by  which  such  injunction  was  granted, 
or  by  any  other"  District  "Court,  or  judge  thereof,  in  the  United 
States,  or  by  the  Supreme  Court  of  the  District  of  Columbia, 
or  a  judge  thereof.  The  said  courts,  or  judges  thereof,  shall 
have  jurisdiction  to  enforce  said  injunction,  as  herein  provided, 
as  fullv  as  if  the  injunction  had  been  granted  bv  the  District 
Court  in  which  it  is  sought  to  be  enforced.  The  clerk  of  the 
court  or  judge  granting  the  injunction  shall,  when  required  to 
do  so  by  the  court  before  which  application  to  enforce  said  in- 
junction is  made,  transfer  without  delay  to  said  court  a  eerti- 

3  Ibid..  §  20.  Pierce's  Fed.  Code,  §  5  n,j,l..    §    23,     Pierce    Fed.    (ode,. 
882G.                                                                   §    SS-2'i. 

4  Hud..    §    21,    Pierce    Fed.    Code. 
§  8827. 


542 


BILLS    IN    EQUITY. 


[§  UP 


iifil  copj  of  nil  the  papers  <»n  which  the  said  injunction  was 
granted  thai  are  on  tile  in  his  office.''6  The  hill  must  show 
that  the  trade-mark  was  n$ed  in  commerce  with  foreign  nations 
among  the  several  States  or  with  the  Indian  tribes.7  The  ques- 
tion whether,  in  the  same  bill,  relief  can  he  prayed  against 
trade-mark  am!  unfair  competition,  both  parties  be^ng  citizens 
of  the  same  State,  is  still  sub  judicie:  It  has  been  held  that 
where  the  trade-mark  is  invalid,8  the  court  cannot  then  consider 
the  question  of  unfair  competition,  nor  when  it  is  invalid,  hut 
not  infringed.9  It  has  been  held  that  where  the  trade-mark  is 
v;ilid  and  has  been  infringed,  and  the  acts  of  unfair  trade  are 
nor  separate  and  distinct  from  the  acts  of  infringement,  that 
then  an  injunction  against  them  may  be  joined  with  the  decree 
forbidding  the  infringement  of  the  trade-mark;10  but  that  the 
rule  is  otherwise  when  they  are  separate  and  distinct  acts.11 
§  149.  Bills  to  obtain  relief  against  interfering  trade- 
marks. "That  whenever  there  are  interfering  registered 
trade-marks,  any  person  interested  in  any  one  of  them  may 
have  relief  against  the  interfering  registrant,  and  all  per- 
sons interested  under  him,  by  suit  in  equity  against  the  said 
registrant;  and  the  court,  on  notice  to  adverse  parties  and  other 


Co.     v.     Illinois 
665,   21    Sup. 


6:14  St.  at  L.  1251,  §  20,  Pierce 
Fed.    Code,    §    8820. 

1  Bernstein  v.  Danuitz.  190  Fed. 
G0'4.  See  Trade-Mark  Cases.  100 
!  .  S.  S2.  25  Lt  ed.  550£  and  supra, 
?S    :;<i.    44.    142. 

8  Elgin  Watch 
Watch  Co..  179  I".  S 
Ct.  270.  4o  L.  ed.  3'65;  Leselien 
Pope  Co.  v.  Broderiok.  201  V.  S. 
!66,  26  Sup.  Ct.  42.",.  50  L.  ed:  Tin-. 
Bernstein  v.  Damvitz.  190  Fed.  004: 
Diederii  li  v.  W.  Schneider  Wholesale 
Wine  &  Liquor  Co..  C.  C.  A..  195 
Fed.    35. 

9  Burt  v.  Smith.  C.  C  A.,  71  Fed. 
101.  17  C.  C.  A.  573;  Hutchinson 
v.  Loewy.  C.  C.  A..  163  Fed.  42.  90 
I  I  .  A.  1  :  Bernstein  v.  Danwitz. 
190   Fed.  604.     See  §§  24.  1:52. 

10  Globe- Wernicke  Co.  v.  Fred 
Macev   Co..   C.  C.   A.,    110    Fed.  696, 


703,  •">'»  C.  C.  A.  304  (a  patent 
casei;  T.  B.  Woods  Sons  Co.  V. 
Valley  Iron  Works.  160  Fed.  770 
(a  patent  case)  :  Po-s  v.  H.  S.  Geer 
Co..  188  Fed.  7:11.  734.  See  Saxleli- 
ner  v.  Eisner  &  Mendelson  in..  170 
U.  S.  10.  37.  41.  21  Sup.  Ct.  7.  45 
L.  ed.  60;  s.  c.  C.  C.  A..  147  Fed. 
380;  77  C.  C.  A.  417.  Contra,  Ciish- 
man  v.  Atlantis  Fountain  Pen  Co.. 
164  Fed.  (.»4  (a  patent  case)  ;  Mecky 
v.  Orabowski.  177  Fed.  59]  (a  pat- 
ent   case). 

n  Boss  v.  H.  S.  Geer  Co..  188 
Fed!  731.  734:  C.  L.  King  &  Co. 
v.  Inlander.  133  Fed.  416;  <  u-dmian 
v.  Atlantis  Fountain  Pen  Co..  164 
Fed.  94;  Mecky  v.  Garabowski,  177 
Fed,  593L;  National  Casket  Co.  v. 
N.  Y.  &  Brooklyn  Casket  Co.,  185 
Fed.  ."33:  the  four  last  cases  were 
patent    cases. 


150] 


COPYRIGHT    CASES.  5 J/} 


due  proceedings  had  according  to  the  com-*;  of  equity,  may  ad- 
judge and  declare  either  of  the  registrations  void  in  whole  or 
ib  part  according  to  the  interest  &£  the  parties  in   the  trade- 
mark, aud  may  order  the  certificate  of  registration   to  be  de- 
livered up  to  the  Commissioner  of  Patents  for  cancellation;"  x 
The  pleading  and  practice  under  hills  of  this  sort   is  substan- 
tially similar  to  that  of  hills  to  ohtain   relief  against    interfer- 
ing patents.2     "In  all  actions  arising  under  the  laws  respecting 
copyright   the  defendant  may  plead   the  genera]    issue,   and 
give  the  special  matter  in  evidence.- 3     "in  all  actions  arising 
under  the  laws  respecting  copyrights,  the  defendant  mav  plead 
the  general  issue,   and  give  the  special   matter  in   evidence."4 
The  suit  must  he  hroughr  within  a  year  after  final  action  there- 
upon m  the  Patent  Office  or  the  determination  of  anv  appeal 
froin  its  dee,s,on,  unless  it  is  shown  that  the  delav  is  unavoid- 
able,      Tt  was  held  to  he  insufficient  to  aver  that  complainants 
brought  suit  within  the  year  against  the  partv  who  succeeded 
in  the  Patent  Office,  and  several  months  thereafter,  after  learn- 
ing for  the  first  time  that  the  defendant  had  assigned  the  pat- 
ent, dismissed  such  suit,  ami   brought  the  present  one  againsl 
the  assignee;  there  being  no  allegation  that  the  assignment  was 
not  recorded,  nor  that  the  complainant  had  no  means  of  as- 
certaining that  it  had  been  made.6 

§  150.  Bills  to  restrain  infringement  of  copyrights. 
The  Copyright  Act  of  March  4.  1909.  provides:  -That  if  anv 
person  shall  infringe  the  copyright  in  anv  work  protected 
under  the  copyright  laws  of  the  United  State,  such- person 
sin,]]  he  habfe:  (a)  To  an  injunction  restraining  such  in- 
fringement; (b)  To  pay  to  ,he  copyright  proprietor  sud,  dam- 
ages" as  the  copyright  proprietor  may  have  suffered  due  ,„  the 
infringement,  as  well  as  all  the  profits  which  the  infringer 
shall  have.uade  from  Sltch  infringement;  and  in  proving ;  prolts 
the  plain  ifi  shall  he  rehired  to  prove  sales  onlv  and'  the  de- 
fendant shall  be  required  to  prove  every  element',,:  cost  which 

*    14»       1A,,    of    Marol,    2.    10„7,  4  r.   S.    R.   S..   S   4n,m.   2    ,,,,     & 


3  l'.   S.   R.   s..   §   4969,  2   Fed!    St. 
Ann.  271.  Pierce   Fed.  Code,  §  8SG2. 


r'h]"    '^Viiss   Co.,    I8G    Fed.   .318. 
6  II. id. 


544  BIIXS    IN    EQUITY.  [§    150 

he  claims,  or  in  lien  of  actual  damages  and  profits  such  dam- 
ages as  to  the  court  shall  appear  to  be  just,   and  in  assessing 
such  damages  the  court  may,  in  its  discretion,  allow  the  amounts 
as   hereinafter   stated.- hut  in   the  case   of   a   newspaper  repro- 
duction of  a  copyrighted   photograph  such*  damages  shall  not 
exceed   the  sum  of  two  hundred  dollars  nor  be  less  than   the 
sum  of  fifty  dollars,  and  such  damages  shall  in  no  other  case 
exceed  the  sum  of  five  thousand  dollars  nor  be  less  than  the  sum 
of  two  hundred  and  fifty  dollars,  and  shall  not  be  regarded  as 
a  penalty:     First.     In  the  case  of  a  painting,  statute,  or  sculp- 
ture, ten  dollars  for  every  infringing  copy  made  or  sold  by  or 
found  in  the  possession  of  the  infringer  or  his  agents  or  em- 
ployees; Second.     In  the  case  of  any  work  enumerated  in  sec- 
tion five  of  this  Act.  except  a  painting,  statute,  or  sculpture,  one 
dollar  for  every  infringing  copy  made  or  sold  by  or  found  in 
the   possession   of   the   infringer   or   his   agents  or   employees; 
Third.      In  the  case  of  a  lecture,  sermon,  or  address,  fifty  dol- 
lars  for  every   infringing  delivery;   Fourth.      In   the   case   of 
a  dramatic  or  dramatico-musical  or  a  choral  or  orchestral  com- 
position, one  hundred  dollars  for  the  first  and  fifty  dollars  for 
every  subsequent  infringing  performance;  in  the  case  of  other 
musical    compositions,    ten    dollars    for    every    infringing   per- 
formance; (c)  To  deliver  up  on  oath,  to  be  impounded  during 
the  pendency  of  the  action,  upon  such  terms  and  conditions  as 
the  court  may  prescribe,  all  articles  alleged  to  infringe  a  copy- 
right;    (d)    To  deliver  up  on  oath   for  destruction   all   the  in- 
fringing copies  or  devices,  as  well  as  all  plates,  molds,  matrices, 
or  other  means  for  making  such  infringing  copies  as  the  court 
may  order;    (e)    Whenever  the  owner  of  a  musical  copyright 
has  used  or  permitted  the  use  of  the  copyrighted  work  upon 
the    parts    of   musical    instruments    serving   to    reproduce    me- 
chanically the  musical  work,  then  in  case  of  infringement  of 
such  copyright  by  the  unauthorized  manufacture,  use,  or  sale 
of  interchangeable  parts,  such  as  disks,  rolls,  bands,  or  cylinders 
for   use   in   mechanical    music-producing   machines   adapted   to 
reproduce  the  copyrighted  music,  no  criminal  action  shall  be 
brought,  but  in  a  civil  action  an  injunction  may  be  granted  upon 
such  terms  as  the  court  may  impose,  and  the  plaintiff  shall  be 
entitled  to  recover  in  lieu  of  profits  and  damages  a  royalty  as 
provided  in  section  one,  subsection  (e),  of  this  Act:     Provided 
also,  That  whenever  any  person,   in  the  absence  of  a  license 


§  150]  copyright  cases.  545 

agreement,  intends  to  use  a  copyrighted  musical  composition 
upon  the  parts  of  instruments  serving  to  reproduce  mechanical- 
ly the  musical  work,  reiving  upon  the  compulsory  license  pro- 
vision of  this  Act,  he  shall  serve  notice  of  such  intention,  by 
registered  mail,  upon  the  copyright  proprietor  at  his  last  ad- 
dress disclosed  by  the  records  of  the  copyright  office  sending  to 
the  copyright  office  a  duplicate  of  such  notice;  and  in  case  of 
his  failure  so  to  do  the  court  may,  in  its  discretion,  in  addition 
to  sums  hereinabove  mentioned,  award  the  complainant  a  fur- 
ther sum,  not  to  exceed  three  times  the  amount  provided  by 
section  one,  subsection  (e),  by  way  of  damages,  and  not  as  a 
penalty,  and  also  a  temporary  injunction  until  the  full  award 
is  paid.  Rules  and  regulations  for  practice  and  procedure  un- 
der this  section  shall  be  prescribed  by  the  Supreme  Court  of 
the  United  States.1'  1  "That  the  proceedings  for  an  injunc- 
tion, damages,  and  profits,  and  those  for  the  seizure  of  infring- 
ing copies,  plates,  molds,  matrices,  and  so  forth,  aforemen- 
tioned, may  be  united  in  one  action." 2  "That  civil  actions, 
suits,  or  proceedings  arising  under  this  Act  may  be  instituted 
in  the  district  of  which  the  defendant  or  his  agent  is  an  in- 
habitant, or  in  which  he  may  be  found.''3  "That  any  such 
court  or  judge  thereof  shall  have  power,  upon  bill  in  equity 
filed  by  any  party  aggrieved,  to  grant  injunctions  to  prevent 
and  restrain  the  violation  of  any  right  secured  by  said  laws,  ac- 
•cording  to  the  course  and  principles  of  courts  of  equity,  on  such 
terms  as  said  court  or  judge  may  deem  reasonable.  Any  in- 
junction that  may  bo  granted  restraining  and  enjoining  the 
doing  of  anything  forbidden  by  this  Act  may  be  served  on  the 
parties  against  whom  such  injunction  may  be  granted  any- 
where in  the  United  States,  and  shall  be  operative  throughout 
the  United  States  and  be  enforceable  by  proceedings  in  con- 
tempt or  otherwise  by  any  other  court  or  judge  possessing  ju- 
risdiction of  the  defendants."4  "That  the  clerk  of  the  court. 
■or  judge  granting  the  injunction,  shall,  when  required  so  to  do 
by  the  court  hearing  the  application  to  enforce  said  injunction, 
transmit  without  delay  to  said  court  a  certified  copy  of  all  the 

8  150.     136  St.  at  L.   1075.  §  25,  3  n,i,i..    §    35;    Pierce    Fed.    Code 

Pierce    Fed.   Code    Supp.,    §    1587.  Supp.,  §  1589. 

2  [bid..  §  27.  4'Ibid.,  §  36. 
Fed.   Prac.  Vol.  T—  35. 


54<i  BILLS    IX    EQUITY.  [§     150 

papers  in  said  cause  that  are  on  file  in  his  office/'5  "That 
where  the  copyright  proprietor  has  sought  to  comply  with  the 
provisions  of  this  Act  with  respect  to  notice,  the  omission  by 
accident  or  mistake  of  the  prescribed  notice  from  a  particular 
copy  or  copies  shall  not  invalidate  the  copyright  or  prevent  re- 
covery for  infringement  against  any  person  who,  after  actual 
notice  of  the  copyright,  begins  an  undertaking  to  infringe  it, 
but  shall  prevent  the  recovery  of  damages  against  an  innocent 
infringer  who  has  been  misled  bv  the  omission  of  the  notice; 
and  in  a  suit  for  infringement  no  permanent  injunction  shall 
be  had  unless  the  copyright  proprietor  shall  reimburse  to  the 
innocent  infringer  his  reasonable  outlay  innocentlv  incurred 
if  the  court,  in  its  discretion,  shall  so  direct."  6  The  Copyright 
Rules  provide:  '1.  The  existing'  rules  of  equity  practice,  so  far 
as  they  may  be  applicable,  shall  be  enforced  in  proceedings 
instituted  under  section  twenty-five  (25).  of  the  Act  of  March 
fourth,  nineteen  hundred  and  nine,  entitled  'An  act  to  amend 
and  consolidate  the  acts  respecting-  copyright.'  2.  A  copy  of 
the  alleged  infringement  of  Copyright,  if  actually  made,  and  a 
copy  of  the  work  alleged  to  be  infringed,  should  accompany 
the  petition,  or  its  absence  be  explained ;  except  in  cases  of  al- 
leged infringement  by  the  public  performance  of  dramatic  and 
dramatico-musical  compositions,  the  delivery  of  lectures,  ser- 
mons, addresses,  and  so  forth,  the  infringement  of  copyright 
upon  sculptures  and  other  similar  works  and  in  any  case  where 
it  is  not  feasible.1"7  Where  there  was  nothing  in  the  bill  to 
show  that  the  matter  copyrighted  was  a  sculpture  or  other 
similar  work  or  that  the  case  fell  within  the  other  excepted 
classes,  a  motion  was  granted  requiring  the  complainant  to 
file  with  his  petition  a  copy  of  the  same.8  The  performance  of 
the  statutory  requirements  should  be  alleged.9  Formerly  the 
statement  that  the  copyright  was  issued  was  held  to  be  insuni- 
cient.10     The  bill  must  further  show  that  the  person  in  whose 

5  Ibid.;   §  37.  61  ;  Atwill  v.  Ferrett,  2  Blatclif.  C. 

6  Ibid..    §    20,    Pierce    Fed.    Code  C.   3D:    Chicago  Music  Co.  v.  J.  Wl 
Supp..  §  1,584.  Butler  Paper  Co..  19  Fed.  758:  Trow 

7  214   I".  S.  536,  53  L.  ed.  1074.  City    Directory    Co.    v.    Curtin.    36 

8  Lesser  v.  (-ieorge  Berfeldt  $  Co..  Fed,  8£9 :  Ford  v.  Charles  E.  Blaney 
188   Vv<\.  864.  Amusement   Co.,   148   Fed.  642,  645. 

SWaalbum  v.  Ingilbv.  1   M.  &  K.  10  ibid. 


§     150]  COPYRIGHT    CASES.  £17 

name  the  copyright  was  obtained  was  the  owner  of  the  article 
copyrighted  and  was  entitled  to  the  copyright.11  It  has  been 
held  that  an  allegation  that  the  sole  right  of  printing  and  pub- 
lishing has  been  sold,  is  not  sufficient  to  show  that  the  copyright 
has  been  transferred.12  3.  Upon  the  institution  of  any  action, 
suit  or  proceeding,  or  at  any  time  thereafter,  and  before  the 
entry  of  final  judgment  or  decree  therein,  the  plaintiff  or  com- 
plainant, or  his  authorized  agent  or  attorney,  may  file  with  the 
Clerk  of  any  Court  given  jurisdiction  under  section  34  of  the 
Act  of  March  4,  1909,  an  affidavit  stating  upon  the  best  of  his 
knowledge,  information  and  belief,  the  number  and  location,  as 
near  as  may  be,  of  the  alleged  infringing  copies,  records,  plutes, 
molds,  matrices,  etc.,  or  other  means  for  making  the  copies 
alleged  to  infringe  the  copyright,  and  the  value  of  the  same,  and 
with  such  affidavit  shall  file  with  the  Clerk  a  bond  executed  by 
at  least  two  sureties  and  approved  by  the  Court  or  a  Commis- 
sioner thereof.  4.  Such  bond  shall  bind  the  sureties  in  a  speci- 
fied sum,  to  be  fixed  by  the  Court,  but  not  less  than  twice  the 
reasonable  value  of  such  infringing  copies,  plates,  records, 
molds,  matrices,  or  other  means  for  making  such  infringing 
copies,  and  be  conditioned  for  the  prompt  prosecution  of  the 
action,  suit  or  proceeding ;  for  the  return  of  said  articles  to  the 
defendant,  if  they  or  any  of  them  are  adjudged  not  to  be  in- 
fringements, or  if  the  action  abates,  or  is  discontinued  before 
they  are  returned  to  the  defendant;  ami  for  the  payment  to  the 
defendant  of  any  damages  which  the  Court  may  award  to  him 
against  the  plaintiff  or  complainant.  Upon  the  filing  of  said 
affidavit  and  bond,  and  the  approval  of  said  bond,  the  clerk  shall 
issue  a  writ  directed  to  the  Marsha]  of  the  district  where  the 
said  in-fringing  copies,  plates,  records,  molds,  matrices,  etc.. 
or  other  means  of  making  such  infringing  copies  shall  be  stated 
in  said  affidavit  to  be  located,  and  generally  to  any  Marshal 
of  the  United  States,  directing  the  said  Marshal  to  forthwith 
seize  and  hold  the  same  subject  to  the  order  of  the  Court  issuing 
said  writ,  or  of  the  Court  of  the  district  in  which  the  seizure 
shall  be  made.  .">.  The  Marshal  shall  thereupon  seize  said 
articles  or  any  smaller  or  larger  part  thereof  he  may  them  or 

11  Ford  v.  Cirajcles  F.  Blaney  Am-  12  Ford  v.  Charles  F.   Blaney   Am- 

usement   Co..    14S    Fed.    042.  usement   Co.,    14K    I-Vd.   042,   045. 


5-18  BILLS    EN    EQUITY.  [§    150 

thereafter  find,  using  such  force  as  may  lie  reasonably  neces- 
sary in  the  premises,  and  serve  on  the  defendant  a  copy  of  the 
affidavit,  writ  and  bond  by  delivering  the  same  to  him  person- 
ally, if  he  can  be  found  within  the  district,  or  if  he  cannot  be 
found,  to  his  agent,  if  any,  or  to  the  person  from  whose  pos- 
session the  articles  are  taken,  or  if  the  owner,  agent,  or  such 
person  cannot  be  found  within  the  district,  by  leaving  said 
copy  at  the  usual  place  of  abode  of  such  owner  or  agent,  with  a 
person  of  suitable  age  and  discretion,  or  at  the  place  where  said 
articles  are  found,  and  shall  make  immediate  return  of  such 
seizure,  or  attempted  seizure,  to  the  Court.  He  shall  also  attach 
to  said  articles  a  tag  or  label  stating  the  fact  of  such  seizure 
and  warning  all  persons  from  in  any  manner  interfering  there- 
with. 0.  A  Marshal  who  has  seized  alleged  infringing  arti- 
cles, shall  retain  them  in  his  possession,  keeping  them  in  a  se- 
cure place,  subject  to  the  order  of  the  Court.  7.  Within  three 
days  after  the  articles  are  seized,  and  a  copy  of  the  affidavit^, 
writ  and  bond  are  served  as  hereinbefore  provided,  the  defend- 
ant shall  serve  upon  the  clerk  a  notice  that  he  excepts  to  the 
amount  of  the  penalty  of  the  bond,  or  to  the  sureties  of  the 
plaintiff  or  complainant,  or  both,  otherwise  he  shall  be  deemed 
to  have  waived  all  objection  to  the  amount  of  the  penalty  of  the 
bond  and  the  sufficiency  of  the  sureties  thereon.  If  the  Court 
sustain  the  exceptions  it  may  order  a  new  bond  to  be  executed 
by  the  plaintiff  or  complainant,  or  in  default  thereof  within  a 
time  to  be  named  by  the  Court,  the  property  to  be  returned  to 
the  defendant.  8.  Within  ten  days  after  service  of  such  no- 
tice, the  attorney  of  the  plaintiff  or  complainant  shall  serve 
upon  the  defendant  or  his  attorney  a  notice  of  the  justification 
of  the  sureties,  and  said  sureties  shall  justify  before  the  Court 
or  a  Judge  thereof  at  the  time  therein  stated.  9.  The  defendant, 
if  he  docs  not  except  to  the  amount  of  the  penalty  of  the  bond  or 
the  sufficiency  of  the  sureties  of  the  plaintiff  or  complainant, 
may  make  application  to  the  Court  for  the  return  to  him  of  tin- 
articles  seized,  upon  filing  an  affidavit  stating  all  material  facts 
and  circumstances  tending  to  show  that  the  articles  seized  are 
not  infringing  copies,  records,  plates,  molds,  matrices,  or  means 
for  making  the  copies  alleged  to  infringe  the  copyright.  10. 
Thereupon  the  Court  in  its  discretion,  after  such  hearing  as 
it  may  direct,  may  order  such  return  upon  the  filing  by  the 


§    151]  INTERSTATE   COMMERCE    CASES.  549 

defendant  ot  a  bond  executed  by  at  least  two  sureties,  binding 
them  in  a  specified  sum  to  be  fixed  in  the  discretion  of  the 
Court,  and  conditioned  for  the  delivery  of  said  specified  articles 
to  abide  the  order  of  the  Court.  The  plaintiff  or  complainant 
may  require  such  sureties  to  justify  within  ten  days  of  the  filing 
of  such  bond.  11.  Upon  the  granting  of  such  application  and 
the  justification  of  the  sureties  on  the  bond,  the  Marshal  shall 
immediately  deliver  the  articles  seized  to  the  defendant.  12. 
Any  service  required  to  be  performed  by  any  Marshal  may  be 
performed  by  any  deputy  of  such  Marshal.  13.  For  services  in 
cases  arising  under  this  section,  the  Marshal  shall  be  en- 
titled to  the  same  fees  as  are  allowed  for  similar  services 
in  other  cases.'' 13 

§  151.  Bills  in  equity  under  the  Interstate  Commerce 
Law.  The  appropriate  courts  of  the  United  States  have  ju- 
risdiction to  entertain  bills  in  equity  to  enforce,  otherwise  than 
by  adjudication  and  collection  of  forfeiture  or  penalty,  or  by 
infliction  of  criminal  punishment,  any  order  of  the  Interstate 
Commerce  Commission  other  than  for  the  payment  of  money.1 
Such  suits  may  be  brought  by  the  United  States,2  and  also  by 
private  individuals,  for  whose  benefit  the  orders  were  made,3 
such  as  an  order  awarding  reparation  to  shipper  for  an  un- 
lawful charge.4  The  act.  creating  the  Commerce  Court  did  not 
deprive  the  District  Courts  of  the  United  States  6f  jurisdic- 
tion of  a  suit  to  compel  an  interstate  carrier  to  receive  and 
transport  property  tendered  for  shipment,5  nor  of  an  action 
by  a  shipper  to  recover  freight  charges  declared  by  the  commis- 
sion to  be  excessive6  and  to  recover  damages  under  the  statute 
because  of  secret  discriminations  given  by  a  carrier  to  the 
plaintiff's  competitor.7     Xo  court  of  the  Unified  States  has  ju- 

13  214   U.  S.  533.  53  L.  ed.    1073.  5  Louisville  &   Xashville  R.  R.  Co. 

See  §  20.  supra;  §  278.  infra.  v.  F.  \Y.  Cook  Brewing  Co..  223  U. 

§   151.     125  St.  at  L.  850;   32  St.  S.  70.  56  L.  ed.  355:  affirming  C.  C. 

at  L.  847:   U.  S.  v.  Michigan  Cent.  A.,   172  Fed.  117. 

R.  Co.,   122   Fed.  544;    Jud.  Code,  §  6  Chicago.  B.  &  Q.  R.  Co.  v.  Fein- 

207,  36  St.  at  L.  1087.  tuch.  C.  C.  A..  101  Fed.  482. 

2  l\  S.  v.  Michigan  Cent.  R.  Co.,  7  Langdon  v.  Pennsylvania  R.  Cc.r 
122  Fed.   544.  104    Fed.  486;    A.  J.   Phillips  Co.  v. 

3  Chicago,  B.  &  Q.  R.  Co.  v.  Fein-  Grand  Trunk  Western  Ry.  Co.,  C.  C. 
tuch.  C.  C.  A..  101  Fed.  482.  A.,  105  Fed.   12. 

4  Ibid. 


550 


BILLS    IN    EQUITY. 


[§   151 


risdiction  of  a  suit  to  enjoin  an  unreasonable  charge  for  trans- 
portation until  the  Interstate  Commerce  Commission  has  passed 
upon  the  question ; 8  hut  where,  pending-  a  suit  to  enjoin  an 
unreasonable  increase  in  freight  rates,  the  complainants  ap- 
plied to  the  Interstate  Commerce  Commission,  which  decided 
in  their  favor,  the  court  finally  rendered  a  decree  upon  its  find- 
ings and  conclusions.9  The  appropriate  court  of  the  United 
States  has  jurisdiction  of  a  suit  to  enjoin,  set  aside,  annul,  or 
sustain,  in  whole  or  in  part,  any  order  of  the  Interstate  Com- 
merce Commission.11  Such  orders  will  be  set  aside  when  they 
deprive  the  complainants  of  their  property  without  due  process 
of  law,  or  take  their  property  without  just  compensation,  or 
are  beyond  the  powers  of  the  commission,  or  the  commission's 
power  was  exercised  with  gross  unreasonableness.11  For  ex- 
ample, when  it  was  made  without  any  evidence  to  support  it ; 12 
or  upon  evidence  of  which  the  carrier  was  not  apprised  and  was 
given  no  opportunity  to  meet,13  but  it  may  be  that  this  rule  does 
not  apply  to  expert  testimony.14  Thus  may  be  reviewed  an 
order  which  awards  reparation  to  a  complainant.15  The  Com- 
merce Court  has  no  jurisdiction  to  entertain  a  complaint  be- 
cause of  the  refusal  of  the  Interstate  Commerce  Commission  to 
act,16  such  as  a  claim  by  a  shipper  to  recover  excessive  freight 
charges  which  have  been  presented  to  the  commission  and  re- 
jected ; 17  nor  of  a  claim  presented  to  the  commission  upon  which 


8  Southern  Ry.  Co.  v.  Tift,  206 
U.  S.  428.  51  L.  ed.  1124.  Cf.  Macon 
C.roeery  Co.  v.  Atlantic  C.  L.  R.  Co., 
103  Fed.  730,  738;  aff'd  in  215  U. 
S.  501,  54  L.  ed.  300-.  But  see  Jew- 
ett  Bros.  &  Jewett  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  150  Fed.  160;  Colum- 
bus Iron  &  Steel  Co.  v.  Kanawha 
&  M.  Ry.  Co.  171  Fed.  713;  Hous- 
ton Coal  &  Coke  Co.  v.  Norfolk  &  W. 
Ry.  Co..  171  Fed.  723. 

9  Southern  Ry.  Co.  v.  Tift.  206 
1".  S.  4-2S.  51    L.  ed.   1124. 

lOJud.  Code.  §  207,  36  St.  at  L. 
1087. 

n  F.  IT.  Peavey  &  Co.  v.  Union 
Pac.  R.  Co.,  176  Fed.  409.  But  see 
Philadelphia  &  R.  Ry.  Co.  v.  Inter- 


state   Commerce    Commission,     174 
Fed.    687. 

12  Interstate  Commerce  Com.  v. 
Louisville  &  Nashville  Railroad  Co., 
227  U.  S.  88. 

13  Atlantic  Coast  Line  R.  Co.  v. 
Interstate  Commerce  Commission, 
Comra.  Ct.   194   Fed.   449. 

14  Ibid. 

15  Arkansas  Fertilizer  Co.  v.  U.  S., 
f'miim.  St.  193  Fed.  007;  Southern 
Ry.  Co.  v.  U.  S.,  Coram.  Ct.  193 
Fed.    664. 

16  Procter  &  Gamble  Co.  v.  U.  S., 
225  U.  S.  282,  56  L.  ed.  1091;  re- 
versing Comm.  Ct.  188  Fed.  221. 

n Ibid. 


§    151]  INTERSTATE   COMMERCE    CASES.  551 

it  has  not  passed,18  nor  to  review  the  denial  by  the  commis- 
sion of  a  petition  by  a  carrier  for  leave  to  refund  an  excessive 
freight  charge.19  Where  the  commission  has  refused  to  act,  the 
remedy,  if  airy,  is  by  mandamus.20  Any  part  to  an  order  of 
the  Interstate  Commerce  Commission  may  sue  to  have  the  same 
set  aside  without  joining  other  persons  named  in  the  order  and 
similarly  affected  by  the  same.21  A  bill  to  set  aside  an  order 
of  the  Interstate  Commerce  Commission  or  other  board  fixing 
the  amount  of  charges  for  the  transportation  of  freight  or  pas- 
sengers, upon  the  ground  that  they  not  afford  reasonable  com- 
pensation, must  allege  facts  in  support  of  such  conclusions ; 
such  as  the  amount  of  revenue  derived  from  the  traffic  affected 
and  so  far  as  possible  the  cost  of  the  service,  or  other  facts  from 
which  the  court  can  determine  for  itself  whether  the  rates  fixed, 
would  produce  a  reasonable  profit.22  It  seems,  that  it  is  insuffi- 
cient to  allege  that  the  known  loss  resulting  from  the  rate  will 
be  a  specified  amount  without  stating  the  facts  from  which  such 
result  is  reached.23  AVhere  the  ground  of  objection  to  such  ac- 
tion by  a  State  board  is  that  it  will  affect  interstate  commerce, 
it  is  insufficient  to  allege  that  the  railroad's  principal  business, 
between  the  points  affected  consists  of  interstate  commerce  and 
that  the  road  will  be  compelled  to  lower  its  interstate  rates 
without  showing  what  part  of  the  predicted  loss  will  be  on  the 
traffic  affected  as  distinguished  from  the  general  body  of  traffic ; 
and  the  bill  should  disclose  facts  showing  with  reasonable  defin- 
iteness  not  only  the  present  total  value  and  gross  revenue  of  the 
road  affected,  but  also  the  gross  revenue  from  each  class  of 
business,  interstate  and  local,  freight,  passenger  or  other,  and 
the  proportionate  property  values  devoted  thereto,  together 
with  the  gross  operating  expenses,  and  a  proportionate  applica- 
tion thereof  to  such  different  classes  of  traffic,  so  that  the  net 

18  U.  S.  ex  rel.  Stony  Fork  Coal  Interstate  Commerce  Commission, 
Co.  v.  Louisville  &  X.  E.  Co.,  Comm.       Comm.   Ct.   104   Fed.   44!). 

Ct.  195  Fed.  88.  22  Atlantic    Coast    Line  1L    Co.   v. 

19  Arkansas  Fertilizer  Co.  v.  U.  Interstate  Commerce  Commission. 
S.,   Comm.   Ct.,    193    Fed.   6fi7.  Comm.   Ct    194   Fed.   449. 

20  Interstate  Commerce  Commis-  23  Southern  Pac.  Co.  v.  Railroad 
sion  v.  U.  S.  ex  rel.  Humboldt  S.  S.  Commission  of  California,  19:5  Fed. 
Co.,  224  U.  S.  474,  56  L.  ed.  849.  099;    Northern  Fac.   Ry.  Co.  v.  Lee.. 

21  Atlantic   Coast   Line   R.    Co.   v.  199   Fed.   621. 


£52  BILLS    IN    EQUITY.  [§    152 

revenue  from  each  source  may  be  thereby  ascertained.24  It  has 
been  hold  to  be  insufficient  to  set  forth  the  proceedings  of  the 
commission  finding  that  the  rates  charged  were  unreasonable 
or  discriminatory  or  otherwise  in  violation  of  the  statute;  25 
and  an  allegation  that  "said  commission  agreeable  to  the  pro- 
visions of  law  in  that  regard  duly"  caused  a  copy  of  its  order 
to  be  delivered  to  the  defendant,  is  not  a  sufficient  allegation  of 
the  service  of  the  same.26 

§  152.  The  Interrogatory  Clause.  Under  the  old  prac- 
tice, discovery  could  not  be  obtained  unless  prayed  in  the  bill.1 
The  Equity  Rules  of  November  1,  1912,  omit  any  provision 
for  these  and  provide  that  interrigatories  may  be  filed  by  the 
plaintiff  after  the  filing  of  the  bill  and  not  later  than  twenty- 
one  days  after  the  joinder  of  issue,  and  by  the  defendant  at. 
anv  time  after  filing  his  answer  and  not  later  than  twentv-one 
days  after  the  joinder  of  issue,  or  thereafter  by  leave  of  the 
court  or  judge.2  The  practice  upon  this  subject  is  discussed  in 
the  subsequent  chapter  on  "Evidence  and  Discovery."3 

§  153.  Waivers  and  Offers.  It  has  been  customary  to  in- 
sert in  the  prayer  for  relief,  any  waiver  or  offer  which  the 
plaintiff  wishes  to  make,1  although  there  is  no  reason  why  such 
should  not  be  set  forth  in  the  narrative  part  of  the  bill. 

Under  the  former  rules,  "If  the  complainant  in  his  bill  shall 
waive  an  answer  in  the  oath,  or  shall  only  require  an  answer  un- 
der oath  with  regard  to  certain  specified  interrogatories,  the 
answer  of  the  defendant,  though  under  oath,  except  such  part 
thereof  as  shall  be  directly  responsive  to  such  interrogatories, 
shall  not  be  evidence  in  his  favor,  unless  the  cause  be  set  down 
for  hearing  on  bill  and  answer  only;  but  may  nevertheless  be 
used  as  an  affidavit,  with  the  same  effect  as  heretofore,  on  a 
motion  to  grant  or  dissolve  an  injunction,  or  on  any  other  in- 
cidental motion  in  the  cause.  But  this  shall  not  prevent  a  de- 
fendant from  becoming  a  witness  in  his  own  behalf  under  sec- 

24  Southern    Pac.   Co.   v.   Railroad  §   152.     l  Eq.   Rule  43,   of  March, 
Commission  of  California,   193   Fed.       1S42. 

690.  2Eq.    Rule    58. 

25  Bear    Bros.    Mercantile    Co.    v.  3  §    348,   infra. 

Denver  &  R.  G.  R.  Co.,  200  Fed.  614.  §   153.     l  Daniell's  Ch.   Pr.,    (2nd 

26  Ibid.  Am.    ed.)    433. 


§  153] 


WAIVERS    AXD    OFFERS. 


553 


tion  three  of  the  Act  of  Congress  of  July  2,  1864."  2  It  rarely 
happened  that  advantage  of  this  rule  was  not  Taken  by  a  waiver 
inserted  here,  or  more  frequently  in  the  prayer  of  process,  in 
order  to  avoid  the  application  of  the  doctrine,  that  otherwise 
an  allegation  responsive  to  the  hill  in  a  sworn  an- 
swer was  presumed  to  he  true,  unless  rebutted  by  the 
testimony  of  two  witnesses,  or  one  witness  and  strong 
corroborating  circumstances.3  The  rule  was  a  restate- 
ment of  the  former  practice  in  chancery.4  It  has  not  been 
copied  in  those  promulgated  in  1912,  nor  do  the  rules  of  1912 
prescribe  the  effect  of  an  answer  under  oath.  T  ntil  the  matter 
has  been  adjudicated,  a  prudent  practitioner  should  follow  the 
former  practice  and  insert,  in  this  part  of  the  bill,  a  waiver  of 
an  answer  under  oath,  unless  he  wishes  to  examine  the  defend- 
ant upon  interrogatories,5  the  effect  upon  which  of  such  a  waiver 
is  still  unsettled. 

In  accordance  with  the  maxim  that  he  who  seeks  equity  must 
do  equity,  a  court  of  equity  often  refuses  relief  to  one  seeking 
its  aid,  unless  upon  condition  that  he  shall  do  what  it  con- 
siders equitable  to  the  defendant,  or  sometimes  even  to  a  third 
person.6  In  some  cases  it  enforces  this  by  the  entry  of  a  con- 
ditional decree  without  reference  to  the  pleadings.7  This  seems 
to  be  the  proper  practice  when  the  defendant,  by  his  own  con- 
duct, has  so  complicated  matters  between  himself  and  a  party 
seeking  rescission  that  complete  restoration  is  impossible.6 
In  a  case  where  the  plaintiff  had  failed  to  make  the 
tender,     which     was     a     prerequisite     to     his     cause     of     ac- 


2Eq.  Rule  4],  of  1842. 

3  Vigel  v.  Hopp.  104  U.  S.  441, 
26  L.  ed.  765:  Coonrod  v.  Kelly.  ('. 
C.  A..  110  Fed.  841:  infra.  §  331. 

4Bartlett  v.  Gale.  4  Paige  (X. 
Y.)  503;  Coopers  Eq.  PI..  325.  326; 
Story's    Eq.    PL.    §    874. 

5  See  infra,  §  348. 

6Fosdick  v.  Scliall.  09  V.  S.  235 
25  L.  ed.  330. 

7\Yalden  v.  Bodley,  14  Pet.  156, 
164,  165.  10  L.  ed.  308.  401.  402: 
Farmers'  L.  &  Tr.  Co.  v.  Denver. 
L.  &  G.  R.  Co..  C.  C.  A..   126  Fed. 


46;  Johnston  v.  Forsyth  Mercantile- 
Co..  127  Fed.  845;  Andrews  v.  Conol- 
ly.  145  Fed.  43:  Kley  v.  Flealy. 
127  X.  Y.  555:  s.  c.  140  X.  Y.  346, 
354;  Hay  v.  Hay.  13  Hun.  (X.  Y. ) 
315:  Halpin  v.  .Mutual  Brewing  Co;, 
20  App.  Div.  (X.  Y.)  583.  590; 
1'ritz  v.  Jones.  1 17  App.  Div.  i  X.  Y.  | 
643;  Joslyn  v.  Empire  State  Degree 
of  Honor.  145  App.  Div.  (X.  Y. )  14. 
17.  infra,  S§   107.  400. 

a  Hecksches   \.    Edenborn,  203   X. 
Y.  210.  228 


554 


BILLS    IN    EQUITY. 


[§   153 


tion,  his  prayer  of  relief  was  granted ;  but  lie  was 
obliged  to  pay  costs  to  the  defendants,  although  they 
had  resisted  the  suit.9  It  was  held  that  a  court  of  equity 
had  no  power  to  impose  terms  upon  a  defendant  as  a  condi- 
tion of  the  dismissal  of  a  bill.10  But  the  more  usual  practice  is 
to  insist  that  the  plaintiff  shall  offer  in  his  bill,  which  otherwise 
will  be  demurrable,  to  perform,  or,  in  some  cases,  allege  the  per- 
t'urmance  of,  the  equitable  act  required  of  him  Thus, 
a  bill  to  cancel  securities  claimed  to  be  usurious,  or  other- 
wise rendered  void  by  a  statute,  must,  in  the  absence  of  a  State 
statute  to  the  contrary,11  contain  an  offer  by  the  plaintiff  to 
pay  the  defendant  with  lawful  interest  the  money  he  has  re- 
ceived therefor.12  So  a  bill  to  redeem  mortgaged,13  or  pledged,14 
property,  must  contain  an  offer  to  pay  what  is  due  thereon, 
though  the  particular  sum  need  not  be  specified.  A  bill  to  set 
aside  a  judicial  sale  as  void  must  be  accompanied  by  a  tender 
or  offer  of  the  purchase-money  with  interest,  provided  it  was 
applied  for  the  benefit  of  the  estate;  that  money  has  been  first 
repaid,  and  this  the  court  may  require  to  be  done  before  the 
bill  is  filed.15  It  seems  that  a  bill  to  set  aside  a  foreclosure  of 
a  railway  mortgage  should  contain  an  offer  of  payment  of  the 
amount  admitted  to  be  due  under  the  mortgage,  and  of  the  costs 
of  the  foreclosure  suit,  or  at  least  show  some  reason  wrhv  such 
an  offer  should  not  be  required.16  A  bill  to  set  aside  a  tax  sale 
ordinarily  must  contain  an  offer  to  repay  the  purchaser  at 
least  all  legal  taxes  on  the  property  paid  by  him,  both  those  for 
which   the    property   was    sold    and    those   subsequently   levied 


9  Hosmer  v.  Wyoming  Ry.  & 
Iron  Co.,  C.  C.  A.,  129  Fed.  8813. 

10  Columbus  v.  Mercantile  Trust 
&  Deposit  Co..  218  U.  S.  045.  54  L. 
ed.  1193.  The  terms  there  held  to 
have  been  improperly  imposed  were 
a  requirement  that  a  city  purchase 
part  of  the  complainant's  water- 
works and  the  city  had  filed  a  cross- 
bill for  defensive  relief. 

H  Mo..  K.  &  T.  Tr.  Co.  v.  Krum- 
seig.    172   U.   S.  351.   43  L.  ed.  474. 

12  Mason  v.  Gardiner.  4  Brown, 
C.  ('.  436;  Tupper  v.  Powell,  1  J. 
Cli.    (X.  V.)   439:  Matthews  v.  War- 


ner, 6  Fed.  461,  465;  s.  c,  112  U. 
S.    600,  28  L.   ed.  851. 

13  Story's  Eq.  PI.,  §  187a;  Hard- 
ing v.  Pinpjey,  10  Jurist  (N.  S.), 
872;  Perry  v.  Carr,  41  N.  H.  371; 
Robinson  v.  Iron  Ry.  Co..  135  U.  S. 
522,  34  L.  ed.  276;  Gordon  v.  Smith, 
C.  C.  A.,  62  Fed.  503. 

WUehling  v.  Lyon,  134  Fed.  703. 

15  Davis  v.  Gaines.  104  U.  S.  38(1, 
26  L.  ed.  757.  Rut  see  Rush  v. 
First  Nat.  Bank,  C.  C.  A.,  71  Fed. 
102. 

16  Carey  v.  Houston  &  T.  C.  Ry. 
Co..  45  Fed.  438,  443. 


§   153] 


WAIVERS    AXD    OFFERS. 


:>:,:, 


1: 


thereupon  and  paid  by  him,  with  interest  upon  each  sum. 
A  bill  to  restrain  the  collection  of  State  taxes  must  aver  pay- 
nient  of  what  is  conceded  to  he  due,  or  what  can  be  seen  to  be 
due  on  the  face  of  the  bill,  or  can  be  shown  by  affidavits,  whether 
conceded  or  not,  before  the  preliminary  injunction  should  be 
granted.18  If  it  is  claimed  that  the  whole  tax  is  void  as  im- 
properly assessed,  the  complainant  must  tender  the  amount  he 
would  owe  if  the  proper  assessment  had  been  made;19  or,  if  it 
is  impracticable  to  determine  that  sum,  he  should  offer  secur- 
ity for  its  payment ; 20  unless  there  is  no  right  to  assess  the  prop- 
erty at  all,  either  because  it  is  exempt  from  taxation,  or  because 
there  is  no  law  providing  for  the  same.21  In  a  case  where  the 
whole  assessment  was  attacked  for  improper  discrimination 
against  the  complainant  in  favor  of  the  owners  of  similar  prop- 
erty, the  court  required,  as  a  condition  precedent  to  the  issue 
of  an  injunction,  the  payment  of  a  tax,  assessed  at  the  same  rate 
as  that  levied  upon  other  property,  and  on  corporations  of  the 
same  class,  within  the  State.22  The  rule  does  not  apply  to  a 
special  enactment,  which  is  fundamentally  void  and  entirely 
illegal.23      If    the    proper    officer    refuses    to    receive    a    part 


17  Gage  v.  Pumpelly,  115  U.  S.  454, 
29  L.  ed.  449.  But  see  Mendenhall 
v.  Hall,  134  U.  S.  559.  569,  33  L. 
<<1.    1012.    1015. 

18  State  Railroad  Tax  Cases,  92 
F.  S.  575,  017.  33  L.  ed.  669,  674; 
Albuquerque  v.  Perea,  147  U.  S. 
87,  37  L.  ed.  91.     But  see  Chicago, 

B.  &  Q.  R.  Co.  v.  Republic  County. 

C.  C.  A.,  67  Fed.  411;  Chicago,  B. 
&  Q.  R.  Co.  v.  B.  of  C.  of  Norton 
County,  C.  C.  A.,  67  Fed.  458;  Chi- 
cago, M.  &  St.  P.  R.  Co.  v.  Harts- 
horn, 30  Fed.  541  :  Taeoma  Ry.  & 
Power  Co.  v.  Pierce  County.  193 
Fed.  90.  The  same  rule  applies  to  a 
bill  to  enjoin  the  collection  of  a  li- 
cense, increased  by  a  recent  statute, 
where  there  is  no  allegation  that 
the  statute  imposing  the  original  li- 
cense was  invalid.  Morewrf  Co.pp.er 
Co.  v.  Freer.  127   Fed    199.    ' 

19  State  Railroad  Tax  Cases.  92 
U.  S.  575.  617,  23  L.  ed.  669,  674; 


National  Bank  v.  Kimbal.  103  Y.  S. 
732,  26  L.  ed.  469;  People's  Nat. 
Bank  v.  Marye,  191  U.  S.  272.  2S1. 
48  L.  ed.  180,  185;  Raymond  v.  Chi- 
cago Traction  Co.,  207  U.  S*  20. 
38,  52  L.  ed.  78.  88;  Chicago  Union 
Traction  Co.  v.  State  Board  of 
Equalization.  114    Fed.  557. 

20  Fargo  v.  Hart.  193  V.  S.  490, 
503.  48  L.  ed.  761.  767.  But  see 
Ritterlmsch  v.  Atchison.  T.  &  S. 
F.   Ry.   Co..    C.   ('.    A..    19$    Fed.   40. 

21  People's  Nat.  Rank  v.  Marye. 
191  U.  S.  272,  281,  48  L.  ed.  180, 
185:  Fargo  v.  Hart.  193  I'.  S.  490. 
503.    48    L.   ed.    761.    767.    « 

22  Raymond  v.  Chicago  Traction 
Co.,  207  U.  S.  20,  3S,  52  L.  ed.  78, 
8S;  Chicago  I  .',on  Traction  Co.  v. 
State  Board  of  Equalization.  114 
Fed.    557.    5(17. 

23  Norwood  v.  Baker,  172  U.  S. 
269.  293,  43  L.  ed.  443.  452 


►  56 


BILLS    EN    EQUITY. 


[§   153 


of  the  tax,  it  must  be  tendered  without  the  condition  an- 
nexed of  a  receipt  in  full.24  Ordinarily,  where  it  is  impractic- 
able for  the  plaintiff  to  ascertain  the  amount  actually  due,  and 
the  defendant  denies  his  right  to  any  relief,  a  tender  in  the  bill 
without  a  previous  payment' is  sufficient;25  and  in  such  a  case 
an  offer  to  pay  the  money  into  court  whenever  so  ordered  is 
equivalent  to  a  payment  into  court  in  the  first  instance.26  Upon 
a  bill  to  enjoin  the  enforcement  of  a  statute  reducing  railroad 
fares,  the  injunction  order  was  conditioned  upon  the  execution 
of  a  bond  by  the  corporation,  to  pay  into  the  registry  of  the 
court  from  time  to  time  as  ordered,  such  sums  of  money  as 
should  be  equal  to  the  difference  between  the  rate  enjoined  and 
the  original  rate,  and  to  give  to  each  purchaser  of  a  ticket  a  cou- 
pon for  the  payment  of  that  proportion  of  the  difference,  to 
which  he  was  entitled  in  case  the  bill  should  finally  be  dis- 
missed.27 Upon  a  bill  to  enjoin  a  statutory  reduction  of  the 
price  of  gas,  it  was  required  that  the  gas  company  pay  into 
court  the  difference  between  the  old  and  the  new  charges,  the 
same  to  be  there  retained  until  the  final  determination  of  the 
A  bill  to  compel  the  specific  performance  of  a  contract 


case. 


by  a  defendant  should,  it  seems,  contain  an  offer  by  the  plain- 
tiff to  perform  his  part  thereof.29  And  formerly  it  was,30  but 
no  longer  is,31  required  that  a  bill  for  an  account  should  contain 
an  offer  on  the  part  of  the  plaintiff  to  pay  the  balance,  if  any, 
found  due  against  him.  Upon  a  stockholder's  bill,  no  tender 
is  required ; 32  although  a  payment  by  the  corporation  might 
be  made  a  condition  of  the  granting  of  the  injunction.  A  bill 
filed  by  the  United  States  to  vacate  a  patent  for  public  lands  as 


24  State  Railroad  Tax  Cases.  92 
U.  S.  575.  G17,  23  L.  ed.  669,  674; 
National  Bank  v.  Kimbal,  103  U.  S. 
732,   26   L.   ed.   469. 

25  Gordon  v.  Smith.  C.  C.  A.,  62 
Fed.  503 ;  Butchers'  &  Drovers'  S.  Y. 
Co.  v.  Louisville  &  X.  R.  Co.,  C.  C. 
A..  67  Fed.  35. 

26  Cheney  v.  Bilby,  C.  C.  A..  74 
Fed.   52. 

27  Hunter  v.  Wood,  209  U.  S.  205, 
52  L.  ed.  747. 

28  Consolidated  Gas.  Co.  v.  Mayer, 


146    Fed.    150;    s.    C    Consolidated 
Gas  Co.  v.  New  York,  157  Fed.  849. 
29Stapylton     v.     Scott,     13     Ves. 
425;  Fife  v.  Clayton.  13  Yes.  546. 

30  Oodbolt  v.  Watts,  2  Anst.  543. 

31  Columbian  Government  v. 
Rothschild,  1  Simons.  94,  103; 
Wells  v.  Strange,  5  Ga.  22. 

32  Edwards  v.  Mercantile  Trust 
Co.,  124  Fed.  381,  391.  Citizens' 
Saw  &  Tr.  Co.  v.  Illinois  Cent.  R. 
Co.,   C.   C.   A.,    182    Fed.   607. 


§   154] 


PRAYER    FOR    RELIEF. 


.).)  i 


obtained  bv  fraud,  need  not  contain  an  offer  to  return  the  mon- 
ey  paid  therefor  by  the  fraudulent  patentee.33  It  has  been  held  : 
that  a  bill  by  a  trustee  in  bankruptcy,  to  set  aside  a  fraudulent 
or  a  preferential  sale,  need  not  allege  a  tender  of  the  purchase 
money.34  Nor  need  a  bill  to  obtain  relief  against  an  infringe- 
ment of  a  copyright  contain  a  waiver  of  the  complainant's 
statutory  right  to  a  forfeiture  of  the  piratical  plates.35  It  is, 
however,  a  rule  in  equity,  that  no  person  will  be  compelled  to 
discover  that  which  may  expose  him  to  a  penalty  or 
forfeiture.36  A  discovery  of  such  matters  can  only 
be  compelled  when  the  complainant  is  the  only  person  who 
can  enforce  the  penalty  or  forfeiture,  and  he  is  willing  to 
waive  it,37  as,  for  example,  in  a  case  of  infringement  of  copy- 
right.38 An  omission  of  a  waiver,  tender,  or  offer,  whenever 
•considered  necessary,  is  a  ground  for  demurrer ; 39  but  leave  to 
amend  is  in  such  cases  usually  given.40  And  in  many,  but  not 
all  cases,41  when  no  actual  tender  is  required,  a  general  offer  to 
do  whatever  equity  reguires  in  the  premises  seems  to  be  suf- 
ficient.42 

§  154.  The  prayer  for  relief.  The  Equity  Rules  of  1912 
require  that  each  bill  shall  contain  "A  statement  of  and  pravcr 
for   any  special   relief   pending  the   suit  or   on   final  hearing. 


33  U.  S.  v.  Minor,  114  U.  S.  233, 
29  L.  ed.  110;  U.  S.  v.  Trinidad  Coal 
&  Coke  Co..  137  U.  S.  100,  34  L.  ed. 
640;  U.  S.  v.  Laam.  149  Fed.  581. 
See  also  Moffat  v.  U.  S.,  112  U.  S. 
24.  28  L.  ed.  623;  U.  S.  v.  White,  17 
Fed.  561,  565;  U.  S.  v.  Pratt  C.  & 
C.  Co..  18  Fed.  708.  The  same  rule 
applies  for  a  suit  hy  the  United 
States  to  cancel  a  conveyance  made 
by  an  Indian  in  violation  of  a  stat- 
ute. Heckman  v.  U.  S.,  224  U.  S. 
413,  56  L.  ed.  820.  But  in  a  proper 
case  a  decree  conditioned  upon  the 
return  of  the  consolidation  might  be 
made.     Ibid. 

34  Johnston  v.  Forsyth  Mercan- 
tile Co.,  127  Fed.  845. 

35  Farmer  v.  Calvert  Lithog.  Co., 
1  Flippin.  228.  But  see  Snow  v. 
Mast,  63  Fed.  623. 


36  Stewart  v.  Drasha,  4  McLean, 
563;  Atwill  v.  Ferrett.  2  Blatchf. 
39;  U.  S.  v.  White,  17  Fed.  561, 
565;    Snow  v.  Mast,  63  Fed.  623. 

37  Lord  Uxbridge  v.  Staveland.  1 
Ves.  Sen.  7>\\\  Atwill  v.  Ferrett.  2 
Blatchf.  39. 

38  Atwill  v.  Ferrett.  2  Blatchf.  39; 
Farmer  v.  Calver  LithOg.  Co.,  1 
Flippin.   228,   233:    infra,   %   348. 

39  U.  S.  v.  Pratt  C.  &  C.  Co.,  18 
Fed.   708. 

40  Chicago.  B.  &  Z.  R.  Co.  v.  Re- 
public County,  C.  C.  A..  67  Fed. 
413;  Chicago.  B.  &  Q.  R.  Co.  v.  B. 
of  C.  Norton  County,  C.  C.  A.,  67 
Fed.    458. 

« State  Railroad  Tax  Cases,  92 
U.   S.  575.   617.   23   L.  ed.   663,  674. 

42  Cordon  v.  Smith.  C.  C.  A.,  67 
Fed.    503. 


558 


BILLS    IN    EQUITY. 


I  §     154 


which  may  be  stated  and  sought  in  alternative  forms.''1  There 
La  no  express  prbvfsHon  in  these  rules  for  a  pi-aver  for  general 
relict'.  It  will,  however,  be  the  better  practice  to  insert  the 
same  and  to  comply  with  the  requirements  of  the  former  prac- 
tice upon  the  subject.  The  prayer  for  general  relief.  Mr.  Rob- 
bins,  "an  eminent  counsel, "  used  to  say,  was  "the  best  prayer 
after  the  Lord's  Prayer.2  It  is  usually  in  one  of  the  two 
following  forms:  "And  that  your  orator  shall  have  such  other 
or  further,  or  other  and  further,  relief  in  the  premises  as  to 
this  court  shall  seem  meet:"  or  "that  your  orator  may  be 
further  and  otherwise  relieved  in  the  premises  according  to 
equity  and  good  conscience."  Under  the  prayer  for  general 
relief  the  court  will  usually  grant  any  relief3  other  than  an 
interlocutory  order,  which  is  consistent  with,  and  a  ground  for 
which  is  included  in,  the  allegations  of  the  lull,4  and  not 
inconsistent  with  the  prayer  for  special  relief  or  with  the 
ease  made  by  the  bill.5     Less  relief  than  that  prayed  may  be 


§  154.  1  Eq.  Rule  25.  Am.  Gra- 
phophone  Co.  v.  Nat.  Phonograph 
Co..  127  Fed.  349:  Bloomfield  v. 
Fyre.  8  Beav.  250.  259. 

2Mansaton  v.  Molesworth.  1 
Eden;  2(5,  note  b;  Dormer  v. 
Fortescue,  3  Atk.  124:  Storey's  Eq. 
PL,   §   41.   n.   1. 

3'1'aylo.'  v.  Merchant's  Fire  Ins. 
Co.,  9*  How.  390.  13  L.  ed.  187: 
Stewart  v.  Chesapeake  &  Ohio  Can- 
al Co..  1  Fed.  361  :  County  of  Ho- 
Idle  v.  Kimball,  102  U.  S.  091.  20 
L.  ed.  238;  Chicago,  St.  L.  &  X.  O. 
l;.  ( Id.  v.  .Macomb.  2  Fed.  IS:  Adams 
v.  Kehlor  Milling  Co..  3@  Fed.  212. 
See  Butterfield  v.  Miller.  C.  C.  A., 
195    Fed.   200. 

4En.ulisli  v.  Foxall.  2  Pet.  595. 
7  L.  ed.  531  :  Curvy  v.  Lloyd.  22 
I  Yd.  258.  205:  Mackall  v.  Ca-ilear. 
137  L.  S.  550.  504.  34  L.  ed.  770. 
778. 

5  lliern  v.  Mill.  13  Yes.  118:  Bo- 
den  v.  Soden,  there  ritcd:  Crimes 
\.  French.  2  Atk.  141  :  Curry  v. 
Lloyd,  22   Fed.  258.  205:    Hagpart  v. 


Wilczinski.  C.  C.  A.,  143  Fed.  22. 
See  Kerr  v.  Southwick.  C.  C.  A.. 
120  Fed.  772.  Tn  a  suit  upon  a  bill 
praying  an  injunction  against  the 
erection  and  operation  of  coke 
ovens  on  a  certain  street,  and  for 
general  relief,  the  Appellate  Court 
modified  the  decree  by  striking  out 
so  much  thereof  as  granted  an  in- 
junction against  the  operation  of 
coke  ovens  so  near  the  plaintiff's 
premises  as  to  injure  them  by  the 
exhalations  therefrom,  on  the 
ground  that  this  was  not  agree- 
able to  the  case  made  by  the  bill. 
Rainey  v.  Herbert.  ('.  C.  A..  7)7)  Fed. 
443.  Under  a  bill  to  enjoin  a  post- 
master from  refusing  to  transmit  a 
magazine  at  second-cla>s  rates,  it 
was  held  that  the  court  would  not 
enjoin  him  from  limiting  the  num- 
ber of  copies  to  a  -mailer  number 
than  the  hill  alleged  that  complain- 
ant was  entitled  to  send.  when,. 
pending  the  suit,  a  new  permit  was 
granted  with  such  a  limitation. 
Lewis   Pub.  Co.  v.  VYvinan.  108   Fed. 


151] 


PRAYER    FOR    RELIEF. 


559 


756.  Under  a  bill  for  specific  per- 
formance, the  equity  side  of  the 
court  has  no  power  to  grant  a  judg- 
ment for  a  quantum  meruit.  M'Kin- 
liev  v.  Big  Horn  Basin  Development 
Co.,  C.  C.  A.,  167  Fed.  770.  Under  a 
liill  which  prayed  an  injunction 
against  the  pollution  of  a  spring 
and  general  relief,  a  Vermont  court 
granted  a  decree  confirming  the  com- 
plainant's title  to  the  spring  and 
•enjoining  interference  with  the  same, 
(..It  a  in  v.  Cole,  67  Vt.  22G.  In  a 
suit  to  enforce  a  lien  for  the  price 
of  stock  deposited  in  escrow,  the 
court  may  enter  a  decree  for  speci- 
fic performance  of  the  contract,  al- 
though no  lien  exists.  David  v. 
M'Rae,  183  Fed.  812.  Under  a  com- 
plaint for  the  rescission  of  a  sale 
of  land  to  a  minor  and  for  general 
relief,  a  Texas  court  decreed  the 
foreclosure  of  a  lien  for  the  pur- 
chase-money. Morris  v.  Holland,  10 
Tex.  Civ.  App.  474;  s.  c,  31  S.  W. 
R.  690.  Upon  a  bill  to  compel  an 
agent  to  account  for  illicit  profits, 
received  by  him  from  contractors 
with  his  employers,  and  to  follow 
tire  same  into  securities  of  other 
property  held  for  him  by  other  de- 
fendants; it  was  held  that,  under 
the  prayer,  for  general  relief,  a  de- 
cree could  be  entered  as  for  money 
had  and  received  for  the  complaint's 
use  for  any  difference  between'  the 
cost  of  the  specific  property  re- 
covered and  the  profits  thus  corrupt- 
ly obtained.  U.  S.  v.  Carter,  217  U. 
S.  2S6.  291,  54  L.  ed.  769.  In  Michi- 
gan a  bill  which  alleged  that  the  de- 
fendant had  levied  as  sheriff  was 
held  to  support  an  injunction 
against  him  in  his  official  capacity 
although  the  prayer  for  relief  did 
not  describe  him  as  sheriff.  Wight 
v.  Roethlisberger,  11 G  Mich.  241; 
s.    c.    74    X.    Y.    474.      Where    the 


bill  prayed  merely  a  perpetual  and 
not  an  interlocutory  injunction 
against  the  construction  of  a  street 
railway,  and  the  facts  proved  upon 
the  final  hearing  showed  that  an  in- 
junction then  would  not  be  justified, 
the  Supreme  Court  held  that  the  bill 
was  properly  dismissed,  although  it 
contained  a  prayer  for  general  relict 
and  averments  supported  by  the  evi- 
dence which  showed  that  the  com- 
plainant might  be  entitled  to  dam- 
ages in  the  suit;  since  the  aver: 
nients  were  not  introduced  for  that 
purpose  and  the  complainant  at  the 
hearing  disclaimed  any  desire  for 
such  relief.  Osborne  v.  Missouri  Pac. 
Ry.  Co..  147  U.  S.  248,  260,  37  L. 
ed.  155,  161.  Where  a  stockholders' 
bill  prayed  that  a  foreclosure  sale  be 
set  aside  for  fraud  and  that  the  de- 
fendants restore  to  the  mortgagor 
the  mortgaged  property  and  the  pro- 
ceeds thereof,  it  was  held  that  the 
court  could  not  enter  a  judgment 
directing  the  majority  of  the  stock- 
holders-to  account  to  the  plaintiff 
and  other  members  of  the  minority 
for  the  profits  they  had  gained 
through  the  foreclosure  and  a  reor- 
ganization therewith  connected. 
MacArdell  v.  Olcott,  189  N.  Y.  368. 
Where  a  bill  by  a  mortgagee,  who 
had  sought  the  property  at  a  fore- 
closure sale,  prayed  that  the  right 
of  redemption  of  a  defendant,  who 
was  not  a  party  to  the  foreclosure 
suit,  might  be  cut  off  because  he 
was  in  privity  with  one  of  the  de- 
fendants to  the  same  and  bound  by 
the  decree:  it  was  held,  that  the 
court  might  order  a  general  fore- 
closure and  a  resale  of  the  property 
under  the  prayer  for  general  re- 
lief. London  &  San  Francisco  Bank 
v.  Dexter  Horton  &  Co..  C.  C.  A.. 
126  Fed.  593.  See  Interstate  Com- 
merce Commission  v.  Southern  Pac. 


560  BILLS    IN    EQUITY.  [§    154 

granted.6  Where,  however,  a  consolidated  corporation  filed  a 
bill  in  equity  to  enjoin  the  enforcement  of  an  ordinance  reduc- 
ing all  its  charges  for  the  supply  of  gas,  not  praying  in  the 
alternative  relief  as  regards  the  gas  furnished  by  one  of  its  con- 
stituents ;  it  was  held,  that  relief  could  not  be  granted  so  far 
as  such  constituent  alone  was  concerned.7  Where  a  bill  prayed 
for  a  reformation  of  a  policy;  it  was  held,  that  a  decree  could 
not  be  granted  reforming  the  policy  in  a  different  manner,  not 
justified  by  the  case  made  by  the  bill.8  Where  the  bill  which 
charged  fraud  prayed,  that  a  location  be  declared  void,  and  also 
general  relief,  a  decree  was  allowed  declaring  that  the  defend- 
ants hold  the  mine,  as  trustees  ex  mtiUficio,  for  the  complainant's 
benefit.9  It  seems  that  if  there  be  no  objection  to  the  specific 
relief  prayed  for,  the  plaintiff  cannot  at  the  hearing  abandon 
that  and  obtain  a  decree  for  different  relief.10  It  has  been  held 
in  England,  that,  in  some  cases  of  fraud,  where  no  other  relief 
can  be  given  against  a  party  deeply  involved  in  the  fraud 
charged  by  the  bill,  the  payment  of  the  costs  of  the  suit  by 
him  ought  to  form  the  subject  or  a  specific  prayer,  and 
that  otherwise  his  demurrer  to  the  bill  will  be  sustained.11  In 
a  case  where  the  bill  contained  allegations  showing  threatened 
injury  to  rights  of  property,  not  however  mentioned  as  an  in- 
dependent ground  of  relief,  while  it  was  mainly  occupied  with 
complaints  of  a  threatened  invasion  of  rights  of  a  political  na- 
ture, as  the  specific  prayers  for  relief  were  confined  to  the  pro- 
tection of  the  political  rights,  although  the  bill  contained  a 
prayer  for  general  relief,  the  court  refused  to  consider  the  alle- 
gations concerning  the  threatened  injury  to  property.12     A  bill 

Co.,  132  Fed.  829;  holding,  that  the  v.    Chicago.    194   U.   S.   1,   16,  48   L. 

court  could  enforce  an  order  by  the  ed.    851.    856. 

plaintiff,     upon      different      reasons  8  Baldwin    v.    Liverpool    &    L.    G. 

than  those  assigned  by  the  Commis-  Ins.  Co.,  C.  C.  A..   124  Fed.  206. 

sion  for  its  conclusion,  when  the  bill  9  Lockhart    v.    Leeds,    195    U.    S. 

alleged    generally    that    the    rule    of  427.  49  L.  ed.  263. 

the  company,  set  aside  by  the  Com-  10  Allen  v.  Coffman.  1  Bibb  iKy.), 

mission,    was    in    violation    of    the  469:      Pillow     v.     Pillow.     5     Verg. 

Interstate  Commerce  Act.     But  see  (Tenn.)    4^0. 

authorities  cited  supra,  §§  136.  137.  ub'    Texier    v.    The    Margravine 

6  Bay    State    Gas    Co.    v.    Rogers,  of  Anspach.  15  Yes.  159:   164:  Dan- 
147    Fed.   557.   574:   A.   B.   Dick   Co  ioll's  Ch.   Pr.    (2d   Am.  ed.)    441. 

v.    Fuller.    198    Fed.    404.  12  Georgia  v.  Stanton.  6  Wall.  50, 

7  People's   Gas   Light   &   Coke   Co.       18  L.  ed.  721. 


§   155] 


SIGNATURE. 


561 


may  pray  relief  in  the  alternative,  when  it  is  said  to  have  a 
double  aspect."  If  a  different  state  of  facts,  under  which  the 
complaint  is  entitled  to  relief,  appears  upon  the  hearing,  the 
court  may  allow  the  case  to  stand  over,  and  give  the  plaintiff 
leave  to  amend  his  bill  in  conformity  with  them,  and  then  ob- 
tain relief.14  And  if  the  complainant  be  an  infant  or  the  repre- 
sentative of  a  charity,  it  would  formerly  grant  relief  without 
regard  to  the  allegations  in  the  bill.15  "Where  no  account, 
payment,  conveyance,  or  other  direct  relief  is  sought  against  a 
party  to  p  suit,  not  being  an  infant,  the  party,  upon  service  of 
the  subpoena  upon  him,  need  not  appear  and  answer  the  bill, 
unless  the  plaintiff  specially  requires  him  to  do  so  by  the- 
prayer;  but  he  may  appear  and  answer  at  his  option  ;  and  if  he- 
does  not  appear  and  answer  he  shall  be  bound  by  all  the  proceed- 
ings in  the  cause.  If  the  plaintiff  shall  require  him  to  appear 
and  answer  he  shall  be  entitled  to  the  costs  of  all  the  proceed- 
ings  against  him,  unless  the  court  shall  otherwise  direct." 16, 
§  155.  The  signature  to  a  bill.  "Every  bill  or  other 
pleading  shall  be  signed  individually  by  one  or  more  solicitors 
of  record,  and  such  signature  shall  be  considered  as  a  certificate 
by  each  solicitor  that  he  has  read  the  pleading  so  signed  by 
him;  that  upon  the  instructions  laid  before  him  regarding 
the  case  there  is  good  ground  for  the  same;  that  no  scandalous 
matter  is  inserted  in  the  pleading;  and  that,  it  is  not  inter- 
posed for  delay."  1  Formerly,  the  requirement  was  that  the 
bill    should    have    the    signature    of   counsel.2      This    practice- 


is  Shields  v.  Barrow,  17  How.  130, 
144,  15  L.  ed.  158.  102;  Kilgour  v. 
New  Orleans  Gas-Light  Co.,  2 
Woods.  144.  148;  Gaines  v.  Chew, 
2  How.  619.  643.  11  L.  ed.  402, 
411.     See  supra,  §  138. 

14  Beaumont  v.  Boultbee,  5  Ves. 
485;  Palk  v.  Lord  Clinton,  12  Ves. 
63;  Daniell's  Ch.  Pr.  (2d  Am.  ed.), 
439,   440. 

15  Stapilton  v.  Stapilton,  1  Atk. 
2;  Attorney-General  v.  Jeanes,  1 
Atk.  355:  Story's  Eq.  PL,  §  40, 
note. 

16  Eq.  Rule  40. 

Fed.  Prac.  Vol.  I.— 36. 


§  155.  lEq.  Pule  24.  In  Eng- 
land, it  has  heen  held :  that  the 
signature  of  the  solicitor  should  be 
in  manuscript  and  not  lithographed 
(Regina  v.  Cowper.  24  Q.  B.  D. 
533);  but.  in  an  earlier  case,  that 
his  clerk  might  sign  on  his  In-half 
(France  v.  Dutton,  2  Q.  P.  208); 
and  that  when  the  counsel  had  sign- 
ed a  draft,  that  was  sufficient,  and 
his  name  might  he  printed  at  the 
end  of  the  pleading.  "The  Annual 
Practice  101 3."  p.  317. 

2  Eq.   Pule  24,  of   1842. 


?>G2 


BILLS    IN    jEQUITY. 


[§    1^6 


L  -an.  it  is  said,  in  the  time  of  Sir  Thomas  Mure.3  Before  tliat 
time  it  was  the  practice  for  a  master  in  chancery  to  examine 
the  bill  and  determine  whether  it  was  hotter  to  dismiss  it  origi- 
nally or  retain  it  by  subpoena.4  A  signature  upon  the  back  of 
the  bill  has  been  held  to  be  sufficient.5  Under  the  former 
practice,  the  remedy  for  a  defect  in  this  respect  was  by  a 
motion  to  take  the  bill  off  the  file,6  or  by  demurrer.7  The 
remedy  would  now  probably  be  a  motion  to  dismiss.8  The  court 
could,  of  its  own  motion,  order  the  bill  taken  off  the  file.9 
If  the  defendant  should  answer  without  taking  the  objection, 
such  a  defect' would  probably  be  waived.10  Leave  to  amend  by 
adding  the  signature  was  always  granted.11  If  the  complainant 
sues  in  person,  the  signature  of  the  solicitor  might  also  be  dis- 
pensed with.12    In  such  a  case,  the  plaintiff  himself  should  sign 

the  bill. 

§  156.  Affidavits  to  bills.  The  Equity  Patles  of  Xovember 
4,  1912;  contain  but  two  provisions  requiring  an  oath  to  a  bill. 
A  stockholders'  bill  must  be  verified  by  oath.1  In  every  case, 
•'If  special  relief  pending  the  suit  be  desired  the  bill  should  be 
verified  by  the  oath  of  the  plaintiff,  or  someone  having  knowl- 
edge of  the  facts  upon  which  such  relief  is^asked."  2  Under  the 
former  practice,  in  such  a  case  it  was  not  necessary  that  the 
affidavit  should  be  filed  with  the  bill,  nor  before  the  notice  of 
a  motion  for  the  interlocutory  relief,  and  its  omission  did  not 
make  the  bill  demurrable.3  It  is  doubtful  whether,  when  an 
affidavit  is  required,  one  is  sufficient  which  merely  alleges  that 
the  bill  is  true  to  the  best  of  the  affiant's  knowledge,  infor- 
mation and  belief.4 


3  1    Hargrave's   Law   Tracts.  302: 
DanielJ's  Oh.  Eh   (2d  Am.  ed).  357. 

4  1    Hargrave's   Law  Tracts.   302: 
Daniell's  Ch.  Pr.   (2d  Am,.  ed.)   357. 

5  Dwight    v.    Humphreys,    3    Mc- 
Lean,   104. 

6  Dillon  v.  Francis.  1  Dickens,  68. 
TKirkley  v.  Burton.  5  Madd.  378: 

Dwight    v.    Humphreys,    3    McLean, 
104. 

8  See  Eq.   Rule  2!). 

9  French    v.    Dear,    5    Yes.    547. 

10  See    t  .   S.    R.    S.,    §    !>:>4. 

11  Kirklev     v.     Burton,     5     Madd. 


37S;  Dwight  v.  Humphreys.  3  Mc- 
Lean,   104. 

12  See  l\  S.  R.  S..  §  747 ;  1  Hoff- 
man's Ch.  Pr.  07. 

§   156.     1  Eq.  Rule  27. 

2  Eq.   Rule   2.3. 

3  Hughes  v.  Northern  Pac.  Ry. 
Co.,  122  Ala.  400.  25  So.  169,  910. 
Henry  E.  Allen  Co.,  0  L.R.A.  433, 
42  Fed.  618,  622;  Cobb  v.  Clough, 
83    Fed.    604. 

4  Burgess  v.  Martin.  Ill  Ala.  636, 
20  S.  506;  Pollard  v.  So.  Fertilizer 
Co.,   122  Ala.  409,  25  So.  169,  910. 


§  157] 


BILLS    OF    INTERPLEADER. 


563 


The  former  practice  further  required  that  an  affidavit  be 
annexed  to  the  bill  in  the  following'  cases:  A  bill  to  obtain  the 
benefit  of  an  instrument  upon  which  an  action  at  law  would  lie, 
were  it  not  either  lost  or  out  of  the  possession  of  the  complain- 
ant and  believed  to  be  in  that  of  the  defendant,  had  to  be  sup- 
ported by  an  affidavit  of  those  facts  which  are  necessary  to  give 
the  court  jurisdiction.5  A  bill  to  perpetuate  the  testimony  of 
witnesses,  or  to  take  testimony,  de  bene  esse,  had  to  be  supported 
by  an  affidavit  stating  the  reasons  which  render  such  a  pro- 
ceeding necessary.6  A  l)ill  of  interpleader,  and  perhaps  also  a 
bill  in  the  nature  of  an  interpleader;  had  to  ho  supported  by  an 
affidavit  by  the  plaintiff  that  he  does  not  collude  with  either  of 
the  defendants;7  or  if  the  plaintiff  were  a  corporation  by  one 
of  its  officers,  that,  to  the  best  of  his  knowledge  and  belief,  the 
plaintiff  does  not  so  collude.8 

§  157.  Bills  of  interpleader.  A  bill  of  interpleader  is  a 
petition  filed  by  a  disinterested  person  holding  a  fund  or  thing 
to  which  two  or  more  who  are  defendants  set  up  conflicting 
claims,  between  whom  he  cannot  decide  without  incurring  the 
risk,  if  he  delivers  the  property  to  one,  of  being  finally  obliged 
to  pay  the  other  damages  for  having  done  so.1  It  can  only  be 
filed  by  one  who  claims  no  interest  in  the  property  in  question, 
and  who  seeks  no  other  relief  than  leave  to  deposit  it  in  the 
care  of  the  court,  and  be  relieved  from  all  danger  of  further 
vexation  concernin<i'  the  same.2  The  conflicting  claims  must  be 
doubtful.3     The  claimants  must  seek  the  same  thing,  not  niero- 


5  Wahnsley  v.  Child,  1  Ves.  Sen. 
343;  Whitfield  v.  Faussett,  1  Ves. 
Sen.  392;  Story's  Eq.  PL;  §§  313, 
477:  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
44!).   450. 

8  Philips  v.  Carew.  1  P.  Wins. 
117;  Daniell's  Ch.  IV.  (2d  Am.  ed.) 
4.1 2. 

*  Metchalf  v.  llervey,  1  Ves.  Sen. 
248. 

BBigriold  v.  Andland,  11  Si- 
mons. 23. 

§  157.  l  Mitfurd's  Eq.  PI..  Ch  1  ; 
Story's    Eq.    PI..    SS    2H1-207 ;    Dan- 


iell's Ch.  Pr.  (2d  Am.  ed.)  ch. 
xxxii. 

2Killian  v.  Ebbinhans.  11(1  V.  S. 
5(58.  28  L.  ed.  246;  Langston  v. 
Poylston.  2  Ves.  ,Ir.  101  :  Mohawk 
&  Hudson  R.  R.  Co.  v.  Glutej  4 
Paige  (X.  Y.),  384:  Jackson  & 
Sharp  Co.  v.  Pearson.,  tin  Fed.  113. 
123. 

3  Shaw  v.  Gostefc',  8  Paige  i  N.  V.) 
339-  35  Am.  Dec.  li'.Mi;  ( Whrane  v. 
O'Brien,  2  J6nee  A  I. a  T.  380; 
Story's    Eq.    1*1..    §   202. 


164 


BILLS    IN    EQUITY. 


[§  157 


ly  the  same  amounts  under  different  contracts.4  A  tenant  or 
agent  may  not,  by  tiling  such  a  bill,  dispute  the  title  of  his 
lessor  or  principal  when  a  demand  is  made  upon  him,  by  a 
stranger  claiming  under  title  paramount : 5  nor  can  he  thus  com- 
pel an  interpleader  of  two  adverse  claimants  from  whom  he  has 
taken  independent  leases  of  the  same  property.6  He  may,  how- 
ever, thus  obtain  relief  when  different  persons  claim  under  as- 
signments from  the  person  to  whom  he  first  owed  the  debt,7 
or  when  there  is  a  dispute  between  the  principal  and  a  stranger 
concerning  an  assignment,  which  the  latter  claims  the  former 
made  to  him.8  A  licensee,  in  an  action  by  his  licensor  for 
royalties,  cannot  interplead  a  third  person  who  claims  an  in- 
terest in  the  patent.9  A  bill  of  interpleader  may  be  filed  before 
or  after  proceedings  at  law  have  been  begun  against  the  com- 
plainant; 10  but  no  injunction  can  be  granted  to  restrain  a  pro- 
ceeding already  begun  in  a  State  court;11  nor,  according  to 
the  English  rule,  to  stay  proceedings  in  ejectment  in  any 
court.12  Tf  a  suit  in  equity  has  been  already  begun  against 
the  stakeholder,  he  may  perhaps  obtain  relief  by  a  petition  there- 
in ; 13  but  the  more  prudent  course  is  for  him  to  file  a  new 
bill.14  The  fact  that  one  of  the  conflicting  claims  is  action- 
able at  law  and  the  other  is  purely  equitable,  will  not  deprive 
him  of  relief.15  The  enactment  of  a  State  statute  giving  simi- 
lar relief  upon  motion  by  the  defendant  to  an  action  at  law. 
does  not  deprive  equity  of  its  original  jurisdiction.16  The  most 
common  kind  of  interpleader  suits  at  the  present  time  are  those 


*Hoggart  v.  Cutts.  1  Cr.  &  Ph. 
187:    Story's   Eq.   PL.    §   203. 

5  Dungey  v.  Angove,  2  Yes.  Jr. 
:"504.  310:  Lowe  v.  Richardson.  3 
Madd.  277:  Story's  Eq.  PI..  §  295. 
But  it  lias  been  hold  that  a  lessee 
might  obtain  such  relief  by  a  cross- 
bill. Robinson  v.  Brast,  C.  G.  A.. 
14!t  Fed.   149, 

6  Standley  v.  Roberts.  59  Fed. 
-::<;. 

7('o\\tan  v.  Williams,  it  Ves.  107: 
Clarke  v.  Byne.  13  Ves.  386;  Hog- 
gart  v.  Cutts.   1   Cr.  &  Ph.   107.  205. 

BHayward  &  Clark  v.  McDonald, 
C.  C.  A..  11)2  Pel.  800. 


9  Pusey  &  Jones  Co.  v.  Miller,  61 
Fed.  401. 

10  Richards  v.  Salter,  6  J.  Ch. 
(X.  Y.i    445. 

11 U.  S.  R.  S..  §   720. 

12  Metcalf  v.  Hervey.  1  Yes.  Sen. 
24*. 

13  Badeau  v.  Rogers,  2  Paige  (N. 
Y.).  200. 

H  Birch  v.  Corbin.  1  Cox  Eq.  144. 

is  Richards  v.  Salter,  6  J.  Ch. 
(X.  Y.)    445. 

16  Barry  v.  Mutual  Life  Ins.  Co., 
53  X.  Y.  530:  "Wood  v.  Swift.  81  X. 
Y.  31,  35;  Board  of  Education  v. 
Scoville.  13  Kan.  17.  30:  Prudential 


§     157]  BILLS    OF    INTERPLEADER.  565 

brought  by  insurance  companies  against  conflicting  claimants 
to  the  proceeds  of  policies  issued  by  them.17  A  bill  of  inter- 
pleader should  state  the  manner  in  which  the  plaintiff  obtained 
possession  of  the  property  in  question,  and  admit  that  he  has 
no  interest  therein.  It  should  set  forth  the  claims  of  the  de- 
fendants, showing  that  they  conflict,  and  that  he  is  ignorant  of 
their  respective  rights,  and  cannot  determine  between  them 
without  hazard  to  himself.  It  should  offer  to  deposit  the  fund 
or  other  property  in  the  custody  of  the  court;  and  conclude 
with  a  prayer  that  upon  such  deposit  the  defendants  may  be 
enjoined  from  further  molesting  him  about  the  matter  in  ques- 
tion ;  that  they  be  required  to  interplead  and  settle  their  re- 
spective rights  among  themselves;  and  that  he  may  have  his 
costs  out  of  the  fund,  if  there  be  one,  otherwise  from  the  de- 
fendant.18 Under  the  former  practice  the  bill  had  to  be  accom- 
panied by  an  affidavit;  which,  when  filed  by  a  natural  person, 
should  be  sworn  to  by  him,  and  state  that  "this  bill  is  not  filed 
in  collusion  with  either  of  the  defendant  named,  but  merely  of 
his  own  accord  for  relief  in  this  Honorable  Court."  19  If  a 
corporation  be  the  complainant,  one  of  its  officers  should  make 
the  affidavit,  swearing  that,  to  the  best  of  his  knowledge  and 
belief,  the  corporation  does  not  collude  with  either  of  the 
defendants.20  The  omission  of  the  affidavit  was  a  ground  for  a 
demurrer.21  The  bill  should  also  conform  to  the  provisions  of 
the  rules  regulating  original  bills.  Xo  other  step  can  be  taken 
in  the  cause  until  after  deposit  in  court  of  the  fund  or  other 
property  in  dispute.22  It  has.  however,  been  held  in  England 
that  the  bill  is  not  demurrable  for  the  omission  of  an  offer  so 
to  do.23  It  is  better  practice  to  obtain  an  order  ex  parte  per- 
mitting such  payment.24  When  that  is  done,  an  injunction  will 
be  granted  restraining  the  defendants  from  suing  the  plaintiff, 

Assurance   Co.   v.   Thomas,   L.   R.   3  21  Metcalf  v.  Hervey,   1   Yes.  Sen. 

<li.  App.  74.  77.  24S;  Tobin  v.  Wilson.  :?  .1.  J.  Marsh. 

17  Spring   v.    South    Carolina    Ins.  iKy.)    07:    Mi  t  ford's  Eq.  PI.,  ch.    I. 
Co..  8  Wheat.  208.  5  L.  ed.  014.  22  Meux    v.    Bell.    0    Simons.    17~>: 

18  Mitford's  Eq.  PL.  eh.  1  ;  Story's  Williams  v.  Walker.  2  Rich.  Eq.    (S. 
Eq.  PI..  §§  201-207.  C.)   201. 

19  Metcalf  v.   Hervey.    1    Yes.  Sen.  23  Meux  v.  Hell,  (i  Simons.   175. 
24S.  24  Williams    v.    Walker.    2    Rich. 

20Rio„0ld  v.  Augland,  11   Simons,       Eq.   (S.  C.)  291. 


;,.;(; 


BILLS    IN    EQUITY. 


[§  157 


and  from  continuing  any  action  already  begun  touching  the 
matter  in  dispute.25  The  injunction  is  usually  granted  to  take 
effect  upon  payment  of  the  fund  into  court.26  Under  special 
circumstances,  however,  a  stay  order  might  be  granted  until 
the  complainant  had  an  opportunity  to  do  so.27  Upon  an  argu- 
ment to  dissolve  this  injunction  before  hearing,  it  seems  that 
the  defendants  cannot  contradict  the  affidavit  that  there  is  no 
collusion,28  but  a  reference  may  be  directed  when  such  a  charge 
is  made,  and  at  the  hearing  collusion  may  be  shown.29  In 
England,  a  bill  of  interpleader  can  be  successfully  maintained 
though  all  the  defendants  are  beyond  the  jurisdiction  of  the 
court.30  Interpleader  suits  are  usually  heard  on  bill  and  an- 
swers ;  although  there  is  no  reason  why  testimony  should  not  be 
taken.  If  at  the  hearing  the  cause  is  ripe  for  a  decision,  the 
court  will  then  decide  the  controversy  between  the  defendants.31 
If  not,  it  will  enter  a  decree  dismissing  the  plaintiff  with  his 
cnsts,  enjoining  the  defendants  in  accordance  with  the  prayer 
of  the  bill,  and  directing  them  to  interplead.32  An  order  direct- 
ing one  of  the  defendants  to  plead  under  oath  within  ten  days, 
and  to  file  a  bond  with  a  surety  for  the  payment,  if  he  lost  the 
case,  of  the  costs  and  expenses  to  the  other  defendant,  was  held 
to  be  erroneous.33  If  the  claims  on  both  sides  are  purely  legal, 
an  action  or  an  issue  at  law  will  usually  be  directed.  If  one 
of  them  is  of  an  equitable  nature,  and  sometimes  when  both 
are  legal,  a  reference  to  a  master  is  usually  ordered.34     At  the 


25  Sieveking  v.  Behrens,  2  Myl. 
&  Cr.  581. 

26  Sieveking  v.  Behrens,  2  Myl.  & 
Cr.  581 . 

27  Sieveking  v.  Behrens,  2  Myl.  & 
Cr.  5S1-.  U.  S.  R.  S.,  §  718. 

28  Stevenson  v.  Anderson,  2  Yes. 
&  B.  407:  Manby  v.  Robinson.  L. 
R.  4  Ch.  App.  347;  Fahie  v.  Lind- 
say, 8  Oreg.  474. 

29  Manby  v.  Robinson.  L.  R.  4  Ch. 
Ap.  ."547;  Langston  v.  Boylston.  2 
Yes.  Jr.  101:  Dnngey  v.  Angovo.  2 
\  es.  Jr.  .104. 

aeo Martinius  v.  Helmuth,  0.  Coo- 
per. 248;  Stevenson  v.  Andersonj  2 
Ves.  &  B.  412.     Contra,   Herndon  v. 


Ridgeway.  17  How.  424,  15  L.  ed. 
100;  and  see  §  96. 

3iDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1765;  Angell  v.  Hadden.  16  Yes. 
202;  City  Bank  v.  Bangs.  2  Paige 
(X.  Y.).  570. 

32Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1765;  Angell  v.  Hadden,  16  Yes. 
202 :  City  Bank  v.  Bangs.  2  Paige 
(X.   Y.).  570. 

33r,nek  v.  Mason.  C.  C.  A..  135 
Fed.  304. 

34  Daniell's  Ch.  Pr.  1765:  Story's 
Fq.  Jur..  §  822:  Angell  v.  Hadden, 
16  Yes.  202:  City  Bank  v.  Bangs, 
2  Paige   (X.  Y.),  570. 


158] 


BILLS    OL    INTERPLEADER. 


56' 


hearing,  each  defendant  may  read  the  other's  answer  against 
him.35  If  one  of  them  has  allowed  the  bill  to  be  taken  as  con- 
fessed against  him,  this  is  considered  as  an  admission  that  the 
bill  was  properly  filed,  and  that  he  made  an  improper  claim 
against  the  fund;36  and  the  defendant,  who  has  answered 
him,  may  obtain  suitable  relief,  including  a  decree  against 
the  defaulter  for  his  costs  and  the  costs  paid  the  plaintiff.37 
If,  after  answer,  one  of  them  defaults  at  the  hearing,  the  court 
will  enter  a  decree  after  hearing  the  other.38  The  plaintiff, 
if  successful,  is  entitled  to  his  costs,39  including  a  counsel  fee,40 
out  of  the  fund,  if  there  be  one.  Otherwise,  from  the  de- 
fendant whose  claim  is  finally  held  bad.41  These  costs,  as  well 
as  the  costs  of  the  successful  defendant,  must  eventually  be  paid 
by  him  wdiose  claim  is  finally  dismissed.42  It  has  been  said 
that  when  the  bill  is  dismissed,  there  can  be  no  further  proceed- 
ings in  the  cause  as  between  the  defendants ;  not  even  by  con- 
sent ;  inasmuch  as  the  court  has  thereby  lost  jurisdiction.43 
After  a  decree  in  the  plaintiff's  favor,  the  cause  is  terminated 
as  to  him;  and  in  case  of  his  subsequent  death  the  cause  will 
proceed  without  a  revivor.44 

§  158.  Bills  in  the  nature  of  interpleader.  Where  the 
plaintiff  claims  for  himself  some  interest  in  the  fund  or  matter 
in  question,  or  does  not  admit  the  whole  of  a  defendant's  claim, 


35  Bowyer  v.  Pritchard,  11  Price, 
•03;  Daniell's  Ch.  Pr.  1765.  See 
Perm  Mut.  L.  I.  Co.  v.  Union  Tr. 
Co..  83  Fed.  891. 

36  Badeau  v.  Rogers,  2  Paige  (N. 
V.),  200;  Fairbrother  v.  Prattent, 
1  Daniel,  64.  But  see  Standley  v. 
Roberts,  59  Fed.  836. 

37  McXamara  v.  Provident  Saw 
Life  Assur.  Soc,  114  Fed.  910. 

38  Hodges  v.  Smith,  1  Cox  Eq.  357. 
39Dunlop    v.    Hubbard,    19    Ves. 

205;  Dowson  v.  Hardcastle,  2  Cox 
Eq.  279;  McXamara  v.  Provident 
Sav.  Life  Assur.  Soc.,  114  Fed.  910. 
40  Where  the  face  value  of  a  life 
insurance  policy  was  $50,000,  the 
sum  of  $1,000  was  allowed  as  a 
counsel  fee.  Mutual  Life  Ins.  Co. 
v.   Lane.   151    Fed.   276.     Wbere   the 


amount  was  $10,000  or  less,  $150 
was  allowed.  McXamara  v.  Provi- 
dent Sav.  Life  Assur.  Soc,  C.  C.  A.. 
114  Fed.  910,  912.  See  Mutual  Life 
Ins.  Co.  v.  Farmers'  &  Mecbanics' 
Xat.  Bank,  173  Fed.  390,  402;  §  422, 
infra. 

41  Aldridge  v.  Mesner.  6  Ves.  418; 
Mason  v.  Hamilton.  5  Simons,  19; 
Daniell's  Ch.  Pr.  1707. 

42  Mason  v.  Hamilton,  5  Simon-. 
19;  Cowtan  v.  Williams,  9  Ves.  107; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1701). 
1767. 

43  Jennings  v.  Xugent,  1  Molloy. 
134. 

44  Anon.,  1  Vern.  351  ;  Jennings  v. 
Xugent,  1  Molloy,  134;  Daniell's 
Ch.  Pr.  1765. 


:>i;s 


BILLS    IN     EQUITY, 


[§    159 


or  the  defendants  claim  different  amounts,  although  a  bill  of 
interpleader  may  not,  a  bill  in  the  nature  of  an  interpleader 
may  be  sustained.1  It  has  been  held  that  such  a  suit  may  be 
maintained  by  a  mortgagee,  to  compel  the  mortgagor  and  a 
municipal  corporation  to  submit  to  the  court  a  dispute  between 
them  concerning  the  right  to  forfeit  a  franchise.2  A  bill  by  a 
trustee  praying  leave  to  resign  a  trust  and  to  return  the  subject- 
matter  thereof  to  a  new  trustee,  in  accordance  with  the  terms 
of  the  trust  agreement,  is  not  a  bill  in  the  nature  of  an  inter- 
pleader.3 A  pleading,  filed  as  a  bill  of  interpleader,  may  be 
sustained  as  a  bill  in  the  nature  of  an  interpleader.4  The 
frame  of  such  a  bill  and  the  proceedings  thereunder  should 
conform,  mutatis  mutandis,  to  those  of  a  strict  bill  of  inter- 
pleader.5 After  payment  of  what  he  admits  to  be  due,  a  decree 
may  be  entered  discharging  the  plaintiff  as  to  that,  and  directing 
the  suit,  or  if  an  action  at  law  has  previously  been  begun,  the 
latter,  to  proceed  till  his  disputed  rights  are  determined.6 

§  159.  Bills  of  certiorari.  A  bill  of  certiorari  was  a  bill 
tiled  in  a  superior  court  of  equity  for  the  purpose  of  removing 
thither  a  suit  in  equity  pending  in  an  inferior  court,  on  account 
of  some  alleged  incompetency  in  the  latter  or  some  defect  in  its 
proceedings.1  Such  a  bill  first  stated  the  proceedings  in  the 
inferior  court ;  then  the  cause  of  its  incompetency,  as,  for 
example,  that  the  subject  of  the  action  or  the  parties  were  not 
within  its  jurisdiction,  or  that,  for  some  other  cause,  equal 
justice  could  not  be  done  there ;  and  finally  prayed  a  writ  of 
certiorari,  to  certify  and  remove  the  record  and  the  cause  to 


§  158.  IDorn  v.  Fox,  61  N.  Y. 
•2(14:  Mohawk  &  Hudson  R.  R.  Co. 
v.  (lute,  4  Paige  (X.  Y.),  885; 
Provident  Sav.  Life  Assur.  Soc.  v. 
Loeb,  11.")  Fed.  357?  Knickerbocker 
Tr.  Co.  v.  City  of  Kalamazoo,  182 
Fed.  865;  Hayward  &  Clark  v.  Mc- 
Donald. C.  C.  A..  192  Fed.  890.  See 
Robinson  v.  Brast,  C.  C.  A.,  149  Fed. 
149:  Story's  Eq.  PI..  §  2976;  Dan- 
iell's  Cli.  Pr.  (2d  Am.  ed.).  1768. 
Contra,  Xew  England  Mutual  Life 
Ins.  Co.  v.  Odell,  50  Hun  (57  N.  Y. 
3.  C.  R.)  279. 


2  Knickerbocker  Tr.  Co.  v.  City  of 
Kalamazoo.  182  Fed.  865. 

3  Moore  Printing  Typewriter  Co. 
v.  National  Savings  &  Tr.  Co..  218 
U.  S.  422,  54  L.  ed.  1093. 

4  McXamara  v.  Provident  Sav. 
Life  Assur.  Soc.  114  Fed.  910. 

5  McXamara  v.  Provident  Sav. 
Life  Assur.  Soc,  114  Fed.  910. 

6  City  Bank  v.  Bangs.  2  Paige 
(  X.  Y. ) .  570.  See  Groves  v.  Senteel, 
15:5  U.  S.  465,  38  L.  ed.  785:  s.  c, 
66  Fed.  179. 

§  159.  lMitford's  PI.  ch.  1:  Sto- 
ry's  Eq.  PL.  §  298. 


§    158]  BILLS    OF    CERTIORARI.  5fi0 

the  superior  court.2  It  did  not  pray  that  the  defendant  should 
answer,  or  oven  that  he  should  appear  to  the  hill,  and,  conse- 
quently prayed  for  no  writ  of  subpoena,  although  a  subpoena 
had  to  be  sued  out  and  served.3  It  was  considered  as  an 
original  bill,  and  filed  as  such  in  the  superior  court.  Thereupon, 
the  plaintiff  was  required  to  execute  a  bond  in  the  penalty  of 
£100,  with  one  surety  conditioned  to  prove  the  suggestions  of 
the  bill  in  fourteen  days.  A  subpoena  was  next  sued  out  and 
served;  and  a  writ  of  certiorari  issued  directed  to  the  judge  of 
the  inferior  court,  requiring  him  to  certify  or  send  to  the  court 
issuing  the  writ  the  tenor  of  the  bill  or  plaint  below,  with  the 
process  or  proceedings  thereon.  The  writ  having  been  served 
and  returned,  together  with  the  required  statement  and  papers, 
an  order  directing  them  to  be  filed  was  then  obtained.  Testi- 
mony to  prove  or  disprove  the  suggestions  of  the  bill  was  im- 
mediately taken,  and  the  cause  referred  to  a  master  to  report 
whether  they  were  proven  or  no.  This  was  required  to  be  done 
within  fourteen  days,  unless  the  court  specially  enlarged  the 
time.  If  the  allegations  were  proved  and  showed  a  sufficient 
reason  for  retaining  the  suit,  an  order  to  retain  the  bill  was 
granted ;  and  the  defendant  below  was  obliged  to  answer,  and 
the  cause  removed  proceeded  in  the  same  manner  as  if  it  had 
"been  originally  instituted  in  the  superior  court.4  In  no  reported 
case  has  such  a  bill  been  filed  in  a  court  of  the  United  States, 
although  petitions  for  writs  of  certiorari  in  proceedings  at 
common  law  are  not  uncommon.5 

2  Story's  Eq.  PI.,  §  298.  4  Hinde's  Pr.  28-32  and  581,  582. 

3  Story's  Eq.  PI.,  §  298 ;  Mitford's  5  See  infra,  §  460. 
PI.,  ch.  L 


CHAPTER  VI. 


STJBPCENA    TO    ANSWER. 


§   160.  Definition   and  form   of  subpoena.  The     first 

process  in  a  court  in  equity  is  the  subpoena  ad  respondendum 
which  is  a  writ  requiring  the  defendant  to  answer  the  bill 
under  penalty  therein  expressed.  A  similar  writ,  called  quihus- 
dam  ccrtis  <l<>  cq/usisi  in  the  form  of  a  subpoena  without  any 
penalty,  is  also  found  in  some  of  the  early  English  chancery 
cases.1  The  process  of  subpoena  constitutes  the  proper  mesne 
process  in  all  suits  in  equity,  in  the  first  instance,  to  require  the 
defendant  to  appear  and  answer  the  exigency  of  the  bill.2 
These  writs,  like  all  writs  and  processes  issuing  from  the  courts 
of  the  United  States,  must  be  under  the  seal  of  the  court  from 
which  they  issue,  and  signed  by  the  clerk  thereof.  Those  issu- 
ing from  the  Supreme  Court  must  bear  teste  of  the  Chief  Justice 
of  the  United  States,  or,  when  that  office  is  vacant,  of  the  Asso- 
ciate Justice  next  in  precedence.  Those  issuing  from  a  Dis- 
trict Court  must  bear  teste  of  the  Judge,  or,  when  that  office 
is  vacant,  of  the  clerk  thereof.3  When  issued  from  the  Supreme 
Court  the  writ  must  be  in  the  name  of  the  President  of  the 
United  States.4  In  the  Supreme  Court,  the  return  day  of  the 
writ  must  be  at  least  sixty  days  from  the  service  thereof;5 
In  the  District  Courts,  the  return  day  is  twenty  days  from  its 
issue.6  In  the  District  Courts,  whenever  a  bill  is  filed,  and  not 
before,  the  clerk  shall  issue  the  process  of  subpoena  thereon, 
as  of  course,  upon  the  application  of  the  plaintiff,  which  shall 
contain  the  names  of  the  parties  and  be  returnable  into  the 
clerk's  office   twenty   days  from  the   issuing  thereof.     At  the 

§   160.     1  Mr.   Justice    Holmes,    in  2  Equity  Rule  7. 

an  article  on  Early  English  Equity,  3  rj.  S.  R.  S..  §  911. 

1   Law  Quart.  Rev.  102.  note  2..  cit-  «U.  S.  S.  C.  Rule  5. 

inu    Palerave,    King's   Council.    131,  6  U.  S.  S.  C.  Rule  5. 

i.'!2.  note  x;   Scaldewell  v.  Stormes-  6  Equity  Rule  12. 
worth,  1   Cal.  Ch.  5. 

570 


§  160] 


DEFINITION   AND  FORM   OF  SUBPCENA. 


571 


bottom  of  the  subpoena  shall  be  placed  a  memorandum,  that 
the  defendant  is  required  to  file  his  answer  or  other  defense 
in  the  clerk's  office  on  or  before  the  twentieth  day  after  service, 
excludino-  the  day  thereof;  otherwise  the  bill  may  be  taken 
pro  confesso.  Where  there  are  more  than  one  defendant,  a 
writ  of  subpoena  may,  at  the  election  of  the  plaintiff,  be  sued 
out  separately  for  each  defendant,  or  a  joint  subpoena  against 
all  the  defendants.7  If  a  defendant  is  sued  in  a  representative 
capacity,  or  in  both  an  individual  and  a  representative  ca- 
pacity, he  should  be  so  described  in  the  subpoena ;  which 
should  in  this  respect  follow  the  prayer  of  process  in  the 
bill.8  A  subpoena  addressed  to  John  Moore,  guardian  of 
John  Stiles,  is  sufficient  to  give  jurisdiction  over  him  individ- 
ually although  it  might  not  be  to  give  jurisdiction  over  him  as 
guardian.9  If  a  subpoena  is  not  properly  addressed,  its  service 
may  be  set  aside  upon  motion,  as  made  without  authority.10 
Such  a  defect  will,  however,  be  waived,  if  the  defendant  enter 
his  general  appearance  in  his  representative  capacity.11  Where 
an  unincorporated  partnership  was  described  in  the  subpoena 
land  bill  as  a  corporation,  and  no  appearance  was  made,  it  was 
held  that  the  order  thereupon  was  void,  although  the  writ  was 
served  upon  one  of  the  partners,  who  failed  to  notify  the 
plaintiff  of  his  mistake.18  There,  before  suit,  the  attorney  for 
the  co-partnership  had  inadvertently  written  to  the  complainant 
a  letter  which  implied  that  the  company  had  a  board  of  direct- 
ors,'and  the  partnership  did  business  under  the  name  of  the 
Newport  Pressed  Brick  Company.     The  penalty  named  in  the 


7  Eq.  Rule  12.  This  is  copied  in 
part  from  Eq:  Rule  12  of  1842.  Tt 
makes  the  return  day  twenty  days, 
instead  of  '"the  next  rule  day  or  the 
next  rule  day  but  one,  at  the  elec- 
tion of  the  plaintiff',  occurring  after 
twenty  days  from  the  time  of  the 
issue  thereof."  Tt  omits  the  phrase, 
added  to  the  former  rule  Dec.  17, 
1000  (180  V.  S.  641).  '•which  shall 
contain  the  Christian  names  as  well 
as  the  surnames  of  the  parties."  Tt 
adds  the  words,  "and  not  before," 
in  order  to  make  clear  the  practice 
under   the   former   rule.      See   Arm- 


strong  Cork    Co.   v.   Merchants'   Re- 
frigerating Co.,   171    Fed.   778. 

8  Carter  v.  Ingraham,  43  Ala.  7S; 
Walton  v.  Herbert,  3  Green  Ch.  (X. 
J.)  73:  Brasher  v.  Van  Cortlandt. 
2  J.  Chi  (X.  Y.)  247;  see  Cornell 
v.  Green.  88   Fed.  821. 

9  Cornell  v.  Green.  88  Fed.  821; 
s.  c.  in  C.  C.  A.,  95  Fed.  334. 

10  Walton  v.  Herbert.  3  Green  Ch. 
(X.  J.)  73;  Brasher  v.  Van  Cort- 
landt. 2  J.  Ch.    (X.  Y.)    242.  247. 

11  Ibid.:  Buerk  v.  Tmhaeuscr,  8 
Fed.  457. 

12  Baxter  v.  Jones.   185  Fed.  000. 


5f2  BILLS  1ST;  EQUITY.  [§    16,0 

writ  is  now  usually  two  hundred  and  fifty  dollars;  in  earlier 
times  it  might  be  the  or  limb;13  but  it  is  never  enforced,  since 
the  taking  of  the  bill  as  confessed  affords  a  far  more  substantial 
remedy.  The  subpcena  should  be  addressed  to  the  defendant 
against  whom  it  is  issued.14 

The  usual  form  of  a  subpoena  in  a  District  Court  of  the 
United  States  is  substantially  as  follows : — 

The  Pre'sident  of  the  United  States  of  America,  To  John  Aber: 

Greeting, — You  are  hereby  commanded  to  appear  before  the 
Judges  of  the  District  Court  of  the  United  States  of  America 
for  the  Southern  District  of  Xew  York,  in  the  Second  Circuit, 
to  answer  a  bill  of  complaint  exhibited  against  you  in  the  said 
Court  in  a  suit  in  Equity,  by  William  Terhuxe  and  to  further 
do  and  receive  what  the  said  Court  shall  have  considered  in  this 
behalf;  and  this  you  are  not  to  omit  under  the  penalty  on  yon 
Johx  Aber  of  two  hundred  and  fifty  dollars  ($250). 

Witness,  Honorable  George  C.  Holt,  Judge  of  the  District 
Court  of  the  United  States  for  the  Southern  District  of  Xew 
York,  at  the  City  of  Xew  York,  on  the  first  day  of  February, 
in  the  year  one  thousand  nine  hundred  and  thirteen  and  of  the 
Independence  of  the  United  States  of  America  the  one  hundred 
and  thirty-seventh.  . 

Alexander  Gilchrist,  Jr.,  Cleric. 

Robert  Jones,  Sol'r. 

The  Defendant  John  Aber  is  required  to  file  his  answer  or 
other  defense  in  the  above  cause  in  the  Clerk's  office  of  this 
Court,  on  or  before  the  twentieth  day  after  service  hereof  ex- 
eluding  the  day  of  said  service ;  otherwise  the  bill  aforesaid 
may  be  taken  pro  confesso. 

Alexander  Gilchrist,  Jr.,  Clerk. 

13  Mr.   Justice   Holmes,   in   an   ar-  14  Daniell's  Cli.  Pr.    (2d  Am.  ed.^ 

tide    on    Early    English    Equity,    1       495. 
Law  Quar.    Rev..  162,  note  2.  citing 
1   Proceedings  Privy  Council    (21  R. 
2.   1307). 


§   161] 


ISSUE    OF    SUBPCKNA. 


573 


§  161.  Issue  of  the  subpoena.  JS^o  process  of  subpoena  can 
issue  from  the  clerk's  office  in  any  suit  in  equity  until  the  bill 
is  filed  in  the  office.1  Whenever  a  hill  is  filed  the  clerk  must 
issue  the  process  of  subpoena  thereon,  as  of  course,  upon  the 
application  of  the  plaintiff.2  The  signature  of  counsel  is  a  suffi- 
cient warrant  for  his  so  doing.  A  praecipe  or  written  order  for 
the  subpoena,  signed  by  the  attorney  is  usually  first  given  him. 
In  the  early  times,  the  bill  was  first  examined  by  one  of  the 
masters  in  chancery,  whose  duty  it  was  to  determine  whether 
to  dismiss  the  bill  by  original  or  to  retain  it  by  subpuma.3  The 
present  practice,  it  is  said,  originated  when  Sir  Thomas  More 
was  Keeper.4  In  the  Supreme  Court  of  the  United  States  a 
motion  for  leave  to  file  a  bill  must  first  be  made.  This  is 
usually  heard  ex  parte; 5  but  when  leave  was  asked  to  file  a  bill 
against  the  President  of  the  United  States,  under  the  peculiar 
circumstances  of  that  case  it  was  thought  proper  that  argu- 
ment should  be  heard  against  the  motion  for  leave.6  Under 
special  circumstances  the  court  will  recpiire  notice  to  be  served 
upon  the  proposed  defendant,  and  leave  to  file  a  bill  has  been 
denied.7  Whenever  any  subpoena  is  returned  not  executed  as  to 
any  defendant,  the  plaintiff  is  entitled  to  another  subpoena, 
toties  quoiies,  against  him,  if  he  required  it,  until  due  service 
is  made.8  It  has  been  held  that  the  clerk  may  issue  to  an 
attorney  a  summons  duly  sealed  and  signed  without  specifying* 
the  title  of  the  cause,  the  names  of  the  parties,  or  the  return 
day ;  and  that  the  attorney  may  fill  in  the  blanks  when  he  wishes 
to  serve  the  paper.9 


§  161.  1  Equity  Rule  12.  For  the 
rule  where  a  district  is  divided  into 
two  or  more  divisions,  see  U.  S.  v. 
Eddy.  28  Fed.  226. 

2  Equity  Rule   12. 

3  Treatise  on  Masters  of  the 
Chauneerie,  1  Harg.  Law  Tracts, 
302;  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)   357. 

4  Ibid. 

5  Georgia  V.  Grant,  6  Wall.  241, 
18  L.  ed.  848. 

6  Mississippi  v.  Johnson,  4  Wall. 
475.  18  L.  ed.  437;  Georgia  v.  Grant, 
6    Wall.-   241,    242,    18    L.    ed.    848; 


Louisiana  v.  Texas.  176  IT.  S.  1,  44 
L.  ed.  347;  Minnesota  v.  Northern 
Securities  Co..  184  U.  S.  109,  46  L. 
ed.  499 ;  Washington  v.  Northern  Se- 
curities Co.,  185  U.  S.  254.  46  L.  ed- 
897. 

7  Mississippi  v.  Johnson.  4  Wall. 
475.  18  L.  ed.  437;  Georgia  v.  Grant. 
6  Wall.  24  1.  IS  L.  ed.  848:  Minneso- 
ta v.  Northern  Securities  Co.,  184 
l.  S.  199.  46  L.  ed.  499;  supra,  §, 
33. 

8  Equity   Rule   14. 

9Jewett  v.  Garrett,  47  Fed.  625.. 


5-74 


SUBPCENA    TO    ANSWER. 


[§    1$ 


§  162.  When  a  subpoena  is  necessary.  Xo  defendant 
can  be  brought  before  the  court  against  his  will  without  the 
service  of  a  subpoena  upon  him.1  A  general  appearance  will, 
however,  waive  such  an  omission.2  After  a  bill  has  been 
amended  with  no  further  change  than  the  bringing  in  of  new 
parties  defendant,  they  alone  need  be  served  with  a  new  sub- 
poena.3 If,  however,  it  were  otherwise  substantially  amended, 
according  to  the  English  practice  a  subpoena  to  answer  the 
amendments  had  to  be  served  upon  all  the  defendants.4  A 
subpeena  to  appear  and  answer  a  bill  of  revivor  if  required, 
should  be  substantially  in  the  form  of  a  subpoena  to  an  original 
bill,  except  that  it  requires  the  proper  representatives  of  the 
party  against  whom  it  issues  to  appear  at  the  next  rule-day, 
which  shall  occur  after  fourteen  days  from  the  time  of  the 
service  of  the  process,  and  there  show  cause,  if  any  they  have, 
why  the  cause  should  not  be  revived. 

§  163.  Personal  service  of  a  subpeena.  Except  in  cer- 
tain exceptional  cases  the  service  of  the  subpoena  must  be  per- 
sonal.1 and  made  within  the  district.2  It  must  be  made  by  the 
marshal  of  the  district  or  his  deputy,  or  by  some  other  person 
specially  appointed  by  the  court  for  that  purpose,  and  not  other- 
wise.3 "When  the  marshal  or  his  deputy  is  a  party  in  any 
ca'use,  the  writs  and  pravepts  therein  shall  be  directed  to  such 
disinterested  person  as  the  court  or  any  justice  or  judge  thereof 
may   appoint,   and  the   person   so  appointed   may  execute   and 


§    1(12.     1  Equity  Rule  7. 

2  Buerk  v.  Imhaeuser,  8  Fed.  457. 

3  Longworth  v.  Taylor,  1  McLean, 
514;  Angerstein  v.  Clarke,  1  Ves.  Jr. 

2.10;    SkeOington    v.    ,    4   Ves. 

Jr.   66. 

*Co;6ke  v.  Davies.  T.  &  R.  309: 
Pramston  v.  Carter.  2  Simon*.  458. 
Sec  Kendall  v.  Beckett,  1  Russ.  152. 

5  Equity  Rule  56. 

§    103.     1  Equity  Rule  13. 

2  Toland  v.  Sprague.  12  Pet.  300, 
T;28.  9  L.  ed.  1093,  1104:  Picquet  v. 
Swan.  5  Mason.  35:  Bourke  v.  Ami- 
son.  32  Fed.  710:  Winter  v.  Koon, 
Schwarz  &  Co.,  132  Fed.  251  :  supra. 
§  01. 


3  Equity  Rule  15;  Deacon  v. 
Sewing  M.  Co..  14  Rep.  43.  A  copy 
of  an  order,  that  non-resident  de- 
fendants appear  and  plead  before  a 
day  specied  therein,  may  be  served 
by  any  one,  under  an  order  for 
substituted  service,  although  the 
usual  practice  is  to  serve  it  by  a 
deputy  marshal  of  the  district  where 
the  defendants  are  found.  Forsyth 
v.  Pierson,  9  Fed.  801.  It  was  held 
that  the  marshal  might  give  an  at- 
torney an  appointment  of  a  special 
deputy  with  the  name  in  blank  with 
oral  permission  to  the  attorney  to 
fill  in  the  same.  Jewett  v.  Garrett, 
47  Fed.  625. 


163] 


PERSONAL    SERVICE. 


575 


return  them."4  If  the  marshal  or  his  deputy  make  the  service, 
his  unverified  return  is  sufficient.5  He  mav  be  contradicted,6 
although  there  is  a  remedy  by  an  action  against  the  officer 
for  a  false  return.7  It  has  been  specifically  held :  that  the  mar- 
shal's return,  that  the  corporation  served  was  transacting  busi- 
ness within  the  district,  could  be  contradicted ; 8  and  that 
so  could  be  his  return,  that  the  person  on  whom  the  service 
was  made  was  authorized  to  represent  the  defendant  for  that 
purpose,9  and  that  it  wTas  not  conclusive  as  against  strangers  to 
the  writ.10  It  is  insufficient  in  the  case  of  service  upon  a 
corporation,  unless  it  shows  that  the  defendant  was  transact- 
ing business  within  the  district,  or  that  appears  elsewhere  in 
the  record.11  It  is  capable  of  subsequent  amendment;12  and 
when  the  return  shows  that  the  service  was  insufficient,  a  mo- 
tion may  be  made  to  set  the  same  aside.13  Where  there  has 
been  personal  service  upon  the  defendant  by  a  special  deputy 
tho  fact  that  the  return  was  in  the  name  of  such  deputy  instead 
of  in  the  name  of  the  marshal  was  held  an  irregularity  which 
did  not  avoid  the  judgment  when  attacked  in  a  collateral  pro- 
ceeding.14 It  has  been  held  that  the  return  to  a  State  court 
by  a  sheriff  cannot  be  amended  after  a  removal.15  The  return 
should  state  where  the  service  was  made,  if  the  defendant  reside 


4U.  S.  R.  S.,  §  922. 

5  Von  Roy  v.  Blackmail,  3  Woods, 
98,  101;  Phoenix  Ins.  Co.  v.  Wulf,  1 
Fed.  775;  Equity  Rule  16.  Where 
the  defendant  was  named  in  the  bill 
as  Jacob  Kraig,  a  return  that  the 
subpoena  had  been  served  on  Jacob 
King  was  held  insufficient.  Mc- 
Claskey  v.  Barr,  45  Fed.  151. 

6  Mechanical  Appliance  Co.  v. 
Castleman,  215  U.  S.  437,  54  L.  ed. 
272.  See  MeClaskey  v.  Barr,  45  Fed. 
151;  Park  Bros.  &  Co.  v.  Oil  City 
Boiler  Works.  204  Pa.  St.  453.  54 
Atl.  334.  Contra,  Dicta  in  Von  Roy 
v.  Blackman,  3  Woods,  98.  100; 
Joseph  v.  New  Albany  8.  F.  &  R. 
M.  Co.,  53  Fed.  180;  U.  S.  Bank  v. 
City  of  Kendall.  17!i  Fed.  914;  U.  S. 
v.  McHie,  194  Fed.  894. 


7  Von  Roy  v.  Blackman,  3  Woods, 
98,  100. 

8  Peper     Automobile     Co.   v.    Am. 
Motor  Car  Sales  Co.,  180  Fed.  245. 

9  Higham  v.  Towa  State  Travelers'" 
Ass'n,  183  Fed.  845. 

10  U.   S.   v.   McHie,   194   Fed.   894. 
n  Earle  v.   Chesapeake   &   O.   Ry. 

Co.,  127  Fed.  235;  Jackson  v.  Del. 
R.  A.  Co.,  131  Fed.  134;  Green  v. 
Chicago.  B.  &  Q.  Ry.  Co..  147  Fed. 
707;  Allen  v.  Yellowstone  Park 
Transp.   Co..   154  Fed.   504. 

12  Phoenix  Ins.  Co.  v.  Wulf,  1  Fed. 
775. 

13  Scott   v.  Stockholders'  Oil   Co., 
122  Fed.  835. 

14  Mill    v.  Cordon.  45    Red.  270. 
15|'al!iiKin    v.   B.   &    O.    R.   Co.,   45 

Fed.   156. 


.» t 


SUBPCENA    TO    A.NSWEE. 


[§   163 


19 


without  the  district,18  and  probably  in  any  event.  Tf  another 
than  the  marshal  ot  his  deputy  serve  the  subpcena.  proof  must 
be  made  by  the  affidavit  of  the  process-server.17  "The  service 
of  all  process,  mesne  and  final,  shall  be  by  the  marshal  of  the 
district,  or  his  deputy,  or  by  some  other  person  specially  ap- 
pointed by  the  court  or  judge  for  that  purpose,  and  not  other- 
wise. In  the  latter  case,  the  person  serving-  the  process  shall 
make  affidavit  thereof/' 18  When  a  husband  ami  wife  are  par- 
ties a  copy  should  be  served  upon  each,  although  the  former  prac 
tiee  was  complied  with  by  service  upon  the  husband  alone." 
When  a  defendant  was  sued  both  individually  and  in  a  repre- 
sentative capacity,  it  was  held  that  only  one  copy  of  the  sub- 
poena  need  be  left  with  him.20  Such  service  at  the  door  of  the 
defendant's  dwelling,21  and  at  his  place  of  business  when  he 
lives  in  rooms  above  the  same,22  has  been  held  to  be  sufficient. 
In  an  English  ease,  where  infant  defendants  were  secreted, 
service  upon  their  mother  was  allowed,  and  held  sufficient 
Where  a  guardian  ad  litem  has  been  appointed  it  will  be  pre- 
sumed, in  the  absence  of  evidence  to  the  contrary,  that  his  wards 
were  duly  served.24  Chief  Baron  Gilbert,  in  his  "Forum  Rom- 
anum,"  says  of  the  subpoena:  ''The  service  is  good  in  the  night 
or  on  Sunday,  if  it  be  before  the  time  of  the  return  ;  for  this 
being  only  process  of  notice,  ami  not  to  arrest  the  parties,  it 
can  create  no  disturbance,  though  it  be  served  in  the  night  or 
on    Sundav.''25    It  has,   however,   since   been   held   in   England 


23 


16  Allen  v.  Blunt,  1  Blatchf.  480, 
487:  Thayer  v.  Wales.  5  Fisher's 
l'at.  Cas.  448. 

17  Equity   Rule  13. 

18  Eq.  Rule  15,  copied  in  substance 
from  Eq.  Rule  15  of  1842.  See 
Phoenix  Ins.  Co.  v.  Wulf,  1  Fed. 
775:  Hyslop  v.  Hoppock.  5  Ben.  447. 

190'Hara  v.  MacConnell.  93  U. 
S.  150,  23  L.  ed.  840;  Robinson  v. 
Cathcart,  2  ('ranch  C.  ('.  590. 

80  Cornell  v.  Green.  88  Fed.  821; 
s.   C.   in   C.  C.  A.,  95  Fed.   334. 

21  l'luenix  Tns.  Co.  v.  Wulf.  1  Fed. 
775.  For  cases  where  the  proof  of 
service     was     held     insullicient,     see 


Blythe    v.    Hinckley.    84    Fed.    228; 
Swift  v.  Meyers.  37  Fed.  37. 

22Lovin  v.  Hicks.  110  Minn.  179, 
133   N.   W.  575. 

23  Smith  v.  Marshall,  2  Atk.  70, 
"Mr.  William  Allen  Butler,  in  a 
learned  opinion  when  referee,  held 
that,  where  a  guardian  ad  litem  was 
appointed,  service  of  a  subpoena  up- 
on his  infant  ward  was  not  indis- 
pensable to  the  jurisdiction.  Sloane 
v.  Martin,  77  Hun,  249.  See  supra, 
§  106. 

24  Sloane  v.  Martin.  77  Hun  (N. 
Y.),  249.     See  supra.  §  106. 

25  Gilbert's  Forum  Romanum 
(Tyler's  ed.),  42. 


;§  163]  PERSONA!  SERVICE.  577 

that  a  service  on  Sunday  may  be  set  aside.26  A  decision  of 
Circuit  holds  that,  in  an  extraordinary  case,  a  warrant  of  ar- 
rest in  admiralty  can  be  issued  on  Sundav.  Personal  service 
•of  the  subpoena  cannot,  in  the  absence  of  any  special  statutory 
provision,  be  made  beyond  the  territorial  jurisdiction  of  the 
court;28  except  that  in  a  case  of  a  local  nature,  at  law  or  in 
■equity,  where  the  land  or  other  subject-matter  of  a  fixed  nature, 
such  as  a  railroad,  is  in  both  districts  of  the  same  State  or  is 
.situated  entirely  in  either  district  of  a  State  which  is  divided 
into  two  or  more  districts,  a  defendant  resident  therein  may  be 
served  by  the  marshal  of  any  district  in  that  State  where  he  re- 
sides.29 It  has  been  held  that  a  suit  brought  solely  for  the  purpose 
■of  appointing  a  receiver  of  a  railroad,  with  an  injunction  against 
its  creditors,30  a  suit  to  determine  the  rightful  owners  of  a  fund 
in  court,31  and  a  suit  by  the  United  States  to  determine  the 
right  of  an  Indian  tribe  to  a  fisherv,32  are  such  cases  of  a  local 
nature.  In  a  suit  not  of  a  local  nature,  a  duplicate  writ  may  be 
issued  against  a  defendant  residing  in  a  different  district  of 
the  State  directed  to  the  marshal  of  such  district.  "The  clerk 
issuing  the  duplicate  writ  shall  indorse  thereon  that  it  is  a 
true  copy  of  a  writ  sued  out  of  the  court  of  the  proper  district ; 
and  such  original  and  duplicate  writs,  when  executed  and  re- 
turned into  the  office  from  which  they  issue,  shall  constitute 
and  be  proceeded  on  as  one  suit;  and  upon  any  judgment  or  de- 
cree rendered  therein,  execution  may  be  issued,  directed  to  the 
marshal  of  any  district  in  the  same  State."  33  Where  defendants 
reside  in  different  division's  of  a  district,  all  mesne  and  final 
process  may  be  served  and  executed  in  any  or  all  of  the  divisions 
of  the  district.34    In  other  cases  where  a  State  is  divided  into 

2«Mackreth  v.  Nicholson,  19  Ves.  30  East  Tenn.,  V.  &  6.  R.  Co.  v. 

367.  Atlanta  &  T.   V.  R.  Co..  49  Fed.  508. 

27  Pearson  v.  Tlie  Alsalfa,  44  Fed.  31  Winter  v.  Ludlow.  3  Phila.  464, 

358   (U.  S.  D.  C  1)..  S.  C.i  32  u.  s.  v.  Winans,  73  Fed.  72. 

HToland  v.  Sprague,  12  Pet.  300,  83jud.   Code,   §  52,  36  St.  at  L. 

328,  9   L.  ed.   1093,   1104;  Picquet  v.  1087. 

Swan,  5  Mason.  35;   I'.wurke  v.  Ami-  34  .Jud.   Code,   §   53,   36  St.   at   L. 

son,    32    Fed.    710;     Lutterworth    v.  1087. 
Hill.  114  Y.  S.  128,  29  L.  ed.  119. 

29  Jud.  Code,  §§  54.  5o,  50,  36  St. 
at  L.   1087. 

Fed.   Prac.  Vol.  I.— 37. 


.)  i 


8 


SUBPlENA    TO    ANSWER. 


[§  163 


Two  or  more  districts  the  defendant  cannot  be  served  ont  of  the 
district.35 

When  a  petition  is  filed  by  a  district  attorney  of  the  United 
States  praying  an  injunction  against  a  combination  in  restraint 
of  commerce  among;  the  several  States  or  with  foreign  nations, 
the  subpoena  may  be  served  by  leave  of  the  court  in  any  dis- 
trict by  the  marshal  thereof.36  In  suits  for  the  infringement  of 
patents,  service  may  be  made  in  the  district  where  the  suit  is 
brought  upon  any  agent  of  the  defendant  engaged  in  conduct- 
ing the  defendant's  business  there,  provided  that  the  defend- 
ant has  a  regular  place  of  business  in  the  district  and  has  com- 
mitted acts  of  infringement  there.37  At  common  law,  where  the 
State  statutes  permit  the  practice.38  and  in  equity  by  leave  of 
the  court,39  a  receiver  of  a  foreign  railroad  company  may  be 
served  by  leaving  the  writ  with  one  of  his  station  agents.  It 
has  been  held  that  an  attorney  cannot  accept  service  of  a  sub- 
poena ad  respondendum  before  the  entry  by  him  of  a  formal 
appearance ; 40  but  an  acceptance  and  appearance  by  him  with- 
out any  authority  may  be  ratified  by  estoppel.41  A  subpoena 
will  not  he  set  aside  because  addressed  to  a  non-resident  over 
whom  the  court  could  exercise  jurisdiction  with  his  consent,  but 
not  otherwise,  although  the  service  upon  him  might  be  set 
aside.42  A  motion  to  set  aside  the  service,43  or  a  motion  to  quasi) 
the  return,44  accompanied  by  a  special  appearance  for  that 
purpose,45  is  the  proper  method  of  testing  the  sufficiency  of  the 
service ;  unless  the  defendant  prefers  to  disregard  it  and  subse- 
quently to  raise  the  objection  upon   an   appeal   from   the   de- 


35  Galveston.  H.  &  S.  A.  Ry.  Co. 
v.  Gonzales,  151  U.  S.  496,  38  L. 
ed.  24S.  But  see  Winter  v.  Ludlow, 
3  Phila.  4<>4. 

36  2G  St.  at  L..  §§   5.  210. 
37.Tud.    Code.    S    38.    36    St.    at   L. 


ilis- 


supni. 


22 


38  Eddy  v.  Lafayette,  103  U.  S. 
456,    41    L.    ed.    22."). 

39  Central  Tr.  Co.  v.  St.  L.  A.  & 
T.   Ry.   Co...  40   Fed.  426. 

40  r.  S.  v.  Cooper,   196  Fed.  584, 

41  Cowden  v.  Wild  Goose  Mining 
&  Trading  Co.,  C.  C.  A.,  1!>!)  Fed. 
561. 


42  Mason  v.  X.  Y.  Steam  Power 
Co..    87    Fed.   241. 

43  Ibid.;.  Bourke  v.  Amison,  32 
Fed.  710;  Peper  Automobile  Co.  v. 
Am.  Motor  Car  Sales  Co.,  180  Fed. 
245. 

44  Am.  Cereal  Co.  v.  Eli  P.  C.  Co., 
70  Fed.  276;  Peper  Automobile  Co. 
v.  Am.  Motor  Car  Sales  Co..  180 
Fed.  245;  Higliam  v.  Iowa  State 
Travelers'  Ass'n,  183  Fed.  845. 

48  Infra,  §§  169,  170. 


§    lb'4]  SEKVIGE   OK    COKI'OIIATIOXS.  579 

cree,46  or  to  resist  the  execution  of  the  decree  as  void.47  Before 
the  Equity  Rules  of  1912,  it  was  held  that  the  objection  could 
not  be  joined  with  an  answer  to  the  merits.48  A  motion  to  set 
aside  the  service,  made  six  weeks  after  the  service,  was  held 
not  to  be  barred  by  laches.49  Where  such  a  motion  had  been 
'made  and  denied  in  the  State  court,  and  no  appeal  taken  from 
the  decision,  it  was  held  that  it  could  not  be  renewed  in  the 
Federal  court  after  a  removal,50  although  the  motion  may  be 
made  for  the  first  time  in  the  Federal  court  after  a  removal.51 
A  defendant  has  no  right  to  a  trial  by  jury  upon  the  issues 
raised  upon  his  motion.52  In  one  case  such  a  motion  was  grant- 
ed without  prejudice  to  the  right  of  the  complainant  to  apply 
for  leave  to  amend  his  complaint  by  stating  the  facts  relating 
to  the  presence  of  property  within  the  district  and  his  claim 
against  the  same,  which  brought  the  case  within  the  statute.53. 

§  164.  Service  upon  corporations.  If  the  United  States 
are  sought  to  be  made  parties  defendant,  the  subpoena  should  be 
served  upon  the  Attorney-General  or  the  District  Attorney 
of  the  district  where  the  suit  is  brought.1  "When  process  at 
common  law  or  in  equity  shall  issue  against  a  State,  the  same 
shall  be  served  on  the  Governor,  or  chief  executive  magistrate, 
and  Attorney-General  of  such  State."2  When  a  suit  is  brought 
against  a  domestic  corporation,  that  is,  one  chartered  within 
the  State  which  contains  the  district  where  the  suit  is  brought, 
the  subpoena  should  be  served  upon  one  of  its  officers;  or  where 
that  is  impossible,  by  leaving  a  copy  at  its  principal  place  of 
business ;  or  where  it  has  no  place  of  business  nor  officers 
within  the  State,  by  service  upon  its  managing  agents,  or  where 

46  0'Hara  v.  McConnell,  93  U.  S.  51  Gokloy   v.   Morning   News,    156 
150,  23   L.  ed.  840;    Butterworth   v.       U.  S.  518." 

Hill.    114   V.  S.   128,  29  L.  ed.   119.  52  peper    Automobile    Co.    v.    Am. 

47  .Meyer    v.    Kuhn.    C.    C.    A.,    65  Mortor  Car  Sales  Co..  180  Fed.  24:). 
Fed.   70.1.  53  Jackson    v.    Hooper,     171     Fed. 

48  Peper    Automobile    Co.    v.    Am.  .")i»7,  598. 

Motor  Car  Sales  Co..  ISO   Fed.  24.1.  §   104.     l  Hoffiiiiin's   Cli.   Pr,    10S: 

See  (liadcloid  Chemical   Co.  v.  Chi-  Daniell's  Ch.  Pr.   (2d  Am.  ed.)    .517. 

oa.uo   Wood   Finishing  Co..   180    Fed.  note   4. 
770.  2  Supreme  Court  Rule  5;  Grayson 

49  Phelps   v.   Connecticut  Co..   188  v.    Virginia.    3    Dall,    320,    1    L.    ed. 
Fed.  765:  lil'.i:  supra,  §  3. 

50  Hoyt  v.  Ogden  Portland  Cement 
Co..  185  Fed.  889. 


580  SUBPOENA    TO    ANSWER.  [§    164 

there  is  no  agent  there,  perhaps  upon  one  of  its  stockholders,* 
Where  the  State  practice  prescribed  a  specific  method  of  serv- 
ive.  that  must  he  followed  in  actions  at  common  law.4  and  will 
usually  be  followed  in  a  suit  in  equity.5  If  not  obnoxious  to 
the  Constitution^  it  is  binding  in  a  collateral  proceeding;6  but 
when  the  proceeding  is  attacked  by  a  motion  to  set  aside  the 
service  upon  a  foreign  corporation,  the  Federal  court  determines 
the  objection  for  itself  and  is  not  necessarily  controlled  by  the 
State  law.7  It  has  been  held:  that  a  corporation  created  by  an 
act  of  Congress  can,  in  the  absence  of  a  special  statute  of  the 
United  States",  be  served  with  process  from  a  Federal  court 
only  in  the  district  where  its  principal  office  is  situated  and 
its  corporate  business  is  transacted,  and  not  in  another  district 
where  it  has  stipulated,  in  accordance  with  the  State  statute,  to 
accept  service  of  process ; 8  and  in  Pennsylvania,  that,  in  the 
absence  of  an  express  provision  in  its  charter  a  corporation 
created  by  an  act  of  Congress  can  be  sued  by  service  upon  its 
president  in  any  State.9  An  irregularity  in  service  upon  the 
agent  of  a  corporation  may  be  validated  by  his  admission  of 
service.10 

When  the  jurisdiction  rests  solely  upon  the  existence  of  a 
Federal  question  in  a  case  which  is  not  brought  for  the  in- 
fringement of  a  patent,  nor  against  a  surety  company,  nor  nn- 

3  Daniell's  Ch.  Pr.  (1st  Am.  ed.)  attachment  and  publication  or  by 
564.  "If  a  bill  be  filed  against  a  serving  process  upon  the  State  aud- 
corporation     the     process     must     be       itor. 

served  upon   some  one  of  the  mem-  5  Eby  v.  Northern  Pac.  R.  Co..  13- 

bers."     Citing   Hinde's    Ch.    Pr.    87.  Phila.  144.     But  see  infra.  §  455. 

which    uses    the    same    words.      But  6  Swarts  v.  Christie  Grain  &  Stock 

see  St.  Clair  v.  Cox,  106  U.  S.  353,  Co..   166  Fed.  338. 

359,    27    L.    ed.    223,    226:    Rand    v.  7  West  v.   Cincinnati.   X.  0.   &   T. 

Proprietors,  etc..  Co..  3  Day  (Conn),  P.  Ry.  Co..  170  Fed.  349.  and  cases 

441;    O'Brien   v.   Stair's   F.   &   T.   C.  cited    infra. 

Co.,  10   Cal.  343.  8  A.   L.    Wolff   &    Co.   v.    Choctaw. 

4  Amy  v.  Watertown.  130  U.  S.  O.  &  G.  R.  Co..  133  Fed.  601.  Of. 
301,  9  Sup.  Ct.  530,  32  L.  ed.  946;  Caledonian  Coal  Co.  v.  Baker.  19G 
Lemon    v.    Imperial    Window    Glass  U.  S.  432,  49   L.  ed.  540. 

Co.,  199  Fed.  927,  holding  that,  in  9  Thornburgh  v.  Savage  Mining 
West  Virginia,  a  corporation  which  Co.,  1  Pac.  Law  Mag.  267. 
had  failed  to  fix  its  place  of  resi-  10  Cnion  Pac.  Ry.  Co.  v.  Xovak. 
dence  in  the  State,  by  appointing  an  C.  C.  A..  61  Fed.  573.  Xot,  how- 
attorney  resident  in  one  of  its  ever,  one  by  a  statutory  agent.  Far- 
counties,  might  be  served  either  by  mer  v.  Xat.  Life  Ass'n.  50  Fed.  829. 


§   104] 


M.KVICE  ON   COKPOE-VriO.XS. 


581 


der  the  statute  against  combinations  in  restraint  of  commerce,  a 
District  Court  of  the  United  States  has  no  jurisdiction  over 
a  foreign  corporation  u  which  is  not  an  alien.  But  when  the 
defendant  is  an  alien  corporation,12  or  when  jurisdiction  is- 
claimed  on  account  of  a  difference  of  citizenship,  a  foreign  cor- 
poration may  be  served  with  process  in  the  State  of  the  com- 
plainant's residence,  provided  it  be  "found"  within  the  dis- 
trict.13 What  constitutes  such  a  finding  is  a  matter  hard  to 
define  with  accuracy.  If  a  State  statute  forbids  a  foreign  cor- 
poration to  transact  business  within  its  borders  except  upon 
condition  that  the  corporation  stipulate  to  allow  legal  process. 
to  be  served  upon  it,  and  the  company  execute  such  a  stipula- 
tion, not  in  express  terms  restricted  to  the  process  of  a  State 
court;  it  will  be  considered  to  apply  to  the  Federal  courts, 
and  a  subpoena  from  a  Federal  court  may  be  served  upon  the 
foreign  corporation  in  the  same  manner  as  a  similar  process 
of  a  State  tribunal.14  Such  condition  and  stipulation  may  be 
implied  as  well  as  expressed.15  If  a  State  permits  a  foreign  cor- 
poration to  do  business  within  her  limits,  and  at  the  same  time 
provides  that,  in  suits  against  it  for  business  there  done,  process 
shall  be  served  upon  its  agents,  the  provision  is  deemed  to  be 
a  condition  of  the  permission  ;  and  corporations  that  subsequent- 
ly do  business  in  the  State  are  deemed  to  assent  to  such  con- 
ditions as  fully  as  though  they  had  specially  authorized  their 
agents  to  receive  service  of  the  process.16     Such  condition  must 


u  McCormick  II.  M.  Co.  v.  Wakh- 
ers,  134  U.  S.  41,  33  L.  ed.  833; 
In  re  Keasby  &  Mattison  Co..  1GO  U. 
S.  221,  40  L.  ed.  402;   supra,  §  61. 

12  In  re  Hohorst,  150  0.  S.  653, 
37  L.  ed.  1211  ;  Barrow  S.  S.  Co.  v. 
Kane.  170  U.  S.  100.  42  L.  ed.  !Mi4. 

13  McCormick  11.  M.  Co.  v.  Walth- 
ers,  134  U.  S.  41 ,  33  L.  ed.  833; 
supra,  §61. 

14  Ex  parte  Schollenberger,  96  U. 
S.  369,  24  L.  ed.  853;  Pennsylvania 
Lumbermen's  Mutual  Fire  Ins.  Co. 
v.  Meyer.  107  I".  S.  407.  40  L.  ed. 
810;  Gale  v.  So,  Building  &  L.  Ass'n. 
117  Fed.  732:  Buckingham  &  Hecht 
v.    North    German    Fire    Ins.   Co.   of 


New  York,  149  Fed.  622;  Castagnino- 
v.  Mutual  Reserve  Fund  Life  Ass'n, 
C.  C.  A.,  157  Fed.  29.  Overruling 
several  cases  to  the  contrary  pre- 
viously decided  in  the  Circuit 
Courts. 

15  St.  Clair  v.  Cox.  106  l".  S.  350,. 
356,  27  L.  ed.  222.  225. 

16  Mr.  Justice  Field  in  St.  Clair 
v.  Cnx.  106  L".  S.  350.  350.  27  L. 
ed.  222.  225:  Railroad  Co.  v.  Harris, 
12  Wall.  (15.  SI.  20  U  ed.  354.  358; 
Old  Wayne  Life  Ass'n  v.  McDon- 
ough.  204  U.  S.  S.  21.  51  L.  ed. 
345,  350;  llaydcn  y.  Androscoggin 
Mills,  1  I'.d.  93;  Estes  v.  Belford,  22 
Fed.  275. 


582  SUBPCEXA    TO    ANSWER.  [§     104: 

not;  however,  encroach  upon  that  principle  of  natural  justice 
which  requires  notice  of  a  suit  to  a  party  before  he  can  be 
bound  by  it.  It  must  be  reasonable,  and  the  service  provided 
for  should  be  only  upon  such  agents  as  may  be  properly  deemed 
representatives  of  the  foreign  corporation.  It  has  been  said, 
"that  in  the  absence  of  a  voluntary  appearance,  three  condi- 
tions must  concur  or  co-exist  in  order  to  give  the  Federal  courts 
jurisdiction  in  personam  over  a  corporation  created  without 
territorial  limits  of  the  State  in  which  the  court  is  held,  viz : 
(1)  It  must  appear  as  a  matter  of  fact  that  the  corporation  is 
carrying  on  its  business  in  such  foreign  State  or  district;  (2) 
that  such  business  is  transacted  or  managed  by  some  agent  or 
officer  appointed  by  and  representing  the  corporation  in  such 
State;  and  (3)  the  existence  of  some  local  law  making  such 
corporation,  or  foreign  corporations  generally,  amenable  to 
suit  there,  as  a  condition,  express  or  implied,  of  doing  business 
in  the  State.17  It  seems  that  by  the  common  law  a  court  has 
jurisdiction  over  a  foreign  corporation  to  enforce  a  cause  of 
action  arising  in  the  jurisdiction.18  Service  upon  an  agent  who 
stood  in  no  representative  character  to  the  company,  whose 
duties  were  limited  to  those  of  a  subordinate  employee  or  to 
a  particular  transaction,  or  whose  agency  had  ceased  when  the 
matter  in  dispute  arose,  would,  probably,  be  held  insufficient; 19 
but  where,  while  transacting  business  there,  it  had  appointed 
an  agent,  for  the  purpose  of  the  service  of  process,  and  his  au- 
thority had  not  been  revoked,  the  corporation  was  held  to  be 
subject  to  the  jurisdiction.20  A  State  statute  providing  that 
a  public  officer  shall  be  the  attorney  in  fact  for  every  foreign 
corporation  doing  business  in  the  State  and  every  non-resident 
domestic  corporation,  with  authority  to  accept  service  of  process 
on  its  behalf,  is  constitutional,  so  far  as  actions  upon, contracts 
made  within  the  State  are  concerned,  21  but  not,   it  has  been 

17  U.  8.  v.  Am.  B.  Tel.  Co..  29  359.  3(i0.  27  L.  ed.  222.  220 ;  Mexican 
Fed.  17.  35,  per  Jackson.  J.  See  C.  Ry.  Co.  v.  Pinkney,  14!)  U.  S.  194, 
Maxwell  v.  Atehinson,  T.  ft  S.  F.  R:  37  L.  ed.  (399;  Maxwell  v.  Atchi- 
Co.,  34  Fed.  286,  2S9:  Buffalo  Glass  son.  T.  &  S.  F.  R.  Co.,  34  Fed.  286; 
Co.  v.  Manufacturer's  (Mass  Co.,  142  Carron  Iron  Co.  v.  McClaren.  5  II.  L'. 
Fed.   373.                                '  C.   416. 

18  Xewhy  v.  Yon  Opper.  etc..  Co.,  20  Jim  v.  Empire  State-Idaho  Min- 
L.  R.  7  Q.  B.  293.  inp-  ft  Developing  Co..  156  Fed.  797. 

19  St.  Clair  v.  Cox,  106  I".  S.  350.  21  Saint    Mary's    Franco-American 


164] 


SERVICE   OX   OOBPOKATIOKS. 


583 


held,  as  regards  suits  upon  contracts  executed  in  another  State 
with  citizens  of  the  State  where  the  suit  is  brought,  although 
the  defendant  has  transacted  some  business  in  the  latter  State.22 
It  has  been  held  that  the  Superintendent  of  the  Insurance  De- 
partment of  the  State  of  Xew  York  cannot  be  served  by  mail ; 
and  that  he  has  no  power  to  waive  a  defect  in  the  service  of 
process  upon  him  so  as  to  bind  a  foreign  insurance  company.23 
In  order  thus  to  subject  itself  to  the  service  of  process  the  for- 
eign corporation  must  actually  transact  business  in  the  district 
where  the  suit  is  brought.24     The  maintenance  of  an  office  or 


Petroleum  Co.  v.  West  Virginia.  203 
U.  S.  183,  51  L.  ed.  144,  7  Ann. 
(as.    1018. 

22  Old  Wayne  Life  Ass'n  v.  Mc- 
Donough.  204  U.  S.  8,  51  L.  ed. 
345:  Simon  v.  Southern  Ry.  Co., 
C.  C.  A.,  195  Fed.  50. 

23  Farmer  v.  National  Life  Ass'n, 
50   Fed.  829. 

24  Cooper  Mfg.  Co.  v.  Ferguson, 
113  U.  S.  727,  28  L.  ed.  1137:  Hay- 
den  v.  Androscoggin  Mills.  1  Fed. 
93;  Zambrino  "  Galveston,  H.  & 
S.  A.  Ry.  Co..  38  Fed.  449;  Riddle 
v.  X.  Y.,  L.  E.  &  W.  R.  Co..  39  Fed. 
290;  Maxwell  v.  Atchison.  T.  &  S. 
F.  R.  Co.,  37  Fed.  28G ;  Filli  v.  D., 
L.  &  W.  R.  Co.,  37  Fed.  65:  Den- 
ton v.  International  Co.  of  Mexico, 
36  Fed.  1;  Block  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  21  Fed.  529;  Johnson 
v.  Computing  Scale  Co..  139  Fed. 
339;  Phelps  v.  Connecticut  Co.,  188 
Fed.  7(15:  Cliinn  v.  Foster-Millmrn 
Co.,  195  Fed.  158;  Cody  Motors  Co. 
v.  Warren  Motor  Car  Co.,  196  Fed. 
254.  That  otherwise,  the  statute 
would  lie  unconstitutional,  was  held 
in  Moredock  v.  Kirhy.  118  Fed.  180; 
Cella  Commission  Co.  v.  Bohlinger, 
C.  C.  A.,  8  L.R.A.(X.S.)  .->37,  147 
Fed.  419.  See  Brooks  v.  Dun.  51- 
Fed.  138.  It  has  been  held  that 
the  following  acts  do  no&  amount  to 
a  transaction  of  business  within  the 


State,  which  will  subject  a  foreign 
corporation  to  the  jurisdiction  of 
the  courts,  State  or  Federal,  there 
held:  A  single  act  of  business,  such 
as  the  making  of  a  contract  there 
for  the  sale  of  an  article  to  be 
manufactured  elsewhere  and  there 
delivered,  when  there  was  no  pur- 
pose to  do  any  other  business  or  to 
have  a  place  of  business  within  the 
district.  Cooper  Mfg.  Co.  v.  Fergu- 
son. 113  U.  S.  727.  735,  28  L.  ed. 
1137,  1139;  Good  Hope  Co.  v.  Rail- 
way B.  F.  Co..  22  Fed.  635;  Maxwell 
v.  Atchison.  T.  &  S.  F.  R.  Co..  34 
Fed.  286;  Frawlev  v.  Pennsylvania 
Cas.  Co..  124  Fed.  259.  Cf.  Doe  v. 
Springfield  B.  Co..  C.  C.  A..  104 
Fed.  684;  Eiricli  v.  Donnelly  C.  Co., 
C.  C.  A.,  105  Fed.  1.  The.  residence 
of  three  directors  of  the  corporation 
and  its  assistant  secretary,  who.  at 
various  times,  received  and  gave  in- 
formation indirectly  affecting  the 
business  of  the  corporation  else- 
where. Earle  v.  Chesapeake  &  O. 
Ry.  Co..  127  Fed.  235.  The  residence 
of  the  officers  or  directors  served. 
and  a  by-law  providing  that  the  di- 
rectors may  meet  within  the  dis- 
trict once  a  month,  where  there  is 
no  proof  <>f  a  compliance  with  such 
a  by-law.  Con'ley  v.  Mathieson 
Alkali  Works.  190  D.  S.  406.  40Sr 
411.  47   L.  ed.    1113.   1114.   1115. 


584 


SUBPCENA    To    ANSWER. 


[§   1G 


The  maintenance  <if  an  ollice  for 
the  registration  of  transfers  of 
stock,  the  meeting  of  the  directors 
at  the  office  of  one  of  them,  and  the 
maintenance  of  a  bank  account, 
where  it  was  not  shown  what  busi- 
ness had  been  transacted  at  such 
meetings,  nor  how  recently  before 
the  attempted  service  such  meeting 
had  been  held.  Honeyman  v.  Col- 
orado Fuel  &  Iron  Co.,  133  Fed.  96. 
That  the  holding  of  directors'  meet- 
ings is  an  element  to  be  considered 
in  determining  whether  a  corpora- 
tion is  found  within  the  State,  is 
held  in  Sleicher  v.  Pullman  Co..  170 
Fed.  365.  That  so  in  the  trans- 
fer of  stock  is  holding.  Ibid;  West- 
inghouse  A.  B.  Co.  v.  Great  X. 
Ry.  Co.,  C.  C.  A.,  88  Fed.  258.  The 
presence  of  the  principal  officers  of 
a  corporation  when  they  have  with 
them  property  of  the  corporation 
merely  for  the  purpose  of  exhibition, 
does  not  make  the  corporation  liable 
io  the  service  of  process  upon  them. 
Carpenter  v.  Westinghouse  Air- 
Brakc  Co.,  32  Fed.  434.  See  Reif- 
snider  v.  American  Imp.  Pub.  Co., 
45  Fed.  433;  Donovan  v.  Dixieland 
Amusement  Co..  152  Fed.  661.  See 
Cody  Motors  Co.  v.  Warren  Motor 
Car  Co.,  196  Fed.  2.54.  The  attend- 
ance of  the  secretary  of  the  corpora- 
tion upon  the  taking  of  depositions, 
in  a  suit  to  which  his  company  is 
a  party.  Ladd  Metals  Co.  v.  Am- 
erican Mining  Co.,  152  Fed.  1008. 
The  transaction  of  business  by  an- 
other company,  which  owns  practi- 
cally its  entire  capital  stock.  Peter- 
eon  v.  Chicago,  Rock  Island  &  Pa- 
cific Ry.  Co.,  205  U.  S.  364.  51  L. 
ed.  841.  The  maintenance  of  an  of- 
fice with  an  agent,  merely  for  the 
solicitation  of  business  and  without 


authority  to  make  contracts.  Green 
v.  Chicago,  B.  &  Q.  Ry.  Co.,  20:>  U. 
S.  530,  51  L.  ed.  91 0;  Denver  & 
Rio  Grande  R.  Co.  v.  Roller  Co.,  C. 
C.  A.,  49  L.R.A.  77,  100  Fed.  738; 
Weller  v.  Pennsylvania  R.  Co.,  113 
Fed.  502 ;  Earle  v.  Chesapeake  & 
O.  Ry.  Co..  127  Fed.  235;  Buffalo 
Glass  Co.  v.  Manufacturers'  Glass 
Co..  142  Fed.  273;  McGuire  v.  Great 
Northern  Ry.  Co..  155  Fed.  230; 
West  v.  Cincinnati,  N.  O.  &  T.  P. 
Ry.  Co.,  170  Fed.  349;  Hefner  v. 
Am.  Tube  &  Stamping  Co..  163  Fed. 
S66;  William  Grace  Co.  v.  Henry 
Martin  Brick  Mach.  Mfg.  Co..  C.  C. 
A.,  174  Fed.  131;  Fawkes  v.  Am. 
Motor  Car  Sales  Co.,  176  Fed.  1010; 
Cody  Motors  Co.  v.  Warren  Motor 
Car  Co.,  196  Fed.  254;  although 
samples  are  shown  there,  Cody  Mo- 
tors Co.  v.  Warren  Motor  Car  Co., 
196  Fed.  254,  and  repairs  there 
made.  Fawkes  v.  Am.  Motor  Car 
Sales  Co.,  176  Fed.  1010.  The  col- 
lection of  news  paid  for  by  the  item. 
Evansville  Courier  Co.  v.  United 
Press,  74  Fed.  918.  Advertisements 
Boardman  v.  S.  S.  McClure  Co.,  123 
Fed.  614.  The  negotiations  of  loans 
upon  a  mortgage,  and  a  successful 
application  to  have  the  bonds  there- 
by secured  listed  on  the  stock  ex- 
change. Clews  v.  Woodstock  Iron 
Co.,  44  Fed.  31.  The  lease  by  a 
foreign  to  a  domestic  corporation  of 
personal  property,  and  the  payment 
by  the  latter  to  the  former  of  a  part 
of  the  profits  derived  from  the  use 
of  such  property  within  the  jurisdic- 
tion of  the  court.  U.  S.  v.  Am.  B. 
Tel.  Co.,  29  Fed.  17.  The  acceptance 
of  a  lease  by  a  railroad  within  a 
State,  where  the  terms  of  the  lease 
did  not  appear.  Green  v.  Chicago. 
B.    &    Q.    Ry.    Co..    147    Fed.    767. 


164] 


SERVICE   OX   CORPORATIONS. 


585 


storeroom,  where  goods  are  kept  for  sale,25  or  where  contracts 
are  closed,26  or  railroad  tickets  sold,27  or  the  maintenance  of  an 
office  there  by  its  president,  where  he  performs  his  presidential 
duties,  is  sufficient  to  authorize  service  upon  him  within  a 
foreign  State.28  An  insurance  company  is  engaged  in  business 
in  a  State  when  it  is  accustomed  to  send  its  agents  there  to 
adjust  fire  losses.29  An  insurance  company  does  not  cease  to 
do  business  in  a  State  when  it  receives  premiums  upon  pol- 
icies previously  issued  there;  although  such  premiums  are  sent 
by  the  insured  to  an  agent  in  another  State,  and  the  company 
issues  no  new  policies  in  the  former  State.30     Where  the  husi- 


25  Toledo  Computing  Scale  Co.  v. 

Computing  Scale  Co.,  C.  C.  A.,  142 
Fed.  919;  Cliadeloid  Chemical  Co.  v. 
Chicago  Wood  Finishing  Co.,  180 
Fed.  770.  But  see  Hefner  v.  Am. 
Tube  &  Stamping  Co..  163  Fed.  866. 
26Sleicher  v.  Pullman  Co.,  170 
Fed.  365;  Michigan  Aluminum 
Foundry  Co.  v.  Aluminum  Castings 
Co..  190  Fed.  879.  Where  the  cor- 
poration acted  as  a  broker  of  grain 
and  stock  it  was  held  to  transact 
business  in  a  State  where  it  main- 
tained an  office,  at  which  orders, 
written  or  oral,  were  received  by 
persons  called  its  correspondents, 
the  correspondents  participating  in 
neither  the  loss  nor  the  profits  of 
the  transaction.  Board  of  Trade  v. 
Hammond  Elevator  Co.,  198  U.  S. 
424,  49  L.  ed.  1111. 

27  Chesapeake  &  0.  Ry.  Co.  v.  Sto- 
janowski,  C.  C.  A.,  191  Fed.  720. 
But  not  the  sale  by  another  corpora- 
tion, in  connection  with  its  own 
tickets,  of  coupons',  good  over  the 
defendant's  railway,  accounting  each 
month  to  the  defendant  for  its  pro- 
portion of  the  proceeds.  Earle  v. 
Chesapeake  &  O.  Ry.  Co.,  127  Fed. 
235. 

28  Revans  v.  So.  Mo.  &  A.  R.  Co., 
114  Fed.  982. 

29  Pennsylvania  Lumbermen's 


Mutual  Fire  Ins.  Co.  v.  Meyer.  197 
U.  S.  407.  49  L.  ed.  810.  But  see 
Louden  Machinery  Co.  v.  Malleable 
Iron  Co..  127  Fed.  1008.  It  has 
been  held  that  service  upon  an  agent 
of  a  foreign  corporation,  who  lias 
been  sent  into  the  State  to  negotiate 
with  the  pkuntiff  for  a  settlement  of 
the  controversy,  is  sufficient:  al- 
though the  company  has  never  done 
any  other  business  within  the  juris- 
diction. Brush  Creek  Coal  &  Min. 
Co.  v.  Morgan-Gardner  El.  Co..  136 
Fed.  505  (W.  D.  Mo.).  See  Con- 
necticut Mutual  Life  Ins.  Co.  v. 
Spratley.  172  U.  S.  002,  43  L.  ed. 
569;  where,  however,  the  company 
was  transacting  business  within  the 
State.  Contra.  Louden  Machinery 
Co.  v.  Am.  Malleable  Iron  Co..  127 
Fed.  1008  (S.  D.  la.)  ;  Brush  Creek 
Coal  &  Mining  Co.  v.  Morgan-Gard- 
ner Electric  Co..  136  Fed.  505  (W. 
D.  Mo.);  Buffalo  Sandstone  Brick 
Co.  v.  American  Sandstone  Brick 
Machinery  Co..  141  Fed.  211  ( W. 
D.  X.  Y.);  Wilkins  v.  Queen  City 
Savings  Bank  &  Trust  Co.,  154  Fed.. 
173  (S.  I).  X.  Y.i.  lloyt  v.  Ogden 
Portland  Cement  Co..  185  Fed.  B86 
(X.  D.  X.  Y.).  Where  service  upon 
the  President  was  held  to  be  suffi- 
cient. 

30  Connecticut  Mut.   Life  Ins.  Co- 


5S6 


SUBPCEXA    TO    AKSWER. 


[§   104 


ness  within  the  State  has  ceased,  and  there  is  no  official  ap- 
pointment of  an  agent  for  the  service  of  process  outstanding 
unrevoked,  service  upon  a  former  agent  is  insufficient.31  Serv- 
ice upon  the  president,32  secretary,33  or  other  principal  officers 34 
of  a  foreign  corporation  within  the  State,  is  not  sufficient  to 
confer  jurisdiction  upon  the  court,  unless  the  corporation  is 
found  there  or  waives  the  objection.  A  surety  company  may  be 
served  in  any  district  where  it  is  found  in  a  suit  upon  a  bond 
Or  undertaking  given  in  such  district  under  the  statutes  of  the 
United  States.35  Service  upon  a  surety  company  is  made  upon 
its  agent  in  the  district  appointed  by  it  for  that  purpose  or  in 
his  absence,  or,  in  case  there  is  no  such  appointment,  by  service 
upon  the  clerk  of  the  court  where  the  suit  is  brought.36  Service 
of  process  in  the  manner  prescribed  by  the  State  practice  may 
subject  a  foreign  corporation  to  the  jurisdiction  of  the  Federal 
court,  in  a  case  over  which  the  State  statutes  deprive  her  courts 
of  jurisdiction  because  the  cause  of  action  arose  without  the 
State.37 

By  stipulation  in*the  suit,  the  corporation  may  be  estopped 
from  objecting  that  a  person  upon  whom  service  was  made  was 
not  authorized  to  represent  it.38  A  marshal's  return,  which 
recited  the  delivery  of  a  true  copy  on  the  managing  agent  of 
a  foreign  corporation  found  in  the  county,  that  he  was  the  only 
agent  of  the  corporation  therein,   that   it  was   a  non-resident. 


v.    Spratley,    172   U.    S.   602,   43   L. 
ed.  569. 

31  Cooper  v.  Brazelton,  C.  C.  A., 
135   Fed.  470. 

32  Carpenter  v.  YYestinghouse  Air- 
Brake  Co..  32  Fed.  434;  Hoyt  v. 
Ogden  Portland  Cement  Co.,  185 
Fed.  889.  The  New  York  courts  still 
follow  the  statute  (Code  of  Civil 
Procedure,  §  432)  authorizing  serv- 
ice upon  a  foreign  corporation  by 
delivering  a  copy  of  the  summons  to 
the  president,  secretary  or  treasurer 
within  the  State,  whether  the  de- 
fendant transacts  business  there  or 
not.  Pope  v.  Terre  Haute  Car  & 
Mfg.  Co.,  87  X.  Y.  137;  Sadler  v. 
Boston1    &    Bolivia   Rubber   Co.,   140 


App.  Div.  (X.  Y.)  3C7,  aff'd.  202 
X".  Y.  547;  Mallory  v.  Yirginia  Hot 
Springs  Co.,  Xew  York  Supreme 
Court  (Kings  County,  Sp.  Tm.)  X". 
Y.  L.  J.  February  13,  1913. 

33  Phelps  v.  Connecticut  Co.,  188 
Fed.  7G5. 

34  Carpenter  v.  YVestinghouse  Air- 
Brake  Co.,  32  Fed.  434. 

35  28  St.  at  L.,  p.  279,  supra,  §§ 
5,  61. 

36  Ibid. 

37  Carstairs  v.  Mechanic's  &  Trad- 
ers' Ins.  Co.  of  X.  Y.,  13  Fed.  823. 

38  Cowden  v.  Wild  Goose  Min- 
ing &  Trading  Co.,  C.  C.  A.,  199 
Fed.   561. 


§  105  |  SUBSTITUTED  SERVICE.  5>7 

,and  that  none  of  its  principal  officers  resided  in  the  State,  and 
that  all  of  its  officers,  except  its  managing  agent,  were  absent 
from  the  State;  was  held  to  be  prima  facie  evidence  of  legal 
service;39  but  a  return  of  service  tipon  a  general  agent  was 
not.40  A  return  that  a  foreign  corporation  was  found  within 
the  State,  may  be  contradicted.41  It  has  been  held  that  upon  a 
motion  to  set  aside  service  upon  a  foreign  corporation  because 
the  writ  was  not  served  upon  the  proper  person,  the  defendant 
need  not  show  upon  whom  the  service  should  be  made  or  that 
it  has  no  agent  in  the  district.42  A  plea  in  abatement,  which 
denied  that  the  person  served  "is"  an  agent  or  officer  of  the 
corporation,  was  held  to  be  insufficient;  since  it  did  not  negative 
the  fact  that  he  was  such  an  agent  on  the  date  of  service.43 
Under  the  former  practice,  it  was  held  that  a  plea  to  the  juris- 
diction did  not  raise  the  question  that  the  stenographer  in 
the  employ  of  defendant  transacting  business  within  the  State 
was  not  the  proper  person  upon  whom  service  should  be  made.44 
A  corporation  is  not  entitled  to  a  trial  by  jury  of  the  questions 
whether  it  was  transacting  business  within  the  State  and 
whether  the  person  upon  whom  service  was  made  was  its  au- 
thorized representative.45 

§  165.  Substituted  service  of  a  subpoena.  Independently 
of  an  express  statutory  authority,  there  is  no  power  in  a  court 
of  equity  to  order  actual  personal  service  to  be  effected  upon  a 
defendant  beyond  its  territorial  jurisdiction;1  but,  in  a  few 
cases,  such  courts  have  for  more  than  a  centurv  assumed  the 
power  of  ordering  service  to  be  made  within  their  jurisdiction 
upon  some  person  for  the  absent  defendant,  and  have  treated 
such  service  as  valid.2    In  suits  to  stay  proceedings  at  law  in  the 

39  C'hinn  v.  Foster-Milburn  Co.,  44  Cliadeloid  Chemical  Co.  v.  Cbi- 
195   Fed.   158.                                                cago  Wood   Finishing  Co.,  180    bed. 

40  Swarts     v.     Christie     Grain     &       770. 

Stock    Co.,    100    Fed.    388:  45  Peper    Automobile    Co.    v.    Am. 

41  I'eper  Automobile  Co.  v.  Am.  Motor  Car  Sales  Co..  1SH  Fed.  245. 
Motor  Car  Sales  Co.,  180  Fed.  245;  §  105.  1  This  passage  was  quoted 
supra,   §    163.  and  approved  by    Maxev.  .1..   in   Batt 

42  Wall    v.    Chesapeake,   &   O.   Ry.  v.  Proctor,  45   Fed.  515.  5 Hi. 

Co.,    C.    C.   A.,    95    Fed.    398,    Ward,  2|[alcs  v.   Sutton.   1    Dickens  26; 

J.,  dissenting.  s.   c,  sub   nam.      Ilallett  v.   Sutton, 

43  Scott  v.  Stockholders'  Oil  Co.,  12  Simons.  145.  note;  Carter  v.  De 
129    Fed.   015.  Prune.  1    Dickens.  39:    Hyde  v.   For- 


588 


SUBPCEXA    TO    ANSWER. 


[§  165 


same  court,  the  service  of  a  subpoena  upon  the  attorney  of  the 
plaintiff  at  law  may  be  allowed,  and  it  will  then  bind  the  lat- 
ter if  he  be  beyond  the  territorial  jurisdiction  of  the  court.3  It 
has  been  held  that  this  cannot  be  done  after  the  judgment  at  law 
has  been  enforced,  since  the  attorney's  authority  to  represent 
his  client  is  then  terminated.4  Xor  where  an  injunction  is  also 
asked  against  a  non-resident,  who  is  not  a  party  to  the  suit  a 
stay  of  which  is  prayed ; 5  unless  he  is  in  privity  with  one  of 
the  original  defendants,  in  which  case  it  was  held,  that  serv- 
ice might  be  made  upon  him  in  another  district.6  A  similar 
practice1  would  in  all  probability  be  allowed  in  serving  process 
under  bills  not  original;  namely,  bills  of  revivor,  supplemental 
bills,  and  bills  of  revivor  and  supplement,  which  are  nothing 
more  than  continuations  of  the  suits  upon  which  they  operate.7 
So.  it  has  been  held:  That,  under  a  bill  to  reform  an  insurance 
policy  pending  an  action  at  law  upon  the  policy,  a  subpoena  may 
be  thus  served  upon  the  attorney  for  the  party  to  the  action  at 
law.8  That  under  a  bill  to  enjoin  the  prosecution  of  a  suit  to 
compel  the  transfer  of  stock,  a  subpoena  may  be  served  upon  the 
attorney  for  the  plaintiff  in  the  former  suit.9  And  that  under 
a  bill  to  collect  out  of  equitable  assets  a  decree  of  the  same 
court  of  equity  for  costs,  such  service  of  a  notice  without  a 
subpoena  is  sufficient.10  The  Federal  courts  have  refused  to  ex- 
tend this  class  of  eases  so  as  to  include  a  bill  of  interpleader,  two 


ster,  1  Dickens.  102;  Lady  Carring- 
ton  v.  Cant il Ion,  Bunb.  U'7:  Hob- 
Louse  v.  Courtney,  12  Simons.  140, 
and  cases  tbere  cited:  Daniell's  Cli. 
Pr.    (2d   Am.  ed.)   502-508. 

3  Dunn  v.  Clarke.  8  Pet.  1.  8  L, 
ed.  84.")-.  Hitner  v.  Suckley.  2  Wash 
465;  Eckert  v.  Bauert,  4  Wash.  370; 
Ward  v.  Seabry,  4  Wash.  426;  Read 
v.  Consequa,  4  Wash.  174;  Bartlett 
v  Sultan  of  Turkey,  10  Fed.  346. 
Sec  also  Logan  v.  Patrick,  5  (rancli, 
288.  3  L.  ed.  103;  Dunlap  v.  Stetson, 
4    Mason.  340. 

4  Kanims  v.  Stark.  1  Sawyer.  547. 

5  Manning    v.    Berdan,    132    Fed. 
382. 


6  O'Connor  v.  O'Connor,  146  Fed. 
994. 

7  Norton  v.  Hepworth,  1  H.  &  T. 
158;  Dunn  v.  Clarke,  8  Pet.  1,  8  L. 
ed.  845,  p.  449a.  But  see  Henderson 
v.  Meggs,  2  Brown  Ch.  C.  127;  An- 
derson v.  Lewis,  3  Brown  Ch.  C. 
429;  Gardiner  v.  Mason,  4  Brown 
Ch.  C.  478.  This  passage  was  quot- 
ed with  approval  by  Morrow.  J.,  in 
ShainwaW  v.  Davids,  •  60  Fed.  701. 
703. 

8  Abraham  v.  North  German  Fire 
Ins.  Co..  3  L.Pv.A.  188.  37   Fed.  731. 

9Kelley  v.  T.  L.  Smith  Co.,  C. 
C.  A.,  196  Fed.  466. 

lOMaitland  v.  Gibson.  79  Fed. 
136. 


105] 


SUBSTITUTED  SERVICE. 


589 


of  the  defendants  to  which  were  engaged  in  an  action  between 
themselves  in  the  same  court  concerning  the  same  matter,11  al- 
though in  England  such  a  mode  of  service  might  have  been  al- 
lowed.12 Nor,  it  seems,  can  a  subpoena  thus  be  served  under  a  bill 
to  set  aside  a  sale  made  under  a  decree  of  the  same  court  to  which 
persons  are  joined  as  defendants  who  were  not  parties  to  the 
former  suit.13  Substituted  service  of  a  subpoena  to  appear  and 
answer  to  a  cross-bill  has  been  allowed,14  but  not  when  the 
•cross-bill  sought  to  introduce  new  and  distinct  matters  into  the 
original  suit.15  The  safer  practice  when  a  defendant  to  a  cross- 
bill cannot  be  served  personally  seems  to  be  to  procure  an  order 
staying  his  proceedings  in  the  original  cause  until  he  answers 
the  cross-bill.16  Substituted  service  of  process  or  notice  upon 
a  petition  of  intervention  is  allowed  in  the  same  cases  in  which 
it  would  be  allowed  upon  a  cross-bill.17  Substituted  service  has 
also  been  allowed  in  England  upon  the  agent  of  a  defendant  be- 
yond the  jurisdiction,  who  had  authority  to  represent  the  lat- 
ter with  respect  to  the  property  which  was  the  subject  of  the 
suit.18  When  substituted  service  is  wished,  an  order  must  be 
obtained  that  service  upon  the  attorney  employed  in  the  former 


11  Herndon  v.  Ridgway,  17  How. 
424.    15   L.  ed.    100.      See  §   88. 

MMartinius  v.  Helmutfi,  G.  Coo- 
per. 248;  Stevenson  v.  Anderson, 
2  Yes.  &  B.  407.     See  §   88. 

13  Pacific  R.  Co.  of  Mo.  v.  Mo. 
Pae.  Ry.  Co.,  3  Fed.  772;  s.  c,  on 
appeal.  Ill  U.  S.  50.1,  522,  28  L. 
•ed.  498,  504. 

14  Johnson  R.  R.  S.  Co.  v.  Union 
S.  &  S.  Co..  4.T  Fed.  331,  §  201; 
Kingsbury  v.  Buckner.  134  U.  S. 
650,  676,  33  L.  ed.  1047.  1057;  Low- 
enstein  v.  Glidewell.  5  Dill.  325; 
Sawyer  v.  Gill,  3  Woodb.  &  M.  97; 
Segee  v.  Thomas,  3  Blatchf.  11  ;  Ilit- 
ner  v.  Suckley,  2  Wash.  465;  Ander- 
son v.  Lewis.  3  Brown  Ch.  C.  429 ; 
Gardiner  v.  Mason,  4  Brown.  Ch.  C. 
478;  Waterton  v.  Croft,  5  Simons, 
502;   infra,  §  201. 

15  Rubber  Co.  v.  Goodyear,  9  Wall. 
307;     Heath     v.    Frie     Rv.     Co..     9 


Blatchf.  316;  Low  enstein  v.  Glide- 
well.  5  Dillon  325  ;  Ledbetter  v.  Man- 
dell,  141  App.  Div.  (N.  Y.)  556, 
aff'd  205  X.  Y.  537.  But  see  Kings- 
bury v.  Buckner,  134  U.  S.  650,  676, 
33  L.  ed.  1047,  1057.  See  infra, 
§  201. 

16  Sawyer  v.  Gill.  3  W.  &  M.  97; 
Segee  v.  Thomas.  3  Blatchf.  11  ;  Hit- 
ner  v.  Suckley.  2  Wash.  465;  Ander- 
son v.  Lewis,  3  Brown  Ch.  C.  429; 
Gardiner  v.  Mason,  4  Brown  Ch.  C. 
478;  Watertown  v.  Croft,  5  Simons, 
502. 

"  Fidelity  T.  &  S.  D.  Co.  v.  Mo- 
bile St.  Ry.  Co..  53  Fed.  §50;  in- 
fra, §  259. 

18  Hobhouse  v.  Courtney,  12  Sim. 
140;  Fidelity  T.  &  S.  D.  Co.  v.  Mo- 
bile St.  Ry.  Co.,  53  Fed.  850;  Gas- 
quet  v.  Fidelity  T.  &  S.  Y.  Co., 
C.  C.  A.,  57  Fed.  80;  Gregory  v. 
Pike.   79   Fed.   520. 


;>*)0  srillMKXA     TO    ANSWER.  [§     166 

suit  or  action  shall  be  (loomed  good  service.19  If  service  be 
made  upon  the  attorney  without  such  an  order  having-  beeii 
obtained,  it  may  be  set  aside,20  and  all  subsequent  proceedings 
will  be  void.21  The  motion  for  such  an  order  ordinarily  may  be 
ex  parte.**  It  must  be  supported  by  an  affidavit,  made  by  the 
plaintiff  or  by  some  person  having  personal  knowledge  of  the 
facts  therein  stated,  setting  forth  the  reasons  why  such  service 
is  necessary  and  verifying  the  allegations  of  the  bill.23  Written 
admissions  of  the  defendant  may,  however,  be  sufficient  to 
support  the  motion  without  such  affidavit.24  A  previous  re- 
quest of  the  attorney  and  his  refusal  to  accept  service  of  the 
subpoena  are  not  a  necessary  preliminary  to  such  a  motion.25 
Where  the  bill  is  demurrable  for  want  of  equity,  the  motion  for 
substituted  service  may  be  denied.26  Where  the  order  has  been 
improvidently  made,  it  may  be  set  aside  on  motion  at  the  same 
term.27 

§  166.  Statutory  service  of  a  subpoena.  The  statutes  of 
the  United  States,  which  in  this  respect  are  analogous  to  those 
of  England,1  provide:  "That  when  in  any  suit,  commenced  in 
any  district  court  of  the  United  States,  to  enforce  any  legal 
or  equitable  lien  upon  or  claim  to,  or  to  remove  any  incum- 
brance or  lien  or  cloud  upon  the  title  to  real  or  personal  prop- 
erty within  the  district  where  such  suit  is  brought,  one  or  more 
of  the  defendants  therein  shall  not  be  an  inhabitant  of  or  found 
within  the  said  district,  or  shall  not  voluntarily  appear  thereto, 
it  shall  be  lawful  for  the  court  to  make  an  order  directing  such 
absent  defendant  or  defendants  to  appear,  plead,  answer,  or 
demur  by  a  dav  certain  to  be  designated,  which  order  shall 
be  served  on  such  absent  defendant  or  defendants,  if  praetica- 

19  Pacific  Ry.  Co.  of  Mo.  v.  Mo.  3  Brown's  C.  C.  12:  Stephen  v.  Cini, 
1'ac.  Ry.  Co.,  3  Fed.  772:  s.  c,  1  4  Ves.  359;  Kenworthy  v.  Accunor, 
McCary,  047;  Daniell's  Ch.  Pr.  (2d       3  Madd.  5.10. 

Am.    edj    502.  24  Royal    Fxch.   Ins.  Co.   v.   Ward, 

20  Il.id.  1    Fowler  Fx.  Pr.  225. 
aKirepory    v.    Pike.    7!>    Fed.    520.  25  French  v.  Roe,   13  Ves.  593. 

22  Daniell's  Cli.  Pr.  (2d  Am.  ed.)  2« Muhlenburg  County  v.  Citizens' 
502.      But    see    Crew    v.    Martin.    1       Nat.    Bank,   t',5   \-\-d.   537. 

Fowler    Fx.    Pr.    225.  2?  Fidelity  T.  &   S.  D.  Co.  v.  Mo- 

23  Pacific    Ry.    Co.    of   Mo.   v.   Mo.       bile  St.   Ry.  Co..  5:!   Fed.  S50. 

Pac   Ry.   to:,   :;    l-Yd.   772:    s.   c.    1  §   166.     *2   Win.   IV.  eh.  33:    4  & 

McGrary,    047:     Dclancy    v.    WalHs.       5    Win.    IV.    ch.    82. 


166] 


STATUTORY  SERVICE. 


591 


ble,  wherever  found,  and  also  upon  the  person  or  persons  in 
possession  or  charge  of  said  property,  if  any  there  be;  or  where 
such  personal  service  upon  such  absent  defendant  or  defend- 
ants is  not  practicable,  such  order  shall  be  published  in  such 
manner  as  the  court  may  direct,  not  less  than  once  a  week  for 
six  consecutive  weeks.  In  case  such  absent  defendant  shall  not 
appear,  plead,  answer,  or  demur  within  the  time  so  limited,  or 
within  some  further  time  to  be  allowed  by  the  court,  in  its  dis- 
<  retion,  and  upon  proof  of  the  service  or  publication  of  said 
order,  and  of  the  performance  of  the  directions  contained  in  the 
same,  it  shall  be  lawful  for  the  court  to  entertain  jurisdiction, 
and  prceed  to  the  hearing  and  adjudication  of  such  suit  in 
the  same  manner  as  if  such  absent  defendant  had  been  served 
with  process  within  the  said  district ;  but  said  adjudication 
shall,  as  regards  said  absent  defendant  or  defendants  with- 
out appearance,  affect  only  the  property  which  shall  have 
been  the  subject  of  the  suit  and  under  the  jurisdic- 
tion of  the  court  therein,  within  such  district;  and  when 
a  part  of  the  said  real  or  personal  property  against  which  such 
proceedings  shall  be  taken  shall  be  within  another  district,  but 
within  the  same  State  said  suit  may  be  brought  in  either  dis- 
trict in  said  State:  Provided,  however.  That  any  defendant  or 
defendants  not  actually  personally  notified  as  above  provided 
may,  at  any  time  within  one  year  after  final  judgment  in  any 
suit  mentioned  in  this  seetion,  enter  his  appearance  in  said 
suit  in  said  Circuit  Court,  and  thereupon  the  said  court  shall 
make  an  order  setting  aside  the  judgment  therein  and  permit- 
ting said  defendant  or  defendants  to  plead  therein  on  payment 
by  him  or  them  of  such  costs  as  the  courts  shall  deem  just;  and 
according  to  law.''2     It  seems  that  this  statute  applies  to  the 


2.Tud.  Code,  §  37,  36  St.  at  L. 
10S7.  A  similar  method  of  service 
is  authorized  in  bankruptcy,  in  case 
personal  service  cannot  be  made.  30 
St.  at  L.,  §  IS,  pp.  544,  551  ;  infra, 
%  07.  All  statutes  which  authorize 
proceedings  against  absent  defend- 
ants and  unknown  heirs  upon  serv- 
ice by  publication  must  he  strictly 
followed.  Hunt  v.  Wickliffe,  2  Pet. 
201  :    Boswell   v.   Otis,   9   How.   330, 


13  L.  ed.  164.  In  Fanning  v.  Krapfl, 
61  Iowa,  417,  420,  the  court  said: 
"A  published  notice  is  not  necessar- 
ily sufficient  if  it  is  such  that  the 
defendant,  upon  actually  seeing  it, 
would  probably  conclude  that  it 
was  intended  for  him.  The  ollice 
of  the  notice  is  in  part  to  give 
the  pendency  of  the  action  noto- 
riety. It  should  be  such  that  others 
than    the    defendant,    seeing    it    and 


592 


SUBPOENA    TO    ANSWER. 


[§   166: 


knowing  the  defendant,  or  knowing 
of  him,  would  not  probably  be  mis- 
led by  it  as  to  the  person  for  whom 
it   was  intended." 

.  In    Karr    v.    Karr.    19    N.    J.    Eq. 
427,  the  court  said:   "Two  substan- 
tial parts  of  the  notice  are  that   it 
shall    not   be   entitled    in    the   cause 
and  shall  be  directed  to  the  defend- 
ant.     The    notice    published    is    en- 
titled   in    the   cause    and    is    not    di- 
rected to  the  defendant,  although  he 
was  named   in   the  title."     In   Pana 
v.  Bowler.   107   U.  S.  529,  27   L.  ed. 
424.    it   was   held    that    the    publica- 
tion by  an  Illinois  court  of  a  notice 
to  the  "unknown  holders  and  owners 
of    bonds    issued    by    the    town    of 
Pana"    was    insufficient    to    acquire 
jurisdiction  over  non-resident  bond- 
holders.    In  Meyer  v.  Kuhn.  65  Fed. 
705.   C.   C.  A.,  per   Fuller.   C.   J.,   it 
was  held  that  publication  of  a  sum- 
mons against  •"Sarah  E.  Meyers,  and 
the  unknown  heirs  of  Henry  Meyers, 
deceased,"  was  insufficient  to  acquire 
jurisdiction    over    Elizabeth    Meyer, 
who   was  the  executrix   and  devisee 
of  Henry  Meyer,  deceased,  and  was 
so    described    in    the    bill.      That    a 
judgment  against   George  W.  Leslie 
was  not  affected  by  a  partition  suit 
in  which  the  judgment  creditor  was 
named   in   service  by  publication  as 
George  H.  Leslie.     In   Hardester  v. 
Sharretts.  84  Md.  140.  34  Atl.  1122, 
that  where  a  bill  was  filed  "against 
the    unknown    heirs    of    the   children 
of    Benjamin    Hardester,    deceased." 
a    publication    summoning   the    chil- 
dren of  Abraham  Hardester  was  in- 
sufficient,   although    they    were    the 
1  <  rsons   referred  to   in   the  bill   and 
came  within  that  description,  Abra- 
ham being  the  son  of  Benjamin.     In 
Purdy   v.   Henslee,  97   Til.  389.   that 
a    publication   addressed  to  "the  un- 
known   heirs    and    legal    representa- 
tives  of   Thomas   Osborn,   deceased/' 


was  insufficient  to  bring  the  heirs  at 
law   of    Susanna    Osburn   before   the 
court,    although    her    heirs    at    law- 
were  the  same  as  those  of  Thomas. 
In  Ferriss  v.  Louis,  2  Tenn.  Ch.  291, 
that    a    publication    against    the    un- 
known heirs  of  Doolin  did  not  bring 
before  the  court  Doolin's  devisees  in 
remainder.     In  Corrigan  v.  Schmidt. 
126    Mo.    304.    28    S.    W.    S74:    that 
service       by       publication       against 
"Owen   Corrigan"  and   "Elisha   Cor- 
rigan" did  not  bind  John  Owen  Cor- 
rigan and  Elizabeth  Alicia  Corrigan. 
In   Colton   v.  Rupert.  60  Mich.  318,. 
27    X.    W.    .520.    that    a    publication 
against    "Grant    B.    Hunt"'    did    not 
bind  Garrett  B.  Hunt.     In  Entrekin 
v.  Chambers.  11  Kan.  308.  that  serv- 
ice  by   publication    against    "Robert 
Brimford"  did  not  bind  Robert  Bin- 
ford.     In   Chamberlain   v.   Blodgett, 
96    Mo.    482.    10    S.    W.    44.    that    a 
publication    against  "M.   B.   Miller" 
did  not  bind  M.  B.  Milieu,  although 
the  tract  books  of  the  county  gave 
the  name  of  the  landowner  as  Mil- 
lei*.     In   Marx  v.   Hanthorn.   148   U. 
S.  172.  37  L.  ed.  410,  that  notice  of 
the  sale  for  taxes  of  the  property  of 
"Ida  J.  Hawthorn"  gave  no  jurisdic- 
tion   over    the    property    of    Ida    J. 
Hanthorn.      In    Gonzalia   v.   Barels- 
maii.  143  111.  634.  32  N.  E.  532.  that 
an  affidavit  referring  to  "Fred  Mey- 
ers''  could   not  be   construed   as  ap- 
plicable    to    Fred    Meyer.      But    see 
Smurr    v.    State.    88    Ind.    504.      In 
Detroit  v.  Detroit   City  Ry.  Co..  54 
Fed.     1.    that    where    the    advertise- 
ment named  the  defendant  as  "The 
Washington  Trust  Co.."  a   Michigan 
court    did    not    acquire    jurisdiction 
over  "The  Washington  Trust  Co.  of 
the  City  of  New  York." 

But  in  Steinmann  v.  Strimple,  29 
Mo.  App.  47S.  it  was  held  that  an 
order  intended  for  Benjamin  F.  S. 
was     sufficient     when     directed     to 


§   106] 


STATUTORY    SERVICE. 


;93 


District  Court  for  Porto  Rico  in  a  case  where  the  same  has  gen- 
eral jurisdiction.3 

The  statute  applies,  although  there  is  but  oue  defendant.4 
It  is  no  defense  to  such  a  suit  that  neither  of  the  defendants 
thus  served,  nor  the  plaintiff,  is  a  resident  of  the  district.5  Nor, 
it  has  been  held,  that  the  property  in  question  has  been  at- 
tached by  a  State  sheriff.6  Process  can  thus  be  served  in  an 
action  of  ejectment ; 7  in  a  suit  to  foreclose  a  railway,8  or  other 
mortgage,9  but  not  so  as  to  justify  a  decree  for  the  deficiency 


Frank  S.,  that  being  the  name  by 
which  Benjamin  was  usually  known. 
In  Lane  v.  Innes,  43  Minn.  ]37,  45 
N.  W.  4,  that  a  change  of  the  name 
of  "Berlah  M.  Plimpton"  to  "Beulah 
M.  Plimpton"  was  not  fatal.  That 
a  partition  sale  was  valid  when  the 
parties  had  been  designated,  by  pub- 
lication, under  thirteen  fictitious 
names,  as  "being  fictitious,  and  be- 
ing intended  to  designate  the  wife, 
if  any,  of  the  said  Lawrence  Kelly, 
and  if  he  be  dead,  his  widow,  heirs 
at  law,  devisees,  and  their  legal  rep- 
resentatives, and  their  wives,  wid- 
ows, or  husbands,  if  any,  and  the 
heirs  at  law,  devisees,  and  legal  rep- 
resentatives of  any  who  may  be 
dead."  Snyder  v.  Parezo,  151  App. 
Div.  (N.  Y.)  110.  In  Emery  v. 
Kipp,  154  Cal.  83.  19  L.R.A.(N.S.) 
983,  129  Am.  St.  Rep.  141,  16  Ann. 
Cas.  792,  97  Pac.  17,  that  a  judg- 
ment quieting  the  title  to  land 
deeded  to  a  woman  under  the  name 
of  Louisa  Munro  was  not  void  be- 
cause, when  sued,  she  was  married 
and  was  known  as  Madeline  Louisa 
Munro  Emery,  the  record  of  her 
marriage  designating  her  as  Made- 
line L.  Munro.  D'Autremont  v.  An- 
derson Iron  Co.,  104  Minn.  165,  17 
L.R.A.(KS.)  236,  124  Am.  St.  Rep. 
615,  15  Ann.  Cas.  114.  In  Green  v. 
Myers  (Mo.  App.),  72  S.  W.  128, 
Fed.  Prac.  Vol.  I.— 38. 


that  Seibert  and  Sibert  are  idem 
sonans,  and  the  variance  between 
them  immaterial.  In  Gottlieb  v. 
Alton  Grain  Co.,  87  App.  Div.  (N. 
Y. )  380,  a  judgment  against  W.  B. 
Gottlieb  was  enforced  by  an  action 
in  another  State  against  William  B. 
Gottlieb.  In  White  v.  McClellan,  62 
Md.  347.  that  the  omission  of  a  mid 
die  initial  of  a  party's  name  did  not 
invalidate  the  notice;  and  in  Fan- 
ning v.  Krapfl,  61  Iowa,  417;  s.  c, 
68  Iowa,  544,  14  N.  W.  727,  16  N. 
W.  293,  26  N.  W.  133,  and  Buchanan 
v.  Roy's  Lessee,  2  Ohio  St.  257,  that 
the  publication  was  sufficient  where 
the  names  were  incorrectly  spelled 
but  they  were  accompanied  by  an- 
other description  which  made  the 
identification  clear. 

3  Perez  v.  Fernandez,  220  U.  S. 
224,  55  L.  ed.  443. 

4  Ames  v.  Holderbaum,  42  Fed. 
341;  Wheelwright  v.  St.  L.,  N.  O. 
&  O.  C.  Tr.  Co.,  50  Fed.  709;  su- 
pra, §  61. 

5  Ibid. 

6  Wheelwright  v.  St.  L.,  N.  O.  & 
O.  C.  &  Tr.  Co.,  50  Fed.  709;  supra. 
§  50. 

7  Spencer  -  v.  Kansas  City  S.  F. 
Co.,  56  Fed.  741. 

8  Farmers'  L.  &  Tr.  Co.  v.  Hous- 
ton &  T.  C.  Ry.  Co.,  44  Fed.  115. 

9  Du  Pont  v.  Abel,  81  Fed.  534. 


.V.I  I 


SUBPCEXA    TO    ANSWER. 


L§  166 


against  a  mortgagor,  who  does  not  appear;10  in  a  suit  to 
foreclose  an  attorney's  lien  upon  personalty11  a  stockholders' 
lien  upon  the  books  and  funds  of  a  foreign  corporation,  after 
its  dissolution,  in  the  State  of  its  domicile.12  In  a  partition 
suit 13  and  a  suit  to  quiet  title ; 14  for  example,  a  suit  by  the 
United  States  to  cancel  land  patents,15  or  by  a  private  individual 
to  cancel  a  deed,16  or  by  stockholders  to  set  aside  a  judgment  in 
the  district  against  a  foreign  corporation  obtained  by  non-resi- 
dents,17 or  to  cancel  stock18  and  bonds,19  or  by  claimants  to  shares 
of  stock  in  a  domestic  corporation  to  set  aside  an  unlawful  trans- 
fer of  their  shares  and  enforce  their  right  to  new  certificates,20  al- 
though the  stock  certificates  and  bonds  sought  to  be  cancelled 


10  ibid. 

Ulngersoll  *.  Coram,  211  U.  S. 
335,  53  L.  ed.  208;  reversing  on  an- 
other point  C.  C.  A.,  148  Fed.  169; 
modifying  and  affirming  136  Fed. 
089. 

12  Kent    v.    Honsinger,    167    Fed. 

619. 

13  German  Saw  &  Loan  Soc.  v. 
Tull.  C.  C.  A.,  136  Fed.  1. 

14  U.  S.  v.  Southern  Pae.  Ry.  Co., 
63  Fed.  481;  U.  S.  v.  American  Lum- 
ber Co.,  80  Fed.  309;  Evans  v. 
Charles  Scribner's  Sons,  58  Fed. 
303;  Duff  v.  First  Nat.  Bank.  13 
Fed.  65;  Dick  v.  Foraker,  155  U.  S. 
404,  39  L.  ed.  201;  Citizens'  Sav.  & 
Trust  Co.  v.  Illinois  Cent.  R.  Co., 
205  U.  S.  46,  51  L.  ed.  703;  Miller 
v.  Ahrens,  150  Fed.  044;  Evans  v. 
Charles  Scribner's  Sons,  58  Fed. 
303.  See  Canton  Roll  &  Machine 
Co.  v.  Rolling  Mill  Co.  of  America, 
155  Fed.  321;  Gage  v.  Riverside 
Trust  Co.,  156  Fed.  1002;  Schultz 
v.  Diehl,  217  U.  S.  594,  54  L.  ed. 
896;  Jellenik  v.  Huron  Copper  Min- 
ing Co.,  177  U.  S.  1,  44  L.  ed.  647; 
State  Nat.  Bank  v.  Syndicate  Co., 
178  Fed.  359;  Howard  v.  Nat.  Tele- 
phone Co.,  182  Fed.  215;  Sohege  v. 
singer  Mfg.  Co..  Ch.  N.  J..  Nov. 
1907.     As  to  the  validity  of  statutes 


authorizing  similar  methods  of  serv- 
ice in  the  State  courts,  see  Hart  v. 
Sanson,  1 10  U.  S.  151,  28  L.  ed.  101 ; 
Arndt  v.  Griggs,  134  U.  S.  316,  33 
L.  ed.  918;  Roller  v.  Holly,  176  U. 
S.  398,  44  L.  ed.  520. 

15  U.  S.  v.  Southern  Pac.  Ry.  Co., 
63  Fed.  481;  U.  S.  v.  American 
Lumber  Co.,  80  Fed.  309. 

16  Dick  v.  Foraker,  155  U.  S.  404, 
39  L.  ed.  201 ;  Citizens'  Sav.  &  Trust 
Co.  v.  Illinois  Cent.  R.  Co.,  205  U. 
S.  46,  5*1  L.  ed.  703;  Miller  v. 
Ahrens,  150  Fed.  644;  Evans  v. 
Charles  Scribner's  Sons,  58  Fed. 
303.  See  Canton  Roll  &  Machine 
Co.  v.  Rolling  Mill  Co.  of  America, 
155  Fed.  321;  Gage  v.  Riverside 
Trust  Co.,  156  Fed.  1002. 

17  Schultz  v.  Diehl,  217  U.  S.  594, 
54  L.  ed.  896. 

18  Howard  v.  Nat.  Telephone  Co., 
182  Fed.  215. 

19  State  Nat.  Bank  v.  Syndicate 
Co.,  178  Fed.  359. 

20  Jellenik  v.  Huron  Copper  Min- 
ing Co.,  177  U.  S.  1,  44  L.  ed.  647; 
Sohege  v.  Singer  Mfg.  Co.,  Ch.  N. 
J.,  Nov.  1907.  See  Merritt  v.  Am. 
Steel  Barge  Co.,  79  Fed.  228;  Ryan 
v.  Seaboard  R.  Co.,  83  Fed.  889. 
Contra.  Kilgour  v.  N.  O.  G.  L.  Co., 
•J  Woods,   144. 


166] 


STATUTORY    SERVICE. 


i95 


were  held  by  non-residents  outside  of  the  jurisdiction  ;  hut  not 
"where  the  corporation  is  domiciled  without  the  district  even  it 
has  been  held,  if  it  appears  therein,  when  the  stock  is  held  by  a 
non-resident  defendant ; 21  nor,  it  has  been  held,  in  a  suit  by  a 
subscriber  to  a  syndicate,  to  enforce  his  right  to  stock,  in  which 
the  managers  had  invested  the  syndicate  funds.22  An  absent 
judgment  debtor  may  thus  be  served  in  a  suit  by  the  creditor  to 
appropriate  his  assets  ; 23  but  the  statute  does  not  authorize  a  sim- 
ple contract  creditor  to  maintain  a  creditor's  bill,  to  set  aside  a 
fraudulent  conveyance  of  property.24  Process  may  thus  be  served 
in  a  suit  by  a  receiver  to  adjust  equities  between  himself  and 
non-resident  defendants,  when  a  resident  defendant  has  ob- 
tained for  his  own  benefit,  as  well  as  theirs,  a  judgment  within 
the  jurisdiction,  which  he  is  seeking  to  enforce  against  the  fund 
in  the  receiver's  hands.25  In  a  suit  by  the  creditors  of  a  corpo- 
ration to  set  aside  a  conveyance  of  its  land  and  a  mortgage  of 
its  personalty,  and  also  to  obtain  a  dissolution  of  the  corpo- 
ration and  a  receiver.26  In  a  suit  by  a  bondholder,  to  restrain 
the  trustee  of  his  mortgage  from  paying  to  the  mortgagor,  in 
fraud  of  his  rights,  the  proceeds  of  the  sale  of  land,  which,  by 
the  terms  of  the  mortgage,  should  be  used  as  a  sinking  fund 
for  the  redemption  of  the  bonds.27  And  so  in  a  suit  to  compel 
specific  performance  of  a  contract  to  sell  real  estate  in  a  State 
•whose  laws  make  a  decree,  where  the  defendant  does  not  ap- 
pear, as  effectual  as  a  conveyance  by  him ; 28  but  where  there 
was  no  such  statute  it  was  held  that  process  could  not  thus  be 
served.29  ]STor,  it  has  been  held,  where  the  relief  sought  re- 
quires the  performance,  by  the  non-resident  defendant,  of  a 
personal  act,  such  as  the  acceptance  of  a  building  and  payment 


21  McKane  v.  Burke,  132  Fed.  f>S8. 

22  Jones  v.  Gould,  C.  C.  A.,  149 
Fed.  153;  affirming  141  Fed.  G98. 

23  Brigham  v.  Luddington,  12 
Blatchf.  237.  Compare  Picquet  v. 
Swan,  5  Mason,  35;  s.  c,  5  Mason, 
501. 

24  Canton  Roll  &  Machine  Co.  v. 
Boiling  Mill  Co..  155  Fed.  321. 

25  Brown  v.  Pegram,  143  Fed.  701. 
26Mcllen   v.   Moline   Iron    Works, 

331  U.  S.  352,  33  L.  ed.  178;.  Single 


v.  Scott  Paper  Mfg.  Co.,  55  Fed.  553, 
557. 

27  Pollitz  v.  Farmers'  Loan  & 
Trust  Co..  39  Fed.  707. 

28  Morrison  v.  Marker,  93  Fed. 
692. 

29  Municipal  Inv.  Co.  v.  Gardiner, 
(12  Fed.  954;  Nelson  v.  Husted,  182 
Fed.  921.  See  Spurr  v.  Scoville,  3 
Gushing  (Mass.)  578.  But  see 
Sohege  v.  Singer  Mfg.  Co.,  Ch.  N.  J., 
Nov.  1907. 


.v.m; 


SUBPCENA    TO    ANSWER. 


[§  166 


for  the  same,  which  cannot,  like  the  execution  of  a  deed,  be 
performed  on  his  behalf  by  a  master.30  It  has  been  suggested 
that  a  lien  on  partnership  assets  may  be  thus  enforced.31  The 
phrase,  "claim  to  *  *  *  property,"  is  used  in  the  statute 
in  contrast  to  liens  or  encumbrances  upon  the  property,  and 
relates  onlv  to  claims  in  the  nature  of  an  assertion  of  owner- 
ship  or  proprietory  interest,  or  other  direct  right  or  claim  to 
the  property  itself.32     The  statute  does  not  apply  to  all  suits 


30  York  County  Sav.  Bank  v.  Ab- 
bot, 139  Fed.  988.  See  §  64,  supra, 
§  441,  infra. 

31  Jackson  v.  Hooper,  171  Fed. 
597. 

32  Ladew  v.  Tennessee  Copper  Co., 
17!)  Fed.  245,  251,  per  Sanford,  J.: 
'"There  appears  to  be  no  direct  ad- 
judication upon  the  question  wheth- 
er a  claim  of  this  character  may  be 
properly  considered  a  claim  to  prop- 
erty within  the  meaning  of  the  stat- 
ute. The  statement  in  Shainwald 
v.  Lewis  (D.  C.)  5  Fed.  310,  317, 
that  by  the  words  'legal  or  equita- 
ble lien  or  claim  against  real  or 
personal  property'  Congress  'in- 
tended to  reach  every  case  in  which 
there  should  be  any  sort  of  charge 
upon  a  specific  piece  of  property, 
capable  of  being  enforced  by  a  court 
of  equity'  which  is  cited  in  ]  Rose's 
Code,  Fed.  Pro.  §  856,  note  C,  as 
authority  for  a  similar  statement, 
was  purely  obiter;  the  only  point 
involved  in  the  case  being  that  Rev. 
St.  §  738,  in  which  these  words  orig- 
inally occurred,  did  not  apply  to  a 
suit  in  which  the  plaintiff  sought  to 
subject  the  general  property  of  the 
defendant  to  the  payment  of  its 
debts,  but  only  to  suits  to  enforce 
some  pre-existing  lien  or  claim  upon 
a  specific  piece  of  property.  Neither 
is  the  question  controlled  by  the 
definition  of  the  word  'claim'  given 
by  Mr.  Justice  Story  in  Prigg  v. 
Pennsylvania,   16   Pet.    536,   615,   10 


L.  ed.  1060,  as  'a  demand  of  some 
matter  as  of  right,  made  by  one  per- 
son upon  another,  to  do  or  forbear 
to  do  some  act  or  thing  as  a  matter 
of  duty,'  this  definition  being  given 
in  a  case  involving  the  construction 
of  a  statute  providing  that  slaves 
should  be  delivered  up  'on  claim  of 
the  party'  to  whom  their  service 
was  due;  the  meaning  of  the  word 
'claim'  as  used  in  a  statute  of  this 
character  in  reference  to  the  'claim 
of  one  person  upon  another  to  do  a 
certain  thing,  being  manifestly  dif- 
ferent from  its  meaning  as  used  in 
the  act  of  1875  in  reference  to  the 
claim  of  one  person  'to'  the  prop- 
erty of  another.  Evidently  its 
meaning  as  used  in  the  act  of  1875 
in  the  phrase  a  'claim  to 
property'  is  much  more  nearly  ex- 
pressed by  the  next  definition  cited 
by  Mr.  Justice  Story  in  this  same 
opinion,  as  given  by  Lord  Dyer  in 
Stowel  v.  Zouch,  1  Plowd.  359,  that: 
'A  claim  is  a  challenge  by  a  man 
of  the  propriety  or  ownership  of  a 
thing,  which  he  has  not  in  posses- 
sion, but  which  is  wrongfully  de- 
tained from  him.'  On  the  whole, 
I  am  of  the  opinion  that  as  it 
appears  from  the  concluding  por- 
tion of  this  section  that  it  relates 
entirely  to  suits  of  which  prop- 
erty is  the  'subject,'  and  as  the 
words   'claim  to  property' 

are    evidently    used    in    contrast    to 
liens    or    encumbrances    upon    prop- 


§  166]  STATUTORY  SERVICE.  597 

of  a  local  nature,33  nor  to  a  suit  in  equity  to  enjoin  a  nuisance.34 
ISTor  to  a  suit  to  set  aside  a  transfer  of  insurance  policies, 
issued  by  a  foreign  insurance  company  and  not  within  the  dis- 
trict although  secured  by  bonds  within  the  district,35  nor  to  a 
suit  to  collect  an  insurance  policy,  issued  by  a  domestic  cor- 
poration, when  a  necessary  party,  is  a  non-resident.36  Xor  to 
a  suit  by  heirs  against  testamentary  trustees,  to  recover  a 
balance  in  the  hands  of  the  defendants.37  JSTor  to  a  suit  upon  a 
bond,  given  to  release  an  attachment  by  a  State  court.38  Nor 
to  a  suit  to  establish  and  enforce  a  right  of  membership  in  the 
Associated  Press,  in  a  district  where  the  latter  corporation 
is  not  domiciled ;  although  the  right  is  to  be  exercised  in  such 
district.39  Nor  to  a  suit  to  cancel  a  promissory  note.40  It  has 
been  held  that  a  subpoena  cannot  thus  be  served  when  the 
main  object  of  the  bill  is  for  an  accounting  by  an  absent  and 
non-resident  defendant,  although  there  is  also  a  prayer  for  the 
appointment  of  a  receiver  of  property  within  the  district;41 
but  it  seems  that  service  can  thus  be  made  in  a  suit  to  estab- 
lish a  trust  in  real  estate  although  the  bill  also  prays  an  account- 
ing.42 Process  cannot  thus  be  served  in  a  suit  to  remove  a 
cloud  upon  the  title  to  a  patent-right  although  the  official  letters- 
patent  evidencing  the  patent-right  are  within  the  jurisdiction.43 
The  property  affected  must  be  actually,  and  not  merely  con- 
structively, within  the  district.44     The  court  within  the  dis- 

erty  and  are  the  only  words  in  the  37  Fayerweather  v.  Ritch,  S9  Fed. 

section  under  which  a  claim  to  the  385. 

direct  ownership  of  property  may  be  38  Filer  &  Stowell  Co.  v.  Rainey, 

included,  these  words  relate  only  to  220  Fed.  718. 

claims  made  to  the  property  in  the  39  Lawrence     v.     Times     Printing 

nature  of  an  assertion  of  ownership  Co.,  90  Fed.  24. 

or  proprietary  interest,  or  other  di-  40  Manning    v.    Berdan,    132    Fed. 

rect  right  or  claim  to  the  property  382. 

itself,"    affirmed    Ladew    v.    Tennes-  «  Ellis  v.  Reynolds,  35  Fed.  394. 

see  Copper   Co.,   218   U.   S.   357,   54  But  see  Porter  Land  &  Water  Co. 

L.  ed.  1069.  v.  Baskin,  43  Fed.  323. 

33  Ladew  v.  Tennessee  Copper  Co.,  42  Porter    Land    &    Water    Co.    v. 
218  U.  S.   357,   54  L.  ed.  1069;   af-  Baskin,  43  Fed.  323. 

firming  179  Fed.  245.  43  Xon-Magnetic  Watch  Co.  v.  As- 

34  Ibid.  sociation  H.  S.  of  Geneva,  44  Fed.  6. 

35  Evans     v.     Charles     Scribner's  44  Chase  v.  Wetzlar,  225  U.  S.  79, 
Sons,  58  Fed.  303.               "  56  L.  ed.  990. 

36  Stockbridge     v.     Phoenix     Mut. 
Life  Ins.  Co.,  193  Fed.  558. 


598 


SUBPfEXA    TO    ANSWER. 


[§    166 


trict  where  a  will  was  probated  cannot,  thus  acquire  jurisdic- 
tion of  a  suit  against  an  absent  executor,  who  has  removed  the 
funds  from  the  State;45  but  after  the  jurisdiction  of  the  Fed- 
eral court  has  attached,  it  seems  that  it  cannot  be  defeated  by  an 
order  of  the  State  court  directing  such  a  removal.46  The  exist- 
ence of  property  within  the  district  should  be  stated  positively 
and  not  by  inference.47 

It  has  been  held  at  Circuit:  that  an  order  in  pursuance  of 
this  statute  may  be  obtained  immediately  on  filing  the  bill, 
upon  proof  by  affidavit  that  the  defendant  does  not  dwell  with- 
in the  district,  and  cannot  be  served  or  found  therein  ;48  that 
there  is  need  in  such  case  of  a  previous  attempt  to  serve  a  sub- 
poena within  the  district;  49  that  the  day  named  for  his  appear- 
ance need  not  be  one  of  the  rule-days  of  the  court ; 50  that  person- 
al service  of  the  order  must  be  made  in  all  cases  where  the  resi- 
dence of  the  absent  defendant  is  known  or  can  be  ascertained, 
or  service  upon  him  can  be  made  within  a  reasonable  time  and 
by  the  exercise  of  reasonable  diligence ;  that  its  service  by 
publication  can  only  be  authorized  upon  proof  by  affidavit  of 
the  facts  showing  that  personal  service  without  the.  jurisdiction 
is  impracticable ; 51  that  the  order  itself  must  be  served ;  and 


45  Ibid. 

46Ingersoll  v.  Coram,  211  U.  S. 
335,  359,  53  L.  ed.  208,  225 ;  revers- 
ing on  another  point  C.  C.  A.,  148 
Fed.  160:  modifying  and  affirming 
136  Fed.  689. 

47  Jackson  v.  Hooper,  17]  Fed. 
597.  598. 

48  Forsyth  v.  Pierson.  9  Fed.  801; 
U.  S.  v.  American  Lumber  Co.,  80 
Fed.  309.  But  see  Bronson  v.  Keo- 
kuk. 2  Dill.  498. 

49  Ibid. 

50  Forsyth  v.  Pierson,  9  Fed.  801. 

51  Bronson  v.  Keokuk.  2  Dill.  498; 
Batt  v.  Proctor.  45  Fed.  515.  Cf. 
Marx  v.  Egner,  180  U.  S.  314.  45 
L.  ed.  547 ;  Hicks  v.  Crawford  Coal 
k  Iron  Co.,  190  Fed.  334.  In  Jacob 
v.  Roberts,  223  U.  S.  26],  264,  265, 
56  L.  ed.  429,  431,  the  following 
affidavit  in  proceedings  in  the  State       ty-five  years,  that  he  think?  tl>p  de- 


court  which  were  attacked  collater- 
ally, when  it  had  been  supported  by 
a  sheriff's  return  that  the  defendant 
was  not  found  within  the  district, 
was  held  to  be  sufficient:  "That 
the  cause  of  action  is  fully  set  forth 
in  his  verified  complaint  on  file  here- 
in:  that  said  defendants,  or  either 
or  any  of  them,  after  due  diligence, 
cannot  be  found  within  this  State, 
and  this  affiant,  in  support  thereof, 
states  the  following  facts  and  cir- 
cumstances: That  affiant,  for  the 
purpose  of  finding  said  defendants 
and  ascertain  their  place  of  resi- 
dence, has  made  due  and  diligent 
inquiry  of  the  old  residents  of  t he 
City  of  San  Diego,  the  former  neigh- 
bors of  said  defendants,  and  is  in- 
formed by  D.  Choate.  who  has  lived 
in  the  Citv  of  San  Dietro  over  twen- 


§  166] 


STATUTORY    SERVICE. 


59!) 


that  the  requirements  of  the  statute  are  not  met  by  service  of 
a  subpoena  by  the  marshal  of  the  other  district,  in  accordance 
with  an  order  so  directing,  made  by  the  court  where  the  suit 


fendants  are  not  within  the  State 
of  California,  and  he  does  not  know 
of  their  residence  and  has  not  heard 
anything  of  them,  or  either  of  them 
or  of  their  residence  or  post-office 
address,  for  more  than  twenty  years, 
and  this  affiant  is  informed  by 
George  W.  Hazzard,  who  has  lived 
in  San  Diego  for  over  twenty-five 
years,  that  he  has  no  knowledge  as 
to  the  whereabouts  of  the  said  de- 
fendants, or  either  of  them.  Plain- 
tiff also  made  inquiry  of  Ed.  Dough- 
erty, who  is  an  old  resident  of  San 
Diego,  and  said  Ed.  Dougherty  in- 
formed plaintiff  that  he  did  not 
know  the  address  or  residence  or 
where  the  defendants,  or  either  of 
them,  could  be  found,  and  did  not 
believe  that  they  were  in  the 
State."  'The  affidavit  also  stated 
that  inquiry  was  made  of  certain 
county,  and  city  officers  and  that 
they  all — 'stated  to  affiant  that  they 
did  not  know  the  residence  of  the 
defendants,  or  either  of  them,  their 
post-office  address  or  where  they 
could  be  found ;  and  none  of  the 
above-named  parties  had  heard  of 
the  post-office  address  or  residence 
of  the  defendants,  or  either  of  them, 
since  they  have  resided  in  the  said 
city  of  San  Diego.  The  affiant  has 
made  other  diligent  inquiry  to  find 
said  defendants,  or  either  or  any 
of  them,  and  has  not  been  able  to 
find  them  or  any  of  them  within — . 
The  affiant  has  no  knowledge  of  the 
residence  or  post-office  address  of 
the  defendants  or  either  of  them 
or  where  the  defendants,  or  either 
of  them,  could  be  found.  This  af- 
fiant, therefore,  says  that  personal 
service  of   said   summons  cannot  be 


made  on  the  defendants — -Thomas  E. 
Jacob,  Thomas  Hobson,  Edward 
Hobson,  Jacob  Hobson  and  Frank 
Hobson,  or  either  or  any  of  them.'  ' 
The  court  said  (267)  :  "We  have  set 
cut  the  affidavit.  It  shows  inquiry 
of  the  'whereabouts  of  plaintiffs  in 
error  of  their  former  neighbors  and 
other  residents  of  San  Diego.  One 
of  them  replied  that  he  had  not 
heard  of  them,  of  their  residence 
or  post-office  address,  for  over  twen- 
ty-five years.  Another  also  had  not 
heard  from  them  and  did  not  be- 
lieve they  were  in  the  State.  In- 
quiry was  also  made  of  nineteen 
county  officers  and  three  state  of- 
ficers, sheriffs,  county  clerks ;  tax 
collectors,  county  and  state;  asses- 
sors, county  and  state,  and  of  the 
postmasters  of  the  State.  Neigh- 
bors, residents  and  officers  who,  in 
the  intercourse  and  business  of  life- 
would  almost  necessarily  come  in 
contact  with  plaintiffs  in  error  or 
hear  from  them,  had  no  knowledge 
of  them.  It  may,  however,  be  said, 
and  indeed  is  said,  that  other  parts 
of  the  State  were  not  searched,  and 
that  this  was  necessary,  as  the 
process  of  the  court  could  run  to 
every  county  in  the  State.  The  re- 
quirement is  extreme  and  we  are 
cited  to  no  cases  in  which  it  is 
decided  to  be  necessary.  The  affi- 
davit shows  besides  that  defendant 
in  error  made  diligent  inquiry  to 
find  plaintiffs  in  error  and  had  no 
knowledge  of  their  residence  or  post- 
office  address  or  of  either  of  them 
or  where  they  or  either  of  them 
could  be  found.  We  think  plaintiffs 
in  error  were  afforded  due  process." 


600  SUBPC3XA  TO  ANSWER.  [§  166 

is  pending.52  The  affidavit  should  state  the  known  places  of 
residence  of  the  absent  defendants,  and  show  that  diligence  has 
been  used  to  ascertain  the  places  of  residence  which  are  un- 
known.53 The  fact  that  it  would  be  very  expensive  to  make 
personal  service  upon  the  absent  defendant  whose  residence 
was  known  was  held  no  ground  for  allowing  service  by  publi- 
cation.54 If  the  absent  defendant  reside  in  another  district  of 
the  United  States,  the  safer  practice  is  to  obtain  an  order 
directing  the  marshal  of  that  district  to  serve  him.55  A  mis- 
nomer of  a  defendant,  thus  served,  who  does  not  appear,  will 
invalidate  the  whole  proceedings.56  A  defect  in  personal  serv- 
ice, or  the  fact  that  personal  service  was  obtained  by  fraud, 
will  not  prejudice  proceedings  regularly  taken  under  this  stat- 
ute.57 This  statute  does  not  change  the  law  as  to  the  difference 
of  citizenship  essential  to  jurisdiction.58  It  has  been  doubted 
whether  it  can  be  applied  to  a  suit  removed  from  a  State  court.59 
Compliance  with  State  statutes  providing  for  service  upon  non- 
residents, by  publication60  or  by  attachment,61  will  not  give 
a  Federal  court  jurisdiction  either  in  law  or  equity.  An  order 
of  a  Federal  court  for  such  service  is,  when  attacked  collater- 
ally, at  least  prima  facie  evidence  of  the  existence  of  the  juris- 
dictional facts.62  Upon  a  motion  to  vacate  the  order  for  sub- 
stituted service,  the  sufficiency  of  the  bill  may  be  considered 
and  the  order  vacated,  where  the  bill  shows  no  cause  for  relief 
in  equity;  although  the  subject  matter  is  within  the  statute.63 
It  has  been  held :  that  the  order  for  service  may  be  set  aside 

52  Jennings  v.  Johnson,  C.  C.  A.,  58  Tug  River   Coal   &   Salt   Co.  v. 
148    Fed.    337;    Kent  v.   Honsinger,       Brigel,  67  Fed.  625. 

167  Fed.  619.  59  Adams    v.    Heckscher,    80    Fed. 

53  Batt   v.   Procter,   45    Fed.    515.       742,  744. 

An   affidavit   sworn   to  four  months  60  Bracken  v.  Union  Pac.  Ry.  Co., 

previously    was    held   to    be    insuffi-  C.  C.  A.,  75  Fed.  347;  s.  c,  56  Fed. 

cient.      Spreen     v.     Delsignore,     94  447. 

Fed.  71.  61  u.  S.  v.  Brooke,  184  Fed.  341. 

54  Batt  v.  Procter,  45  Fed.  515.  62  Woods    v.    Woodson,    C.    C.   A., 
55Bronson  v.  Keokuk,  2  Dill.  498;  100  Fed.  515. 

Forsyth  v.  Pierson,  9  Fed.  801.  63  Canton   Roll   &  Machine   Co.   v. 

66  Meyer  v.  Kuhn,  65  Fed.  705.  Rolling    Mill     Co.,  155    Fed.    321; 

57  Fitzgerald  &  M.  C.  Co.  v.  Fitz-  Gage    v.    Riverside  Trust    Co.,    156 

gerald,  137  U.  S.  98,  34  L.  ed.  608.  Fed.  1002. 


167]  EXEMPTIONS   FROM   SERVICE.  601 


Gi 


as  to  part  of  the  bill  and  left  in  "force  as  to  the  remainder. 
The  right  of  the  defendant  to  appear  and  defend  within  a 
year  is  absolute.65  It  is  not  lost  because  he  had  knowledge 
of  the  proceedings.66  The  court  cannot  impose  any  other  con- 
dition than  that  prescribed  by  the  statute,  namely,  the  payment 
of  costs.67  An  order  requiring  the  application  to  show  a  meri- 
torious defense  to  the  bill  is  erroneous.68  Where  the  defend- 
ants, who  have  been  served  by  publication,  appear  and  defend 
upon  the  merits,  the  suit  is  converted  from  a  proceeding  in  rem 
to  a  suit  in  personam.69 

The  Act  of  June  29,  1906,  which  authorizes  proceedings  to 
cancel  certificates  of  citizenship,  provides:  "If  the  holder  of 
such  certificate  be  absent  from  the  United  States  or  from  the 
district  in  which  he  last  had  his  residence,  such  notice  shall 
be  given  by  publication  in  the  manner  provided  for  service  of 
summons  by  publication  or  upon  absentees  by  the  laws  of  the 
State  or  the  place  where  such  suit  is  brought."  70. 

In  the  eastern  district  of  Louisiana,  it  was  held  to  be  suffi- 
cient to  serve  the  notice  upon  an  attorney-at-law,  appointed 
curator  ad  hoc  to  represent  an  absentee,  without  publication.71 
§  167.  Exemptions  from  service  of  subpoena  or  other 
process,  legal  or  equitable,  other  than  arrest.  Chief  Jus- 
tice Marshall,  in  the  course  of  the  trial  of  Aaron  Burr,  ordered 
that  a  subpoena  duces  tecum  should  issue  against  President 
Jefferson.  Jefferson,  however,  refused  to  obey  the  subpoena., 
while  expressing  his  perfect  willingness  to  furnish  the  paper 
desired,  if  requested  in  what  he  considered  a  proper  way.  The 
dispute  went  no  farther.1  Subsequently,  a  motion  was  made 
for  leave  to  file  a  bill  in  the  Supreme  Court,  praying  for  an 
injunction  against  President  Johnson  to  restrain  him  from 
executing  the  reconstruction  laws.  The  Attorney-General  then 
took  the  position  that  the  President  was  not  amenable  to 
process;  but  that  point  was  not  then  and  has  not  since  been 

64  Evans     v.     Charles  Scribner's       Fed.    99.      See   Ingersoll   v.    Coram, 
Sons,  58  Fed.  303.  ]36  Fed.  689,  692,  693;  affirmed  231 

65  Perez  v.   Fernandez,  220   U.   S.       U.  S.  335,  53  L.  ed.  208,  which  re- 
224,  55  L.  ed.  443.  versed  C.  C.  A.,  148  Fed.  169. 

66  Ihl'J-  ™  Ch.  3592,  §  15,  34  St.  at  L.  596, 
67T'>id.  601,   Comp.   St.   Supp.   1909,  p.   485. 
68  f')id.  71  u.  S.  v.  Ellis,  185  Fed.  546. 
69Beamer  v.  Werner,  C.  C.  A.,  159  §  107.     l  Burr's  Trial. 


602 


SUBIHEXA    TO    ANSWER. 


[§   ^7 


decided.2  On  the  trial  of  Guiteau  for  the  murder  of  President 
Garfield,  a  written  statement  signed  by  President  Arthur  was 
admitted  in  evidence  by  consent  without  his  personal  attend- 
ance.3 Xo  other  officer  or  person  has  been  claimed  to  be  above 
the  law.  The  Federal  Constitution  provides  that  Senators  and 
Eepresentatives  ' "shall  in  all  cases,  except  Treason,  Felony,  and 
Breach  of  the  Peace,  be  privileged  from  Arrest  during  their 
Attendance  at  the  Session  of  their  respective  Houses,  and  in 
aoinp-  to  and  returning  from  the  same."'  4  This  has  been  con- 
strued  at  Circuit  to  exempt  them  from  service  of  process,  un- 
accompanied by  arrest  of  the  person,  when  on  their  way  to 
attend  a  session  of  Congress ; 5  and  it  has  been  further  held 
that  such  exemption  is  not  lost  by  a  slight  deviation  from  the 
most  direct  road  to  the  capital.6  In  a  State  court  the  privilege 
has  been  extended  to  members  of  a  Constitutional  Convention.7 
In  certain  cases  individuals  are  temporarily  exempt  from  the 
service  of  process.    A  person  temporarily  and  voluntarily  with- 


2  Mississippi  v.  Johnson,  4  Wall. 
475,  18  L.  ed,  437.  See  Jefferson's 
Works,  vol.  v.  p.  102. 

SGuiteau's  Trial.  741.  896.  In 
Coler  v.  Brooklyn  Eagle.  New  York 
Supreme  Court  (Kings  County  I .  the 
plaintiff  requested  President  Roose- 
velt to  give  his  testimony.  The  fol- 
lowing answer  was  received:  "Hon. 
Bird  S.  Coler:  The  President  of  the 
United  States  does  not  testify  in 
court  nor  does  he  give  evidence  by 
deposition.  Wm.  Loeb.  Jr.,  Secre- 
tary." Plaintiff  then  applied  for  an 
order  to  show  cause  why  a  commis- 
sion should  not  issue.  His  applica- 
tion was  denied  by  Thomas.  J.,  as 
follows :  "The  order  to  show  cause 
is  denied  for  the  following  reasons: 
First,  the  papers  do  not  show  that 
the  evidence  sought  relates  to  the 
plaintiff.  This  is  technical.  Second, 
the  Executive  of  a  sovereign  nation 
may.  with  the  highest  right  and 
dignity,  decide  whether  he  will  lay 
aside  his  official  duties  to  become  a 


witness  in  the  court  of  another  ju- 
risdiction and  if  the  evidence  per- 
tain to  his  duties  as  a  Governor  of 
a  State  some  eight  years  earlier  his 
refusal  to  testify  would  be  doubly 
justified.  In  the  present  instance, 
through  his  secretary,  he  has  made 
a  statement  tantamount  to  such  re- 
fusal and  the  issuance  of  a  commis- 
sion would  be  a  useless  if  not  inde- 
corous act.  inasmuch  as  he  is  the 
Commander-in-Chief  of  the  army 
and  navy  of  the  United  States,  and 
in  effect  paramount  executive  au- 
thority in  the  District  of  Columbia, 
and  his  refusal  could  not  and  should 
not  be  gainsaid.  The  law  and  its 
history  may  be  found  in  the  appeal 
of  Hartranft  85  Penn.  433.  27  Amer- 
ican Reporter  607.  See  also  Rice  vs. 
Austin  19  miscellaneous  103."  (X. 
Y.  Sun.  February  10.  1909.) 

4  Const.,  art.  I.  §  0. 

5  Miner  v.  Markham.  28  Fed.  387. 

6  Miner  v.  Markham,  28  Fed.  387. 
'Bolton  v.  Martin,  1  Dallas,  296, 

1  L.  ed.  144. 


167] 


EXEMPTIONS   FKOM   SERVICE. 


603 


in  the  district  for  the  purpose  of  attending,  in  a  State8  or 
Federal9  court,  either  as  witness,10  party/1  attorney,  or  coun- 
sel,12 a  trial  or  other  proceeding,13  civil  or  criminal,14  includ- 
ing the  argument  of  a  demurrer,15  or  attendance  before  a 
referee  in  bankruptcy,16  is,  while  there,  exempt  from  tho 
service  of  process  eundo,  morando,  et  redeundo.  Service  upon 
a  foreign  corporation  by  delivering  the  process  to  its  secretary 
while  attending  court  as  a  witness  in  the  corporation's  liti- 


8  Juneau  Bank  v.  McSpedan,  5 
Biss.  64;  Matthews  v.  Tufts,  87  X. 
Y.  568. 

9  Parker  v.  Hotchkiss,  1  Wall.  Jr. 
269;  U.  S.  v.  Bridgman,  8  Am.  L. 
Rec.  541;  Brooks  v.  Farwell,  2  lie- 
Crary,  220;  s.  c,  4  Fed.  167; 
Bridges  v.  Sheldon,  7  Fed.  17 ;  Mat- 
thews v.  Puffer,  10  Fed.  606 ;  Larned 
v.  Griffin,  12  Fed.  590. 

10  Person  v.  Grier,  66  N.  Y.  124, 
23  Am.  P.ep.  35,  and  cases  there 
cited;  Kauffman  v.  Kennedy,  25 
Fed.  785.  A  non-resident  volunta- 
rily came  to  another  jurisdiction  to 
plead  to  an  indictment  against  him, 
under  which  he  might  have  been 
compulsorily  removed,  and  on  the 
same  day  was  served  with  a  sub- 
poena requiring  him  to  testify  be- 
fore a  Grand  Jury  on  a  specified 
date.  He  then  appeared  and  testi- 
fied and  was  directed,  without  serv- 
ice of  further  process,  to  reappear 
eight  days  later.  He  then  again  at- 
tended and  was  not  asked  to  testify 
further,  but  was  privately  interro- 
gated by  an  Assistant  District  At- 
torney, and  while  leaving  the  Fed- 
eral Building  was  served  with  a 
summons  in  a  civil  action  brought 
in  the  State  court.  After  removal 
of  the  case,  the  Federal  court  set 
aside  the  summons.  Dwelle  v.  Al- 
len. 193  Fed.  546.  The  Appellate 
Division  of  the  New  York  court 
held   subsequently    to    the    contrary. 


Dwelle  v.  Allen,  151  App.  Div.    (X. 
Y.)    717. 

"Parker  v.  Hotchkiss,  1  Wall. 
Jr.  269;  Juneau  Bank  v.  McSpedan, 
5  Biss.  64;  Matthews  v.  Tufts,  87 
N.  Y.  568;  Brooks  v.  Farwell,  2 
McCrary,  220;  s.  c,  4  Fed.  167; 
Bridges  v.  Sheldon,  7  Fed.  17 ;  Mat- 
thews v.  Puffer,  10  Fed.  600;  Larned 
v.  Griffin,  12  Fed.  590.  A  service 
of  process,  made  upon  a  party  at- 
tending especially  the  trial  of  a  case 
in  another  State,  was  set  aside  by  a 
Federal  court,  although  the  suit  was 
begun  in  a  court  of  the  State  whose 
courts  held  such  service  good.  Holt 
v.  Wharton,  C.  C.  A.,  73  Fed.  392. 
But  see  Skinner  &  Mounce  Co.  v. 
Waite,  155  Fed.  828. 

12  Matthews  v.  Tufts,  87  X.  Y. 
568. 

13  U.  S.  v.  Bridgman,  8  Am.  Law 
Record,  541  ;  Xewton  v.  Askew,  6 
Hare,  319;  Matthews  v.  Tufts,  87 
X.  Y.  568;  Parker  v.  Marco,  13(1 
X.  Y.  585,  20  L.R.A.  45,  32  Am.  St. 
Pep.  770.  But  see  Jaster  v.  Currie, 
198  U.  S.  144,  49  L.  ed.  988. 

14  U.  S.  v.  Bridgman,  8  Am.  L. 
Rec.  541.  But  see  Jenkins  v.  Smith, 
57  How.  Pr.   (X.  Y.)    171. 

15  Kims*  v.  Lant,  68  Fed.  436. 

16  Morrow  v.  U.  H.  Dudley  &  Co., 
144  Fed.  441;  Peet  v.  Fowler,  170 
Fed.  618;  U.  S.  v.  Zavelo,  177  Fed. 
536. 


604 


SUBP(EXA    TO    ANSWER. 


[§   16 


>r     » 


gation  is  invalid.17  A  similar  exemption  would  probably  be 
applied  to  any  person  while  temporarily  within  the  district  in 
the  discharge  of  a  public  duty.18  The  privilege  of  a  witness 
does  not  exempt  him  from  liability  to  service  in  a  suit  arising 
out  of  his  acts  upon  that  same  visit  to  the  jurisdiction.19  Xor 
where  the  witness  remains  within  the  jurisdiction  more  time 
than  is  reasonably  necessary  for  his  attendance  upon  the  case.20 
A  Federal  court  will  not  punish  as  a  contempt  the  arrest  or 
service  of  process  by  a  State  court  upon  a  foreign  witness  in 
attendance  before  it;21  though  it  might  perhaps  upon  habeas 
corpus  discharge  the  witness  from  such  arrest,22  or  punish  the 
party  who  molested  the  witness  by  a  stay  of  proceedings  in 
a  case  pending  between  him  and  the  witness  in  the  Federal 
court.23  In  a  recent  case,  a  party  to  a  suit  in  a  Circuit  Court 
of  the  United  States  was  granted  a  protective  writ  to  prevent, 
during  his  attendance  upon  the  trial,  his  arrest  as  a  lunatic 
under  a  previous  order  of  a  court  of  the  State,  when  subse- 
quently thereto  his  sanity  had  been  adjudicated  by  a  court  of 
another  State,  where  he  then  lived.24  If  a  person  be  fraudu- 
lently enticed  within  the  district  and  then  served  with  process 
by  those  who  thus  induced  him  to  come,  the  service  may  be  set 
aside.25  In  one  case,  when  a  man  was  induced  by  a  forged 
telegram  to  enter  the  jurisdiction  of  the  court,  the  party  who 
served  him  there  was  held  to  be  presumptively  connected  with 
the  fraud.26     The  service  of  a  notice  that  a  deposition  will  be 


17  American  Woodenware  Co.  v. 
Stem,  63  Fed.  676. 

18  Lyell  v.  Goodwin,  4  McLean, 
29;  Nichols  v.  Horton,  14  Fed.  327; 
4  McCrary,  560. 

19  Iron  Dyke  Copper  Min.  Co.  v. 
Iron  Dyke  R.  Co.,  132  Fed.  208. 

20  Finch  v.  Gallagher,  25  Abb.  X. 
C.  (N.  Y.)  404;  12  X.  Y.  Supp. 
487;  Marks  v.  La  Societe,  19  X.  Y. 
Supp.  470;  Woodruff  v.  Austin,  37 
X.  Y.  Supp.  22.  But  see*  Pope  v. 
Negus,  3  X.  Y.  Supp.  796. 

21  Ex  parte  Schulenburg,  25  Fed. 
211. 

22  Ex  parte  Hurst,  1  Wash.  C.  C. 


186.  See  Ex  parte  Schulenburg,  25 
Fed.  211,  212. 

23  Bridges  v.  Sheldon,  7  Fed.  17, 
42;  Ex  parte  Schulenburg,  25  Fed. 
211,  212. 

24Chanler  v.  Sherman,  C.  C.  A., 
22  L.R.A.(X.S.)   992,  162  Fed.  19. 

25  Union  Sugar  Refinery  v.  Ma- 
thiesson,  2  Cliff.  304:  Steiger  v. 
Boon,  4  Fed.  17;  Blair  v.  Turtle, 
5  Fed.  394;  s.  c,  23  Alb.  L.  J.  435; 
Baker  v.  Wales,  15  Abb.  Pr.  X.  S. 
(X.  Y.)  331;  Fitzgerald  &  M.  C. 
Co.  v.  Fitzgerald,  137  U.  S.  98,  105, 
34  L.  ed.  608,  611. 

26  Steiger  v.  Bonn,  4  Fed.  17. 


1G7] 


EXEMPTIONS   FROM   SERVICE. 


G05 


taken  in  another  city,  when  snch  deposition  is  subsequently 
taken  in  pursuance  thereof,  cannot  be  considered  a  fraudulent 
device  to  entice  the  party  within  the  jurisdiction.27  It  lias  been 
held  that  a  party  to  a  suit  in  a  State  court  is  not  on  his  journey 
there  exempt  from  service  of  process  in  another  State.28  The 
privilege  must  be  claimed  promptly,  or  otherwise  will  be 
waived.89  It  was  waived  by  a  delay  of  nearly  four  mouths  and 
a  half,  during;  which  plaintiff  had  entered  judgment  by  de- 
fault;30 but  a  delay  of  three  weeks  was  held  not  to  operate  as 


32 


a  waiver.  A  voluntary  appearance  waives  the  objection; 
but,  it  has  been  held,  that  the  objection  may  be  raised  by  a 
plea  in  abatement;33  even  when  united  with  a  defense  upon 
the  merits.34  It  has  been  held :  that  the  execution  of  a  bail 
bond  is  not  a  waiver.35  A  judgment  is  not  void  so  that  it 
can  be  attacked  collaterally,  where  process  was  served  upon  a 
party  while  attending  a  trial.36 


27  Jaster  v.  Currie,  198  U.  S.  144, 
49  L.  ed.  988. 

28Holyoke  &  S.  H.  F.  I.  Co.  v. 
Ambden,  21  L.R.A.  319,  55  Fed.  593. 

29  Matthews  v.  Puffer,  10  Fed. 
606,  20  Blatchf.  233;  Watson  Town 
Nat.  Bank  v.  Messenger,  6  Pa.  Co. 
Ct.  609. 

30  Sebring  v.  Streyker,  10  Misc. 
(X.  Y.)  289,  30  N.  Y.  Supp.  1053. 

31  Morrow  v.  U.  H.  Dudley  &  Co., 
144  Fed.  441. 

32  Anonymous,  9  X.  J.  L.  J.  166. 
But  see  Lamed  v.  Griffin,  12  Fed. 
590;  Stewart  v.  Howard,  15  Bar- 
bour  (N.  Y.)   26;  infra,  §  170. 


33Larned  v.  Griffin,  12  Feck  590. 

3*Larned  v.  Griffin,  12  Fed.  590; 
Christian  v.  Williams,  35  Mo.  App. 
297;  O'Loughlin  v.  Bird,  128  Mass. 
600. 

35Larned  v.  Griffin,  12  Fed.  590; 
Washburn  v.  Phelps,  24  Yt.  506; 
U.  S.  v.  Edme,  9  S.  &  E.   (Pa.)   147. 

36  Jaster  v.  Currie,  198  U.  S.  144, 
49  L.  ed.  988;  Walker  v.  Collins,  59 
Fed.  70.  A  number  of  authorities 
are  collected  in  an  article  by  Mr. 
Alexander  H.  Bobbins,  65  Cent.  L. 
J.  105. 


CHAPTER  VII. 


APPEARANCE. 


§  168.  Definition  of  an  appearance.  An  appearance  is 
the  process  by  which  a  defendant  submits  himself  to  the  juris- 
diction of  the  court.  An  appearance  is  either  general  or  special. 
By  a  general  appearance  a  defendant  appears  for  all  purposes 
in  the  suit.  By  a  special  appearance  he  appears  solely  for  the 
purpose  of  objecting  to  the  jurisdiction  on  account  of  a  defect, 
omission,  or  irregularity  in  the  service  of  the  subpoena  upon 
him,  or  perhaps  for  some  other  jurisdictional  defect.1  An  ap- 
pearance gratis  is  an  appearance  by  a  defendant  who  has  not 
been  served  with  process.2  Under  the  former  practice,  a  formal 
appearance  was  required.3  The  Equity  Rules  of  1912  make  no 
provision  for  an  appearance  other  than  such  as  is  implied  by 
the  law  from  the  filing  of  an  answer. 

§  169.  What  constitutes  an  appearance.  The  formal 
method  of  entering  an  appearance  is  to  deliver  to  the  clerk 
a  praecipe,  that  is,  a  written  direction,  ordering  him  to  enter 
the  appearance  of  the  defendant  who  subscribes  it.1  A  defend- 
ant may  appear  in  person  2  or  by  his  attorney.  Xo  attorney- 
at-law  can  appear  in  a  court  of  the  United  States  unless  author- 
ized by  a  power  of  attorney,  if  he  is  not  a  member  of  the  bar 
of  such  court.3  The  rules  as  to  admission  to  the  bar  of  the 
District  and  Circuit  Courts  vary  with  the  different  courts.     It 

§   108.     i  National  F.   Co.   v.   Mo-  SU.  S.  R.  S.,  §  747.     • 

line    Malleable    I.    Works,    18    Fed.  3  Ex   parte   N.    K.    Fair  bank    Co., 

863;    Elliott    v.    Lawliead,    4.*?    Ohio  194    Fed.    978;     Matter    of    Joseph 

:St.  171;  Dorr  v.  Gibboney,  3  Hughes,  Wood,  S.  D.  N.  Y.,  explained  infra. 

382 ;  U.  S.  v.  Am.  B.  T.  Co.,  29  Fed.  sections    on    "Habeas    Corpus."      It 

17.  lias  been  hrld  that  the  court  may  ad- 

2  Daniell's  Ch.   Pr.    (2d   Am.   ed.)  mit  an  attorney  to  practice  nunc  pro 
590-595.  tunc  so  as  to  validate  a  writ  in  the 

3  Eq.  Rule  17  of  1841.  Federal    court    which    he    had    pre- 
§   169.     1  Daniell's     Ch.    Pr.     (2d       viously    obtained.      Jewett    v.    Gar- 

Am.  ed.)   590.  591.  rett,  47  Fed.  625. 

600 


169] 


WHAT    IS    AX    APPEARANCE. 


607 


is  the  usual  practice  to  recognize  in  each  District  and  Circuit 
Court  a  member  of  the  bar  of  the  Supreme  Court  of  the  United 
States  as  a  member  of  the  bar  of  such  inferior  court  without 
requiring  any  formal  order  or  motion  for  his  admission.4  The 
Circuit  Court  of  the  United  States  for  the  Southern  District 
of  Xew  York5  and  the  district  of  Xew  Jersey  have,  in  one 
or  more  cases  refused  to  recognize  members  of  the  bar  of  the 
Supreme  Court  of  the  United  States  who  had  not  been  admitted 
to  practice  there.  The  taking  of  any  proceeding,6  other  than 
a  special  appearance  and  a  motion  or  plea  founded  thereupon, 
is  equivalent  to  a  general  appearance  and  a  submission  of  the 
pdefendant's  person  to  the  jurisdiction  of  the  court.7  Such 
are :  the  obtaining  of  an  order  extending  the  time  "to  plead, 
answer,  or  take  such  action  as  he  may  be  advised,"  8  unless  the 
application  is  for  an  order  extending  the  time  to  appear,  for 
the  purpose  of  pleading  to  the  jurisdiction,  or  otherwise;9 
a  petition  of  intervention,  even  where  the  petitioner  disclaims 
any  intention  to  be  made  a  party ; 10  a  special  appearance,  ac- 


4  See   Goodyear   D.   V.   Co.   v.   Os- 
good, 13  Off.  Gaz.  325. 

5  See  Matter  of  Joseph  Wood,  in- 
fra, §§  466,.  467. 

6  Jones  v.  Andrews,  10  Wall.  327, 
19  L.  ed.  935;  Tliornburgh  v.  Savage 
M.  Co.,  1  Pac.  Law  Mag.  267:  Liv- 
ingston v.  Gibbons.  4  J.  Ch.  (X.  Y. ) 
!>4.  99.  It  has  been  held  in  Xew 
York:  that  service  of  a  notice  of  a 
motion  to  set  aside  an  attachment, 
\Yood  v.  Furtick,  17  Misc.  (N.  Y.) 
561,  and  to  make  a  complaint  more 
definite  and  certain,  Valentine  v. 
Myers.  36  Hun  I  X.  Y.)  201,  and  the 
obtaining  of  stipulations  extending 
the  time  to  answer  by  an  attorney, 
who  signs  one  of  them  as  attorney 
for  the  defendant,  Paine  Lumber  Co. 
v.  Galbraith.  38  App.  Div.  (X.  Y.) 
68:  Bell  v.  Good.  22  Civ.  Proc.  Rep. 
(N.  V.i  356,  46  X.  V.  St.  Pep.  572; 
Renedict  v.  Arnoux,  38  N.  V.  Supp. 
882,  do  not  operate  as  a  genera] 
appearance. 

7  Xew  Jersey  v.  Xew  York,  6  Pet. 


323:  Van  Antwerp  v.  Hulburd,  7 
Blatehf.  426,  440;  Livingston  v. 
Gibbons,  4  J.  Ch.  (X.  Y.),  94; 
Blackburn  v.  Selma,  M.  &  M.  P.  Co., 
2  Flippin,  525;  Fitzgerald  &  M. 
Const.  Co.  v.  Fitzgerald,  137  U.  S. 
98.  34  L.  ed.  608;' infra,  §  170. 

8  Hupfdd  v.  Automaton  Piano 
Co.,  66  Fed.  788;  Kneeland  v. 
Austin,  2  Law  Bull.  (X.  Y.)  56; 
Krause  v.  Averill,  66  How.  Pr.. 
(X.   Y.)    97:    Briggs   v.   Stroud,   58 

Fed.  717:  Midland  Contracting  Co. 
v.  Toledo  Foundry  &  Machine  Co., 
C.  C.  A..  154  Fed.  797.  Tn  Mur- 
phy v.  Herring-Hall-Marvin  Safe 
Co.,  184  Fed.  495.  498.  it  was 
so  held  when  the  defendants  pro- 
,  cured  the  order  ex  parte  at  cham- 
bers and  did  not  serve  the  same, 
nor  file  it.  until  long  after  the  re- 
moval of  the  case,  when  they  pro- 
cured a  certified  copy  of  the  record. 

9  Waters  v.  Central  Trust  Co. 
(2d  Ct.),  ('.  C.  A..  126  Fed.  469. 

lOBowdoin   College  v.  Merritt,  5*> 


60S 


APPEAKANCE. 


[§  109 


companied  by  an  answer  to  the  mirits,11  at  least  when  such 
answer  does  not  formally  object  to  the  jurisdiction;12  it  has 
been  held,  a  special  appearance  accompanied  by  a  motion  to 
set  aside  an  order  reviewing  a  judgment  upon  the  ground  of 
an  irregularity  in  the  proceedings;13  obtaining  a  stay  of  pro- 
ceedings pending  a  motion  to  vacate  judgment;14  the  filing 
of  a  pleading  before  the  court  has  passed  upon  the  question  of 
jurisdiction,15  even  when  filed  pending  the  decision  of  a  motion 
to  set  aside  the  service  of  process,16  at  least  when  such  pleading 
does  not  specifically  take  that  objection,17  and  a  motion  to  set 
aside  the  service  because  of  want  of  jurisdiction  over  both  the 
person  and  the  subject-matter.18  Where  the  deefndant,  appear- 
ing specially  for  that  purpose,  moved  to  quash  a  return  of  serv- 
ice of  a  summons  and  prayed  judgment  whether  it  should  be 
compelled  to  plead  on  the  ground  that  it  was  a  non-resident 
corporation,  it  was  held  that  the  appearance  was  not  therebv 
made  general.19  It  was  so  held  of  a  motion  to  quash  service 
upon  a  party  in  another  district  on  the  ground  that  "it  appears 
from  the  face  of  the  bill  of  complaint  that  the  relief  sought  is 
of  such  nature  that  he  cannot  lawfully  be  called  upon  to  defend 


Fed.  6;  Jack  v.  D.  M.  &  Ft.  D.  R. 
Co.,  49  Iowa,  027;  Frank  v.  Wed- 
derin,  C.  C.  A.,  68  Fed.  818. 

H  Caskey  v.  Chenoweth,  C.  C.  A., 
62  Fed.  712.  See  Texas  &  Pac.  Ry. 
Co.  v.  Saunders,  151  U.  S.  105,  38 
L.  ed.  90 ;  Hankinson  v.  Page,  31 
Fed.  184. 

12  Wood  v.  Wilbert,  226  U.  S.  384, 
57  L.  ed.  — . 

13  Crawford  v.  Foster,  84  Fed. 
939. 

14  Crane  v.  Penny,  2  Fed.  187. 

15  Texas  &  Pac.  Ry.  Co.  v.  Cox, 
145  U.  S.  593,  36  L.  ed.  829. 

16  Barnes  v.  W.  U.  Tel.  Co.,  120 
Fed.  550.  Cf.  Wetzel  &  T.  Ry.  Co. 
v.  Tennis  Bros.  Co.,  C.  C.  A.,  145 
Fed.  458. 

17  See  Eq.  Rule  79 ;  Wood  v.  Wil- 
bert, 226  U.  S.  384,  57  L.  ed.  — . 


18  Mahr  v.  Union  Pac.  R.  Co.,  140 
Fed.  921. 

19  X.  K.  Fairbanks  &  Co.  v.  Cin- 
cinnati, N.  O.  &  T.  P.  Ry.  Co.,  C. 
C.  A.,  54  Fed.  420;  Am.  Cereal  Co. 
v.  Eli  Petti  John  C.  Co.,  70  Fed.  276. 
It  is  said  in  the  Encyclopedia  of 
Pleading  and  Practice,  article  II, 
section  626,  that  ''where  a  party  ap- 
pears in  court  and  objects  to  the 
jurisdiction  of  the  court  over  his 
person,  he  must  state  specifically 
the  grounds  of  objection;  by  not  so 
stating  them  his  appearance  will  be 
construed  a  general  one,  although 
he  moves  to  dismiss  on  that  ground." 
Citing  Bell  Bros.  v.  White  Lake 
Lumber  Co.,  21  Neb.  525;  Aultman 
v.  Steinman,  8  Neb.  109;  Bucklin  v. 
Strickler,  32  Neb.  602;  Layne  v. 
Ohio  River  R.  Co.,  35  W.  Va.  438. 


169] 


WHAT    IS    AN    APPEARANCE. 


609 


against  the  same  in  this  district."  20  A  removal  of  a  cause  from 
a  State  to  a  Federal  court  is  not  a  general  appearance  whether 
or  not  the  petitioner  states  that  he  appears  specially  for  the 
purpose  of  the  removal  only,21  nor,  it  has  been  held,  is  a 
demand  for  service  of  a  copy  of  the  complaint,  made  by  a 
defendant  in  person  or  by  an  attorney,22  nor  a  motion  to  quash 
an  attachment  against  a  non-resident.23  The  later  authorities 
hold  that  when  an  objection  to  the  jurisdiction  over  the  person 
of  the  defendant  is  filed  with  a  formal  appearance,  the  latter 
will  be  considered  to  be"  special  and  not  general,23  and  that  a 
party  may  file  a  special  appearance  with  an  objection  to  the 
jurisdiction  over  his  person  joined  with  other  objections,  such 
as  a  want  of  equity,24  or  want  of  jurisdiction  over  the  subject- 
matter  of  the  suit,25  without  submitting  to  the  jurisdiction 
of  the  court.26  The  defense  by  its  attorneys  at  its  expense  of 
a  suit  against  another  in  pursuance  of  a  contract  with  him  is 
not  an  appearance  by  a  foreign  corporation ;  nor  will  it  support 
an  application  by  the  plaintiff  to  make  it  a  party.27  It  has 
been -held:  that  after  the  question  of  jurisdiction  has  been  prop- 
erly raised,  and  the  court  has  reserved  its  decision  thereupon,  a 
subsequent  defensive  proceeding,  such  as  an  appeal  from  an 
injunction  order,28  or  the  cross-examination  of  a  witness,  whose 
deposition  is  taken  by  the  plaintiff,  and  stipulating  that  copies 
of  letters  and  telegrams  may  be  used  by  either  party  in  lieu 
of  the  originals,29  is  no  waiver  of  the  objection.     It  has  been 


20  Jones  v.  Gould,  C.  C.  A.,  149 
Fed.   1.53. 

21  Goldey  v.  Morning  News,  156 
U.  S.  518,  39  L.  ed.  517;  Wabash  W. 
R.  Co.  v.  Brow,  104  U.  S.  271,  41  L. 
ed.  431  ;  National  Accident  Society 
v  Spiro,  164  U.  S.  281,  41  L.  ed. 
435. 

22  Murphy  v.  Herring-Hall-Marvin 
Safe  Co.,  184  Fed.  495;  Hoyt  v.  Og- 
den  Portland  Cement  Co.,  (N.  D.  N. 
Y.)    185  Fed.  889. 

23  Davis  v.  Cleveland,  Cincinnati, 
Chicago  &  St.  Louis  Ry.  Co.,  217  U. 
S.  157,  54  L.  ed.  708. 

24  Wood  v.  Wilbert,  226  U.  S.  384, 
3S6,  57  L.  ed.  — . 

Fed.  Frac.  Vol.  I.— 39. 


25  Southern  Pac.  Co.  v.  Arlington 
Heights  Fruit  Co.,  C.  C.  A.  191  Fed. 
101.  But  see  Peale  v.  Marian  Coal 
Co.,   172   Fed.   639. 

26Kelley  v.  T.  L.  Smith  Co.,  C. 
C.  A.  196  Fed.  466. 

27  Nelson  v.  Husted,  182  Fed.  921. 
But  see  Texas  &  Pac.  Ry.  Co.  v. 
Saunders,  151  U.  S.  105,  38  L.  ed. 
90;  Hankinson  v.  Page,  31  Fed.  184; 
Caskey  v.  Chenoweth,  62  Fed.  712. 

28Bidwell  v.  Toledo  Canal  St. 
Ry.  Co.,  72  Fed.  10. 

29  Central  Grain  &  Stock  Ex- 
change v.  Board  of  Trade,  C.  C. 
A.,  125  Fed.  463. 


610 


APPEAKANCE. 


[§  169 


held :  that  a  general  appearance  does  not  authorize  an  amend- 
ment of  the  complaint,  so  as  to  allege  a  different  cause  of  ac- 
tion, upon  which  the  defendant  could  not,  without  its  consent, 
have  been  sued  within  the  district.30  A  State  statute  providing 
that  a  special  appearance  for  the  sole  purpose  of  questioning 
the  jurisdiction  is  equivalent  to  a  general  appearance  is  consti- 
tutional ; 31  and  has  been  followed  in  collateral  proceedings,  in 
which  a  State  judgment  was  offered  in  evidence,32  but  it  does 
not  bind  the  Federal  courts  at  law  or  in  equity  even  in  a  case 
originally  instituted  in  a  State  court  and  brought  into  a  court 
of  the  United  States  by  removal.33 

A  special  appearance,  it  would  seem,  is  regularly  made  by 
special  leave  of  the  court  obtained  by  an  ex  parte  motion,34 
and  it  is  the  safer  practice  to  accompany  it  with  an  undertak- 
ing by  the  defendant  to  abide  by  the  further  orders  of  the 
court.35  Rule  22  of  the  Circuit  Court  of  the  Kinth  circuit  pro- 
vides that  any  party  appearing  specially  shall  state  in  the  paper 
which  he  serves  and  files  that  the  appearance  is  special,  "and 
that  if  the  purpose  for  which  such  special  appearance  is  made 
shall  not  be  sanctioned  or  sustained  by  the  court  he  will  appear 
generally  in  the  cause,"  and  that  if  such  statements  be  not  made 
"the  appearance  shall  be  deemed  and  treated  as  a  general  ap- 
pearance." This  has  been  upheld.36  By  styling  a  paper  a 
special  appearance  the  draftsman  does  not  prevent  the  appear- 
ance from  becoming  general.37 


30  Stonega  Coal  &  Coke  Co.  v. 
Louisville  &  N.  R.  Co.,  139  Fed.  271. 

31  Western  Wheeled  Scraper  Co., 
v.   Gahagan,   152   Fed.  648. 

32  York  v.  Texas,  137  U.  S.  15, 
34  L.  ed.  604:  Chinn  v.  Foster-Mil- 
1'iirn  Co.,   105  Fed.  158. 

33  Southern  Pacific  Co.  v.  Den- 
ton, 146  U.  S.  202.  36  L.  ed.  943; 
Mexican  Central  Ry.  Co.  v.  Pinck- 
ney,  149  U.  S.  194,  37  L.  ed.  699; 
Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Gonzales,  151  U.  S.  496.  38  L.  ed. 
248;  ail  of  which  arose  under  the 
Texan  statute.  Louden  Machinery 
Co.  v.  Am.  Mercantile  Iron  Co..  127 
Fed.   100S,   under  the   Iowa   statute. 


34  Thayer  v.  Wales.  5  Fisher's 
Pat.  Cas.  448;  Romaine  v.  Union 
Ins.  Co.,  28  Fed.  625.  But  see  Dorr 
v.  Gibboney,  3  Hughes,  382;  Nation- 
al F.  Co.  v.  Moline  M.  I.  Works,  18 
Fed.  863;  York  County  Sav.  Bank 
v.  Abbot,   139  Fed.  988. 

35  Romaine  v.  Union  Ins.  Co.,  28 
Fed.  625. 

36  Mahr  v.  Union  Pac.  R.  Co.,  140 
Fed.  921. 

37  Crawford  v.  Foster,  C.  C.  A.,  84 
Fed.  939;  Caskey  v.  Chenoweth,  C. 
C.  A.,  62  Fed.  712;  Chicago  Title  & 
Trust  Co.  v.  Newman,  C.  C.  A.,  1S7 
Fed.   573. 


§  1T0] 


ITS   EFFECT. 


611 


An  appearance  gratis  can  only  be  made  by  a  defendant 
named  in  the  introduction  or  prayer  for  process  in  the  bill, 
unless  by  consent  of  all  the  parties  to  the  suit.38 

§  1 70.  Effect  of  an  appearance.  A  general  appearance 
waives  all  objections  to  the  form  or  manner  of  service  of  the 
subpoena,1  including  the  objections  that  the  defendant  was  not 
found  and  did  not  reside  within  the  district2  and  that  neither 
party  resides  within  the  district  even  where  the  case  was  origi- 
nally brought  in  the  District  Court  of  the  United  States,  and 
the  jurisdiction  depends  upon  diversity  of  citizenship.3  Where 
the  want  of  a  residence  essential  to  the  jurisdiction  appears 
upon  the  face  of  the  plaintiff's  pleading,  the  objection  may  be 


38  Attorney-General  v.  Pearson,  7 
Simons,  290,  302;  Kentucky  S.  Min. 
Co.  v.  Day,  2  Saw.  468,  473.  See 
Anderson  v.  Watt,  ]38  U.  S.  694,  34 
L.  ed.  1078;  Beck  &  Pith  Co.  v. 
Wacker  &  B.  B.  &  M.  Co.,  C.  C.  A., 
76  Fed.  10;  Roberts  v.  Brooks,  71 
Fed.  914. 

§  1 70.  1  Segee  v.  Thomas,  3 
Blatchf  11;  Goodyear  v.  Chaffee,  3 
Blatch.  268;  Hale  v.  Continental  L. 
Ins.  Co.,  12  Fed.  359;  Provident  Sav. 
L.  Assur.  Soc.  v.  Ford,  114  U.  S. 
635,  639,  29  L.  ed.  261,  263;  Rob- 
inson v.  Xat.  S.  Co.,  12  Fed.  361;  s. 
c,  20  Blatchf.  513;  Buerk  v.  Im- 
haeuser,  8  Fed.  457. 

2  Texas  &  Pac.  Ry.  Co.  v.  Cox, 
145  U.  S.  593,  603,  36  L.  ed.  829, 
832;  St.  Louis  &  S.  F.  Ry.  Co.  v. 
McBride,  141  U.  S.  127,  132,  35  L. 
ed.  659.  661;  Sayles  v.  Northwestern 
Ins.  Co.,  2  Curt.  212;  Shields  v. 
Thomas,  18  How.  253,  259,  15  L. 
ed.  368,  370;  Toland  v.  Sprague,  12 
Pet.  300,  331,  9  L.  ed.  1093,  1105; 
Provident  Sav.  L.  Assur.  Soc.  v. 
Ford,  114  U.  S.  635,  639,  29  L.  ed. 
261,  263;  Central  Tr.  Co.  v.  Mc- 
George,  151  U.  S.  129,  38  L.  ed.  98; 
Int.  Constr.  &  I.  Co.  v.  Gibnev,  160 


U.  S.  217,  40  L.  ed.  401;  Texas  & 
Pac.  Ry.  Co.  v.  Saunders,  151  U. 
S.  105,  38  L.  ed.  90.  But  see  Noyes 
v.  Canada,  30  Fed.  665;  Reinstadler 
v.  Reeves,  33  Fed.  308.  Held,  that 
a  general  appearance  waived  the  ob- 
jection that  the  defendants  were  not 
residents  of  the  district.  Lowry  v. 
Tile  M.  &  G.  Ass'n,  98  Fed.  817; 
Fosha  v.  W.  U.  Tel.  Co.,  114  Fed. 
701 ;  A.  L.  Wolff  &  Co.  v.  Choctaw, 
O.  &  G.  R.  Co.,  133  Fed.  601 ;  Mahr 
v.  Union  Pac.  R.  Co.,  140  Fed.  921. 
Of.  Mexican  Central  Ry.  Co.  v.  Rob- 
inson, C.  C.  A.,  128  Fed.  1020.  The 
above  statement  in  the  text  was 
quoted  with  approval  in  McKane  v. 
Burke,  132  Fed.  688. 

3  Matter  of  Moore,  209  U.  S.  490, 
52  L.  ed.  904;  Western  L.  &  Sav. 
Co.  v.  Butte  &  B.  Consol.  Min.  Co., 
210  U.  S.  368,  52  L.  ed.  1101;  Horn 
v.  Pere  Marquette  R.  Co.,  151  Fed. 
626;  Midland  Contracting  Co.  v. 
Toledo  Foundry  &  Machine  Co.,  C. 
C.  A.,  154  Fed.  797;  U.  S.  Gypsum 
Co.  v.  Sliwienska,  C.  C.  A.,  183  Fed. 
688;  Title  Guaranty  &  Surety  Co. 
v.  U.  S.,  C.  C.  A.,  187  Fed.  98.  See 
Southern  Pac.  Co.  v.  Denton,  146 
U.  S.  205,  36  L.  ed.  945:  supra,  §  61. 


612  APPEARANCE.  [§    170 

raised  by  a  motion  to  dismiss.4  It  is  not  waived  by  answer 
after  a  motion  upon  this  ground  has  been  overruled.5  Where 
the  complaint  misstates  the  residence,  the  objection  can  be 
raised  by  answer.6  It  has  been  held  that  a  general  appearance 
waives  the  objection  that  an  action  by  the  trustee  in  bankruptcy 
was  not  brought  in  the  proper  district,6*  and  that  a  general 
appearance  by  a  foreign  receiver  waives  any  question  of  the 
jurisdiction  of  the  court  to  adjudicate  concerning  the  internal 
affairs  of  a  foreign  corporation.7  A  general  appearance  does 
not  waive  an  objection  to  the  jurisdiction  of  the  court  upon 
the  ground  of  a  lack  of  the  requisite  difference  of  citizenship ; 8 
nor  admit  the  validity  of  a  writ  of  foreign  attachment  previous- 
ly issued,9  nor,  it  has  been  held,  authorize  an  amendment  of 
the  plaintiff's  pleading  so  as  to  set  forth  a  new  cause  of  action, 
upon  which  the  defendant  could  not  originally  have  been  sued 
in  the  jurisdiction.10  It  has  been  held :  That  if  a  party  joins  with 
a  special  appearance  and  motion  to  set  aside  service  of  process  a 
motion  to  dismiss  the  suit  on  another  ground,  he  thereby  waives 
his  objection  to  the  irregularity  of  service,  and  his  proceeding  is 
equivalent  to  a  general  appearance.11  After  a  special  appear- 
ance for  the  purpose  of  objecting  to  the  jurisdiction  has  been 
made,  and  the  objection  overruled,  the  right  to  insist  upon  this 
objection  on  an  appeal  is  not  lost  by  a  subsequent  appearance 
and  defense  to  the  suit  upon  the  merits.12    The  court  has  power 

4  Southern  Pac.  Co.  v.  Denton,  146  10  Western    Wheeled    Scraper    Co. 
U.   S.   202,   36   L.   ed.   943;    Tiee   v.  v.   Gahagan,   152   Fed.  648. 
Hurley,  145  Fed.  391.    But  see  con-  "  Fitzgerald  &  M.  C.  Co.  v.  Fitz- 
tra  dies.  &  0.  Coal  Agency  Co.  v.  gerald,  137  U.  S.  98,  34  L.  ed.  60S; 
Fire  Creek  C.  &  C.  Co.,  119  Fed.  942.  Jones  v.  Andrews,  10  Wall.  327,  19 

5  Leonard  v.  Merchants'  Coal  Co.,  L.   ed.  935;   St.  Louis  &   S.   F.   Ry. 
C.  C.  A.,  162  Fed.  885.  Co.  v.  McBride,  141  U.  S.  127,  132, 

6  Leonard  v.  Merchant's  Coal  Co.,       35  L.  ed.  659,  661 ;  Edgell  v.  Felder, 
C.  C.  A.,  162  Fed.  885.  C.  C.  A.,  84  Fed.  69.     But  see  U.  S. 

OaMcEldowney  v.  Card,  193  Fed.  v.  Am.  Bell.  Tel.   Co.,   29   Fed.   17; 

475.  McGillin    v.    Claflin,    52    Fed.    657. 

7  Chicago    Title    &    Trust    Co.    v.  But  see  Kelley  v.  T.  L.  Smith  Co., 
Newman,  C.  C.  A.,  187  Fed.  573.  C.   C.  A.,   196   Fed.  466;   see   §   169 

8  Romaine   v.   Union   Ins.   Co.,   28  supra. 

Fed.    625;    U.S.    R.    S.    1    Supp.,  12  Harkness  v.  Hyde,  98  U.  S.  476, 

pp.  137,  175;  18  St.  at  L.  470;  Act  25   L.  ed.  237,  Mexican  C.  Ry.   Co. 

of  March  3,  1875,  §  5.  v.   Pinckney,   149   U.   S.   194,   37    L. 

9  Sackett   v.    Rumbaugh,    45    Fed.  ed.  699.     See  §  169,  suvra. 
23. 


170] 


ITS   EFFECT. 


613 


to  allow  a  general  appearance  to  be  changed  by  amendment  to 
a  special  appearance,13  or  to  be  withdrawn.14  This  has  been 
permitted  when  the  original  complaint  has  misstated  the  plain- 
tiff's residence  and  that  subsequently  appears  to  be  such  as  to 
defeat  the  jurisdiction ; 15  and  where  a  general  appearance  was 
made,  after  the  service  of  a  summons,  but  before  a  pleading 
was  filed  or  served,  and  the  defendant  did  not  then  know  that 
the  sole  ground  of  jurisdiction  was  a  diversity  of  citizenship ; 16 
but  not  ordinarily  where,  before  appearing,  a  defendant  had  no- 
tice of  the  facts  upon  which  he  relies  or  reasonable  opportunity 
to  ascertain  them  and  his  employment  in  the  case  was  not  limited 
by  his  client.17  Permission  to  withdraw  a  general  appearance, 
if  conditioned  that  it  is  granted  without  prejudice  to  the  plain- 
tiff, does  not  deprive  the  latter  of  rights  founded  upon  a  rule 
that  a  general  appearance  is  a  waiver  of  a  defect  in  the  service 
of  process.18  Otherwise  it  does. 


19 


13  U.    S.    v.    Yates,    6    How.    605, 

12  L.  ed.  575;  Hohorst  v.  Hamburg 
Am.  P.  Co.,  38  Fed.  273. 

14  Rhode  Island  v.  Massachusetts, 

13  Pet.  23,  10  L.  ed.  41;  First  Nat. 
Bank  v.  Cunningham,  48  Fed.  510; 
Chicago  Title  &  Trust  Co.  v.  New- 
man,  C.   C.   A.,   187    Fed.   573,   577. 

15  Hagstoz  v.  Mutual  Life  Ins.  Co. 
of  New  York,  179  Fed.  569.  See 
Leonard  v.  Merchants'  Coal  Co.,  C. 
C.  A.,  162  Fed.  885. 


16  Crown  Cotton  Mills  v.  Turner 
(S.  D.  N.  Y.),  82  Fed.  337. 

17  Lamborn  v.  Louisiana  Sugar 
Co.,  Mack,  J.,  N.  Y.  L.  J.  Dec.  2, 
1912. 

18  Graham  v.  Spencer,  14  Fed.  603. 

19  Graham  v.  Spencer,  14  Fed.  603, 
607;  First  Nat.  Bank  of  Denver 
v.   Cunningham,   48    Fed.   510,   517. 


CHAPTER  VIII. 


TAKING  BILLS  PRO  CONFESSO. 


§  171.  When  a  bill  may  be  taken  pro  confesso.     "It 

shall  be  the  dutv  of  the  defendant,  unless  the  time  shall  be 
enlarged,  for  cause  shown,  by  a  judge  of  the  court,  to  file  his 
answer  or  other  defense  to  the  bill  in  the  clerk's  office  within 
the  time  named  in  the  subpoena  as  required  by  rule  12.  In. de- 
fault thereof  the  plaintiff  may,  at  his  election,  take  an  order 
as  of  course  that  the  bill  be  taken  pro  confesso;  and  thereupon 
the  cause  shall  be  proceeded  in  ex  parte."  x     "If  the  answer  in- 


§  171.  lEq.  Rule  16.  By  the 
early  practice  of  the  civil  law  fail- 
ure to  appear  on  the  day  to  which 
the  cause  was  adjourned,  was 
deemed  to  be  a  confession  of  the  ac- 
tion; but  later  this  rule  was 
changed,  so  that  the  plaintiff,  not- 
withstanding the  defendant's  con- 
tumacy only  obtained  judgment  in 
accordance  with  the  truth  of  the 
case  as  established  by  an  ex-partc 
examination.  Keller  Proced.  Rom. 
§  69.  The  original  Chancery  prac- 
tice was  in  accordance  with  the 
later  Roman  law.  Hawkins  v.  Crook, 
2  Peere  Williams,  556.  But  at  least 
as  early  as  the  Seventeenth  Century, 
bills  were  taken  pro  confesso  for  con- 
tumacy. Ibid.  This,  however,  was 
not  done  until  after  an  attachment 
to  compel  an  answer,  an  attachment 
with  proclamations,  a  commission 
of  rebellion,  and  sequestration.  For- 
um Romanum,  36;  Boudinot  v.  Sym- 
h:ps.  Wallace,  C.  C.  139,  Fed.  Cas. 
No.  1,095.  In  Thomson  v.  Wor- 
cester, 114  U.  S.  104,  119,  29  L.  ed. 
105,  110.     See  the  report  of  Master 


Hoffman  to  Chancellor  Sanford  in 
Williams  v.  Corwin,  Hopkins,  Ch. 
471.  The  English  Chancery  practice 
prevailed  in  the  courts  of  the  United 
States  as  late  as  1801.  Boudinot 
v.  Symmes,  Wallace,  C.  C.  139,  Fed. 
Cas.  No.  1,695.  A  decree  taking  a 
bill  in  equity  pro  confesso  presents 
striking  analogies  to  a  judgment  by 
nil  dicit,  and  to  judgment  for  plain- 
tiff on  demurrer  to  the  defendant's 
plea.  Davis  v.  Davis,  2  Atk.  21; 
Hawkins  v.  Crook,  2  Peere  Wil- 
liams, 556,  quoted  in  2  Eq.  Cas.  Ab. 
R.,   179. 

Eq.  Rule  12  of  1842  provided: 
"The  defendant  is  to  enter  his  ap- 
pearance in  the  suit  in  the  clerk's 
office  on  or  before  the  day  at  which 
the  writ  is  returnable;  otherwise, 
the  bill  may  be  taken  pro  confesso." 
According  to  Eq.  Rule  18  of  1842, 
the  defendant  was  allowed  until  the 
rule  day  next  succeeding  that  of 
entering  his  appearance  before  he 
was  required  to  file  his  plea,  de- 
murrer, or  answer  to  the  bill.  "In 
default    thereof,    the    plaintiff   may, 


614 


171] 


WHEN    MAY    BE    TAKEN    PKO    CONFESSO. 


615 


elude  a  set-off  or  counter-claim,  the  party  against  whom  it  is 
asserted  shall  reply  within  ten  days  after  the  filing  of  the  an- 
swer, unless  a  longer  time  be  allowed  by  the  court  or  judge.  If 
the  counter-claim  is  one  which  affects  the  rights  of  other  de- 
fendants they  .or  their  solicitors  shall  be  served  with  a  copy  of 
the  same  within  ten  days  from  the  filing  thereof,  and  ten  days 
shall  be  accorded  to  such  defendants  for  filing  a  reply.  In  de- 
fault of  a  reply,  a  decree  pro  confesso  on  the  counter-claim  may 
be  entered  as  in  default  of  an  answer  to  the  bill."  2  "In  every 
case  where  an  amendment  to  the  bill  shall  be  made  after  answer 
filed,  the  defendant  shall  put  in  a  new  or  supplemental  answer 
within  ten  days  after  that  on  which  the  amendment  or  amended 
bill  is  filed,  unless  the  time  is  enlarged  or  it  is  otherwise  ordered 
by  a  judge  of  the  court;  and  upon  a  default,  the  like  pro- 
ceedings may  be  had  as  upon  an  omission  to  put  in  an 
answer."3  Under  the  former  practice,  where  the  bill  when 
the  subpoena  was  served  did  not  show  jurisdiction  against  a 
defendant,  a  subsequent  amendment  stating  facts  sufficient  to 


at  his  election,  enter  an  order  (as 
of  course)  in  the  order-hook,  that 
the  bill  be  taken  pro  confesso;  and 
thereupon  the  cause  shall  be  proceed- 
ed in  ex  parte,  and  the  matter  of 
the  bill  may  be  decreed  by  the 
court  at  any  time  after  the  expira- 
tion of  thirty  days  from  and  after 
the  entry  of  said  order,  if  the  same 
can  be  done  without  an  answer,  and 
is  proper  to  be  decreed;  or  the  plain- 
tiff, if  he  requires  any  discovery  or 
answer  to  enable  him  to  obtain  a 
proper  decree,  shall  be  entitled  to 
process  of  attachment  against  the 
defendant  to  compel  an  answer,  and 
the  defendant  shall  not,  when  ar- 
rested upon  such  process,  be  dis- 
charged therefrom,  unless  upon  fil- 
ing his  answer,  or  otherwise  com- 
plying with  such  order  as  the  court 
or  a  judge  thereof  may  direct,  as  to 
pleading  to  or  fully  answering  the 
bill,  within  a  period  to  be  fixed  by 
the  court  or  judge,  and  undertaking 
to   speed   the   cause." 


2Eq.  Rule  31. 

3Eq.  Rule  32.  Under  the  Equity 
Rules  of  1842,  in  a  proper  case  part 
of  the  bill  might  be  taken  as  con- 
fessed. Suydam  v.  Beals,  4  McLean 
12;  Hale  v.  Continental  Life  Ins. 
Co.,  20  Fed.  344.  Thus,  where  the 
defendant  had  repeatedly  failed  to 
answer  an  interrogatory,  the  parts 
of  the  bill  which  the  same  affected 
were  ordered  taken  as  confessed. 
Hale  v.  Continental  Life  Ins.  Co., 
20  Fed.  344.  Eq.  Rule  64  of  1842 
provided:  that  where  exceptions  to 
an  answer  for  insufficiency  had  been 
sustained,  the  defendant  might,  if 
he  chose,  enter  an  order  taking  as 
confessed  the  parts  of  the  bill  to 
which  the  exceptions  related.  It 
seems  that,  in  the  absence  of  a  rule 
upon  the  subject,  the  complainant 
in  such  a  case  might,  at  his  election, 
have  either  the  whole  bill  or  the 
parts  insufficiently  answered,  taken 
as   confessed. 


616  TAKING     BILLS     PRO    CONFESSO.  [§    171 

show  jurisdiction  against  it  would  not  warrant  the  entry  of  an 
order  taking  the  bill  as  confessed  without  a  second  service  of 
the  subpoena,  or  an  appearance  by  such  defendant.4  The  same 
practice  seems  to  have  been  observed  when  the  bill  was  amended 
so  as  to  state  a  new  case  or  to  bring  in  new  parties.5  As  to 
the  rule  when  trivial  amendments  are  added  to  the  bill,  the 
practice  in  the  United  States  was  unsettled.6  Where  an 
amended  bill  filed  without  leave  after  a  default  in  defendant's 
appearance  was  withdrawn  without  the  payment  of  costs  or 
furnishing  a  copy  to  him,  it  was  held  that  the  right  to  have 
the  original  bill  taken  as  confessed  had  not  been  waived.7 
In  a  proper  case,  part  of  the  bill  might  be  taken  as  confessed.8 
Thus,  where  the  defendant  had  repeatedly  failed  to  answer  an 
interrogatory,  the  parts  of  the  bill  which  the  same  affected  were 
ordered  taken  as  confessed.9  So  where  exceptions  to  an  an- 
swer for  insufficiency  had  been  sustained,  the  complainant 
might,  if  he  chose  enter  an  order  taking  as  confessed  the  parts 
of  the  bill  to  which  the  exceptions  relate.10  It  seems,  that,  in 
the  absence  of  a  rule  upon  the  subject,  the  complainant  in  such 
a  case  might,  at  his  election,  have  either  the  whole  bill  or  the 
parts  insufficiently  answered  taken  as  confessed.11  It  was  for- 
merly uncertain  whether,  when  the  defendant  after  answering 
the  original  bill  fails  to  file  a  further  answer  to  material  amend- 
ments thereof,  the  complainant  was  to  have  the  whole  bill  taken 

4Cuebas  v.  Cuebas,  223  U.  S.  376;  1  Sheffield  Furnace  Co.  v.  Withe- 
Non-Magnetic  Watch  Co.  v.  Asso.  H.  row,  149  U.  S.  574,  576,  37  L.  ed. 
of   Geneva,   45    Fed.    210.      But   see  353^  855. 

Brown  v.  Lake  Sup.  Iron  Co.,  134  U.  a  Suydam  v.  Beals,  4  McLean,  12; 

S.   530,   33   L.   ed.    1021;    Nelson  v.  Ha]e   v    Cont>  L    Ing-   Co-)  20  Fed. 

Eaton,  66  Fed.  376.  344 

5  Nelson  v.  Eaton.  66  Fed.  376;  9'Ha]e  y  Cont_  L  Ing  Co>  20 
Bank    of   Utica    v.    Finch,    1    Barb. 


Fed.  344. 

10  Eq.    Rule    64    of    1842;    infra, 
§  194. 


Ch.  (N.  Y. )  75;  Weightman  v. 
Powell,  2  De  G.  &  S.  570;  Beecher 
v.  Ireland,  46  Kan.  97. 

6  The  English  rule  was  that  a  new  "  Abergavenny  v.  Abergavenny,  2 

subpeena  must  be   served.     Weight-  E1-   Ca-   Abr-   17S'    Weaver   v.   Liv- 

man   v.   Powell,  2   De  G.  &  S.   570.  ingston,    Hopk.    Ch.     (N.    Y.)    595; 

See  also  Blythe  v.  Hinckley,  84  Fed.  Turner   v.   Turner,   1   Dickens,  316; 

228;    Harris   v.   Deitrich,   29   Mich.  Smith    v.    St.    Louis    Mut.    L.    Ins. 

366.      Contra,    Bond    v.    Howell,    11  Co.,  2  Tenn.  Ch.  605.     But  see  Ba- 

Paige   (N.  Y.),  233.  con    v.    Griffith,    2    Dickens,    473; 


172] 


PRACTICE. 


Gl7 


as  confessed,  or  only  the  part  unanswered.  Tt  is  doubtful 
whether  a  bill  can  be  taken  as  confessed  against  an  infant  or 
other  person  under  a  disability.13  Certainly,  it  cannot  before 
a  guardian  ad  litem  has  been  appointed.14  Should  the  guardian 
refuse  to  answer,  the  safer  course  for  the  complainant  would 
be  to  obtain  a  reference  to  a  master  and  prove  the  allegations 
of  the  bill  before  him.15 

§  172.  Practice  in  taking  a  bill  pro  confesso.  When  a 
defendant  fails  to  appear  or  to  plead  in  due  time,  "the  plain- 
tiff may,  at  his  election,  enter  an  order  (as  of  course)  in  the 
orderbook,  that  the  bill  be  taken  pro  confesso;  and  thereupon 
the  cause  shall  be  proceeded  in  ex  'parte."1  The  order  is 
entered  by  the  clerk  without  the  intervention  of  a  judge.2 
Doubts  have  been  expressed  as  to  the  propriety  of  entering  such 
an  order  pending  a  motion  upon  a  special  appearance  to  quash 
a  subpoena,  or  in  the  case  of  a  cross-bill  pending  a  motion  to 
dismiss  the  original  bill  as  against  the  cross-complainants.3 
If  a  bill  is  fatally  defective  and  shows  that  the  court  has  no 
jurisdiction,  it  is  improper  to  enter  an  order  or  decree  taking 
the  same  pro  confesso}  By  the  former  practice,  there  was  no 
need  of  serving  the  order  taking  the  bill  pro  confesso}  "When 
the  bill  is  taken  pro  confesso  the  court  may  proceed  to  a  decree 
at  any  time  after  the  expiration  of  thirty  days  from  and  after 
the  entry  of  the  order  to  take  the  bill  pro  confesso;  and  such 
decree  shall  be  deemed  absolute,  unless  the  court  shall,  at  the 


Dennison  v.   Bassford,  2  Paige    (N. 
Y.),  370. 

12  Suydam  v.  Beals,  4  McLean,  12, 
15.  The  latter  practice  seems  to  be 
favored  in  Trust  &  Fire  Ins.  Co.  v. 
Jenkins,  8  Paige  (N.  Y.),  589,  593, 
594;  Hawkins  v.  Crook,  2  P.  Wins. 
559;    Davis  v.  Davis,  2  Atk.  23. 

13  Compare  the  positive  language 
of  Equity  Rule  16  of  1842.  with 
Mills  v.  Dennis,  3  J.  Ch.  (N.  Y.) 
367;  O'Hara  v.  Mac  Connell,  93  U. 
S.  151,  23  L.  ed.  S42 ;  Massie  v.  Don- 
aldson, 8  Ohio,  377;  Chaffin  v.  Kim- 
ball, 23  111.  36,  38. 

14  O'Hara  v.  MacConnell,  93  U. 
S.  151,  23  L.  ed.  842. 


"Mills  v.  Dennis,  3  J.  Ch.  (X. 
Y.)    367. 

§  172.  lEq.  Rule  16  copied  from 
Eq.  Rule  18  of  1842.  See  Read  v. 
Consequa,  4  Wash.  174;  O'Hara  v. 
MacConnell,  93  U.  S.  150,  152,  23 
L.  ed.  840,  842. 

2Eq.   Rule   5. 

3  Blythe  v.  Hinckley,  84  Fed.  228. 

4  Cuebas  v.  Cuebas,  223  U.  S.  370, 
50  L.  ed.  476. 

5Eq.  Rule  17;  Bank  of  U.  S.  v. 
White,  8  Peters  262,  8  L.  ed.  938. 
See  Oakley  v.  O'Neill,  2  N.  J.  Eq. 
287. 


618 


TAKING     BILLS     PRO    CONFESSO. 


[§  172 


same  term,  set  aside  the  same,  or  enlarge  the  time  for  filing 
the  answer,  upon  cause  shown,  upon  motion  and  affidavit.  No 
such  motion  shall  be  granted  unless  upon  payment  of  the  costs 
of  the  plaintiff  in  the  suit  up  to  that  time,  or  such  part  thereof 
as  the  court  shall  deem  reasonable,  and  unless  the  defendant 
shall  undertake  to  file  his  answer  within  such  time  as  the  court 
shall  direct,  and  submit  to  such  other  terms  as  the  court  shall 
direct,  for  the  purpose  of  speeding  the  cause."6  The  appli- 
cation in  the  Federal  courts  should  be  made  by  motion7  sup- 
ported by  an  affidavit  showing  the  excuse  for  his  default,  and 
also,  unless  a  verified  answer  accompanies  the  application, 
wfrich  is  the  better  practice,  showing  the  nature  of  the  defense.8 
Great  liberality  should  be  shown  to  non-residents  served  by 
publication.  An  error  of  the  clerk  of  the  court,10  or  a  default, 
which  resulted  from  an  oversight  of  the  defendant's  counsel ;  n 
or  was  caused  by  his  attorney's  lack  of  knowledge  of  the  proper 
mode  of  procedure  in  equity;12  or  a  justifiable  reliance  upon 
the  defense  of  a  suit  by  a  person  in  privity  with  the  default,13 
is  a  reason  for  allowing  the  defendant  to  appear  and  defend. 
Where  due  service  was  made,  a  default  will  not  be  opened 
unless  a  defense  on  the  merits  is  shown.14  It  has  been  said: 
that  the  same  rule  applies  when  there  is  color  of  claim  that 
due  service  was  made.15  If  the  defense  seems  to  the  court  to 
be  unconscientious,  the  application  may  be  denied.16     In  the 


6  Eq.  Rule  17,  copied  in  substance 
from  Eq.  Rule  19  of  1842.  See  May- 
nard  v.  Pomfret,  3  Atk.  468;  Heyn 
v.    Heyn,    Jacob,    49. 

7  French  v.  Stewart,  22  Wall.  238, 
22  L.  ed.  854. 

8Schofield  v.  Horse  S.  C.  Co.,  65 
Fed.  433;  Massachusetts  B.  L. 
Assn  v.  Lohmiller,  74  Fed.  23: 
Wells  v.  Cruger,  5  Paige  (N.  Y.). 
364;  Winship  v.  Jewett,  3  Barb. 
Ch.  (N.Y.)  173j  Goodhue  v.  Church- 
man. 1  Barb.  Ch.  (N.  Y.)  596;  Keil 
v.  West,  21  Fla.  508;  Emery  v. 
Downing.  3  3  N.  J.  Eq.  59;  U.  S.  v. 
Whitmire,  ('.  C.  A,  188  Fed.  422. 
But  see  Metcalf  v.  Landers,  3  Baxt. 
(Tenn.)    35. 


9  American  F.  L.  M.  Co.  v.  Thom- 
as, C.  C.  A.,  73   Fed.  782. 

10  Blythe  v.  Hinckley,  84  Fed.  228. 

11  Benjamin  Schwarz  &  Sons  v. 
Kennedy,  356  Fed.  316.  But  see 
City  of  Kansas  City,  Kan.  v.  Union 
Pac.  R.  Co.,  C.  C.  A.,  192  Fed.  316. 

12  McFarland  v.  State  Savings 
Bank,  129  Fed.  244. 

13  D.  &  W.  Fuse  Co.  v.  Trumbull 
El.  Mfg.  Co.,  183  Fed.  784. 

14  Massachusetts  Ben.  Life  Ass'n 
v.  Lohmiller,  C.  C.  A.,  74  Fed.  23. 
See  White  v.  Crow,  110  U.  S.  183,  28 
L.  ed.  113. 

15  Massachusetts  Ben.  Life  Ass'n 
v.   Lohmiller,  C.  C.  A.,  74  Fed.  23. 

16  Parker  v.  Grant,   1  J.  Ch.    (N. 


§  172] 


PRACTICE. 


619 


State  courts,  applications  to  open  defaults  have  been  denied 
where  the  defendants  wished  to  plead  a  discharge  in  bank- 
ruptcy,17 and  in  one  case  where  the  complainant's  principal 
witness  had  died  between  the  default  and  the  motion.18  Where 
defendants  wished  to  plead  usury,  relief  has  been  conditioned 
upon  payment  of  the  principal,19  and  upon  a  waiver  of  defense 
to  the  claim  for  the  principal  and  legal  interest.20  An  assignee 
of  the  subject-matter  of  the  suit,  by  an  assignment  made  after 
the  default,  has  no  more  right  to  come  in  and  defend  than  was 
possessed  by  the  original  defendant;21  but  special  favor  is 
shown  to  assignees  for  the  benefit  of  creditors.22  It  has  been 
held  that  after  the  term,  a  decree  taking  a  bill  as  confessed 
cannot  be  set  aside  on  motion,23  unless  the  motion  was  made  or 
noticed  at  the  term  when  the  decree  was  entered,24  even  where 
there  is  a  rule  of  the  State  court  permitting  such  a  practice.25 
Thus,  the  entry  of  a  final  decree  by  default  upon  notice  to  the 
defendants,  without  the  entry  of  a  formal  order  or  interlocutory 
decree  taking  the  bill  as  confessed,  was  held  to  be  an  irregular- 
ity for  which  the  decree  would  not  be  set  aside  upon  motion  at 
a  subsequent  term.26  But  a  decree  taking  a  bill  as  confessed 
was  set  aside  upon  motion  at  a  later  term  when  it  had  been 
entered  after  appearance  and  before  the  time  to  plead  had 
expired.27  And  in  a  proper  case  such  a  decree  can  be  set  aside 
by  an  original  bill.28  A  decree  -pro  confesso  is  not  as  of  course 
according  to  the  prayer  of  the  bill,  nor  such  as  the  complainant 


Y.)  434;  Quincy  v.  Foot,  1  Barb. 
Ch.  (N.  Y.)  496;  Freeman  v.  War- 
ren, 3  Barb.  Ch.  (N.  Y.)  635;  Bax- 
ter v.  Lansing,  7  Paige  (N.  Y.), 
350;  National  Fire  Ins.  Co.  v. 
Sackett,  11  Paige    (N.  Y.),  660. 

17  Freeman  v.  Warren,  3  Barb. 
Ch.    (N.  Y.)    635. 

"Wooster  v.  Woodhull,  1  J.  Ch. 
(N.  Y.)    529. 

19  Bard  v.  Fort,  3  Barb.  Ch.  (N. 
Y.)   632. 

20  Quincy  v.  Foot,  1  Barb.  Ch. 
(N.  Y.)  496;  Watt  v.  Watt,  2  Barb. 
Ch.  (N.  Y.)  371;  National  Fire  Ins. 
Co.  v.  Sackett,  11  Paige  (N.  Y.) 
660. 


21  Watt  v.  Watt,  2  Barb.  Ch.  (X. 
Y.)    371. 

22Blanchard  v.  Cooke,  144  Mass. 
207. 

23  Allen  v.  Wilson,  21  Fed.  881; 
Linder  v.  Lewis,  1  Fed.  378;  Stuart 
v.  St.  Paul,  63  Fed.  644;  Electric 
Vehicle  Co.  v.  De  Dietrich  Import 
Co.,  159  Fed.  492. 

24  Stuart  v.  St.  Paul,  63  Fed.  (»(i4. 

25  Austin  v.  Riley,  55  Fed.  833. 

26  Linder  v.  Lewis,  1  Fed.  378. 
See  Stuart  v.  St.  Paul,  63  Fed.  688. 

27  Fellows  v.  Hall,  4  McLean.  281. 

28  Thomson  v.  Wooster,  114  U.  S. 
104,  112,  29  L.  ed.  105,  107;  infra. 
§§  450-452. 


020 


TAKING     BILLS     PRO    CONFESSO. 


[§  172 


chooses  to  take ;  but  it  is  made  by  the  court  according  to  what 
is  proper  to  be  decreed  upon  the  assumption  that  the  statements 
in  the  bill  are  true.29  It  has  been  held  that  there  is  an  excep- 
tion to  this  rule  in  the  case  of  a  bill  to  compel  the  issue  of  a 
patent,  since  the  public  are  interested  in  the  result,  and  that 
then  the  court  may  require  a  copy  of  the  proceedings  and  testi- 
mony in  the  patent-office  and  call  for  any  other  competent  evi- 
dence that  the  complainant  may  have  to  offer.30  "The  matter 
of  the  bill  ought  at  least  to  be  opened  and  explained  to  the 
court  whenever  the  decree  is  applied  for,  so  that  the  court  may 
see  that  the  decree  is  a  proper  one."  31  "The  bill,  when  con- 
fessed by  the  default  of  the  defendant,  is  taken  to  be  true  in  all 
matters  alleged  with  sufficient  certainty;  but  in  respect  to 
matters  not  alleged  with  due  certainty,  or  subjects  which,  from 
their  nature  and  the  course  of  the  court,  require  an  examination 
of  details,  the  obligation  to  furnish  proofs  rests  on  the  com- 
plainant." 32  In  the  State  courts  a  decree  pro  confesso  is 
usually  not  taken  against  an  infant  without  proof  of  the  facts.33 
The  Federal  practice  in  this  respect  is  not  settled.  When  the 
bill  relates  to  an  unsettled  account,  a  reference  to  a  master  is 
always  necessary.34  The  equity  rules  provide  that,  after  an 
order  taking  the  bill  pro  confesso  for  a  default  in  pleading, 
"thereupon  the  same  shall  be  proceeded  in  ex  parte."  Zb 
Whether  this  deprives  the  defendant  of  the  right  to  notice 
of  subsequent  proceedings  and  to  appear  before  the  master  is 
doubtful.36     It  has  been  held  that  he  has  no  right  to  a  notice 


29  Bradley,  J.,  in  Thomson  v. 
Wooster,  114  U.  S.  104,  113,  29  L. 
ed.  105,  108;  Andrews  v.  Cole,  20 
Fed.  410;  Rose  v.  Woodruff,  4  J.  Ch. 
(X.   Y.)    547,   548. 

30  Davis  v.  Garrett,  152  Fed.  723, 
725. 

31  Bradley,  J.,  in  Thomson  v. 
Wooster,  114  U.  S.  104,  113,  114,  29 
L.  ed.  105,   108. 

32  Master  Hoffman  in  Williams  v. 
Convin,  Hopkins  Ch.  471;  quoted 
by  Bradley,  J,,  in  Thomson  v. 
Wooster,  114  U.  S.  104,  110,  111,  29 
L.  ed.   105,   107.     See  Ohio  Central 


R.  Co.  v.  Central  Tr.  Co.,  133  U.  S. 
83,  91,  33  L.  ed.  561,  563. 

33Chaffin  v.  Kimball,  23  111.  36, 
38;  Ingersoll  v.  Ingersoll,  42  Mass. 
155;  Massie  v.  Donaldson,  8  Ohio, 
377,  381.  Cf.  O'Hara  v.  MaeCon- 
nell,  93  U.  S.  151,  23  L.  ed.  842. 

34  Pendleton  v.  Evans,  4  Wash. 
104,  112. 

35  Equity  Rule  17.  This  phrase 
is  not  used  in  the  Rules  of  1822. 
7  Wheat,  vii,  5  L.  ed.  376. 

36  Bradley,  J.,  in  Thomson  v. 
Wooster,  114  U.  S.  104,  119,  120, 
29  L.  ed.   105,  110. 


172] 


PRACTICE. 


621 


and  hearing  on  the  settlement  of  the  final  decree.37  By  the 
English  practice,  the  defendant,  after  a  decree  pro  confesso  and 
a  reference  for  an  account,  was  entitled  to  have  notice  of  the 
proceedings  and  to  a  hearing  before  the  master.38  The  same 
rule  prevails  in  the  Second,39  in  the  Third,40  and  in  the  jSTinth,41 
Circuits.  It  has  been  held  otherwise  in  the  Eighth  Circuit.42 
Where  a  bill  for  the  infringement  of  a  patent  alleges  infringe- 
ment of  "the  invention"  of  the  plaintiffs,  and  is  taken  as  con- 
fessed, it  seems  that  it  cannot  be  claimed  in  subsequent  pro- 
ceedings in  the  same  suit  that  the  patent  is  void  upon  its  face.43 
When  more  than  one  defendant  is  charged  with  a  joint  lia- 
bility, after  the  bill  has  been  taken  as  confessed  against  one, 
no  final  decree  can  be  made  against  him,  unless  and  until  a 
decree  is  entered  against  those  who  appear  and  defend  the 
suit ; 44  and  if  the  bill  is  finally  dismissed  upon  the  merits  as 
to  them,  it  will  be  dismissed  as  to  the  defaulter  also.45  But  the 
rule  seems  to  be  otherwise  where  his  liability  is  distinct  and 
several.46  Where  a  decree  pro  confesso  had  been  entered,  ad- 
judicating that  one  of  the  defendants  had  no  right  to  the  fund 
mentioned  in  the  bill,  it  was  held  to  be  error  for  a  final  decree, 
after  a  hearing  on  issues  raised  by  other  defendants,  to  give 
to  the  defaulter  an  interest  in  the  fund.47  It  seems  that  a 
decree  taking  a  bill  as  confessed  is  of  no  effect  unless  followed 


37  Provident  Life  &  Trust  Co.  of 
Philadelphia  v.  Camden  &  T.  Ry. 
Co.,  C.  C.  A.,  177  Fed.  854  (Third 
Circuit) . 

38  Bennett  v.  Hoefner,  17  Blatchf. 
341. 

39  Davis  v.  Garrett,  152  Fed.  723. 

40  Southern  Pac.  Co.  v.  Temple, 
59  Fed.  17. 

41  Austin  v.  Riley,  55  Fed.  833. 

42  Heyn  v.  Heyn,  Jacob,  49.  So 
in  the  New  York  Chancery,  1 
Hoffman  Ch.  Pr.  520;  1  Barb.  Oh. 
Pr.  479.  In  New  Jersey  the  rule 
was  discretionary.  Brundage  v. 
Goodfellow,  4  Halst.  Ch.  513; 
Thomson  v.  Wooster,  114  U.  S.  104, 
119,  120,  29  L.  ed.  105,  110. 

43  Dobson  v.  Hartford  Carpet  Co., 


114  U.   S.  439,  446,  447,  29   L.  ed.  • 
177,  179;  Reedy  v.  Western  El.  Co., 
C.  C.  A.,  83  Fed.  709. 

44Frow  v.  De  La  Vega,  15  Wall. 
552,  21   L.  ed.   GO. 

45  Terry  v.  Fontaine's  Adm'r,  83 
Va.  451 ;  Petty  v.  Hannum,  2 
Humph.  (Tenn.)  102,  36  Am.  Dec. 
303;  Butler  v.  Kenzie,  90  Tenn.  31  ; 
s.  c,  15  S.  W.  1068;  Clason  v.  Mor- 
ris, 10  Johns.  (N.  Y.)  524;  Kooper 
v.  Dyer,  59  Vt.  477,  59  Am.  Rep. 
742. 

46  Andrews  v.  Lee,  1  Dev.  &  B. 
Fq.  (N.  C.  318;  Simpson  v.  Moore, 
5  Lea   (Tenn.)   376. 

47  Third  Nat.  Bank  v.  Atlantic 
City,  C.  C.  A.,  130  Fed.  751. 


622  TAKING     BILLS     PRO    CONFESSO.  [§    172 

by,  or  included  in,  a  final  decree.48  An  appeal  can  be  taken 
from  the  decree,  after  a  bill  had  been  taken  as  confessed.  Upon 
such  an  appeal  the  decree  may  be  reversed  for  a  defect  in  the 
service  of  the  subpoena;49  for  failure  to  appoint  a  guardian  ad 
litem,  when  required;50  it  seems  for  a  want  of  indispensable 
parties,51  and  for  a  failure  to  set  aside  the  decree  upon  a  proper 
application.52  The  only  question  for  the  consideration  of  the 
court  is  whether  the  allegations  in  the  bill  are  sufficient  to  sup- 
port the  decree.53  It  seems  that  the  objection  that  the  com- 
plainant had  an  adequate  remedy  at  law  rests  in  the  discretion 
of  the  court  of  first  instance,  and  that  it  cannot  be  waived  in 
the  appellate  court  by  a  defendant  who  is  in  default.54  Where 
the  deefndant  had  not  moved  until  nine  months  after  the  ap- 
pointment of  a  receiver,  and  meanwhile  the  bill  had  been  taken 
as  confessed,  it  was  held  to  be  too  late  to  take  this  objection.55 

«  Frow  v.  De  La  Vega,  15  Wall.  53  Masterson  v.  Howard,  18  Wall. 

552,   51   L.   ed.   60;    Butterworth   v.  99,  21  L.  ed.  764;  Ohio  C.  R.  Co.  v. 

Hill,   114  U.  S.  128,  29  L.  ed.  119.  Central  Tr.  Co.,  133  U.  S.  83,  33  L. 

*>0'Hara    v.    MacConnell,    93    U.  ed.  561. 

S.  150,  23  L.  ed.  840;   Butterworth  54  Brown    v.    Lake    Superior    Iron 

v.  Hill,  114  U.  S.  128,  29  L.  ed.  119.  Co.,  134  U.  S.  530,  33  L.  ed.    1021; 

50  O'Hara    v.    MacConnell,    93    U.  Western  Elec.  Co.  v.  Reedy,  66  Fed. 
S.  150,  23  L.  ed.  840.  163. 

51  Ibid.  55  Brown    v.   Lake    Superior    Iron 

52  American  F.  L.  M.  Co.  v.  Thorn-  Co.,  134  U.  S.  530,  33  L.  ed.  1021. 
as,  C.  C.  A.,  71  Fed.  782;  Nelson  v. 

Eaton,  C.  C.  A.,  06  Fed.  376. 


CHAPTER  IX. 

ANSWERS. 

§  173.  Answers  in  general.  "It  shall  be  the  duty  of  the  de- 
fendant, unless  the  time  shall  be  enlarged,  for  cause  shown,  by 
a  judge  of  the  court,  to  file  his  answer  or  other  defense  to  the 
bill  in  the  clerk's  office  within  the  time  named  in  the  subpoena 
as  required  by  rule  12.  In  default  thereof  the  plaintiff  may, 
at  his  election,  take  an  order  as  of  course  that  the  bill  be  taken 
pro  confesso;  and  thereupon  the  cause  shall  be  proceeded  in 
ex  parte."  1  "Demurrers  and  pleas  are  abolished.  Every  de- 
fense in  point  of  law  arising  upon  the  face  of  the  bill,  whether 
for  misjoinder,  nonjoinder,  or  insufficiency  of  fact  to  constitute 
a  valid  cause  of  action  in  equity,  which  might  heretofore  have 
been  made  by  demurrer  or  plea,  shall  be  made  by  motion  to  dis- 
miss or  in  the  answer ;  and  every  such  point  of  law  going  to  the 
whole  or  a  material  part  of  the  cause  or  causes  of  action  stated 
in  the  bill  may  be  called  up  and  disposed  of  before  final  hear- 
ing at  the  discretion  of  the  court.  Every  defense  heretofore 
presentable  by  plea  in  bar  or  abatement  shall  be  made  in  the 
answer  and  may  be  separately  heard  and  disposed  of  before 
the  trial  of  the  principal  case  in  the  discretion  of  the  court.  If 
the  defendant  move  to  dismiss  the  bill  or  any  part  thereof,  the 
motion  may  be  set  down  for  hearing  by  either  party  upon  five 
days'  notice,  and,  if  it  be  denied,  answer  shall  be  filed  within 
five  days  thereafter  or  a  decree  pro^  confesso  entered."2  "The 
defendant  in  his  answer  shall  in  short  and  simple  terms  set 
out  his  defense  to  each  claim  asserted  bv  the  bill,  omitting  any 
mere  statement  of  evidence  and  avoiding  any  general  denial  of 
the  averments  of  the  bill,  but  specifically  admitting  or  denying 
or  explaining  the  facts  upon  which  the  plaintiff  relies,  unless 
the  defendant  is  without  knowledge,  in  which  case  he  shall  so 
state,  such  statement  operating  as  a  denial.     Averments  other 

§  173.     lEq.  Rule  16.  2  Eq.   Rule   29. 

623 


.  624  ANSWERS.  [§   174 

than  of  value  or  amount  of  damage,  if  not  denied,  shall  be 
deemed  confessed,  except  as  against  an  infant,  lunatic,  or  other 
person  non  compos  and  not  under  guardianship,  but  the  answer 
may  be  amended,  by  leave  of  the  court  or  judge,  upon  reasonable 
notice,  so  as  to  put  any  averment  in  issue,  when  justice  re- 
quires it.  The  answer  may  state  as  many  defenses,  in  the  alter- 
native, regardless  of  consistency,  as  the  defendant  deems  es- 
sential to  his  defense.  The  answer  must  state,  in  short  and  sim- 
ple form  any  counter-claim  arising  out  of  the  transaction  which 
is  the  subject-matter  of  the  suit,  and  may,  without  cross-bill,  set 
out  any  set-off  or  counter-claim  against  the  plaintiff  which 
might  be  the  subject  of  an  independent  suit  in  equity  against 
him,  and  such  set-off  or  counter-claim,  so  set  up,  shall  have  the 
same  effect  as  a  cross-suit,  so  as  to  enable  the  court  to  pronounce 
a  final  judgment  in  the  same  suit  both  on  the  original  and 
cross-claims."3  "If  the  counter-claim  is  one  which  affects  the 
rights  of  other  defendants  they  or  their  solicitors  shall  be  served 
with  a  copy  of  the  same  within  ten  days  from  the  filing  thereof."  4 
An  answer  in  equity  serves  two  purposes :  the  setting  up  of  the 
defenses  to  the  suit  and  discovery.  It  may  now  pray  relief 
against  the  complainant 5  and  against  a  co-defendant.6  Former- 
ly this  could  not  ordinarily  be  done  without  the  filing  of  a 
cross-bill.7 

§  174.  Admissions  and  denials  and  discovery.  The 
Equity  Rules  now  provide  that  the  answer  must  specifically 
admit,  deny,  or  explain  the  facts  upon  which  the  plaintiff  re- 
lies, unless  the  defendant  is  without  knowledge,  in  which  case 
he  shall  so  state,  such  statement  operating  as  a  denial.1  The 
rules  are  silent  as  to  whether  an  answer  under  oath  to  the  bill 
is  required,  although  they  make  a  provision  for  answers  under 
oath  to  interrogatories  filecl  after  issue  is  joined.2  They  are 
also  silent  as  to  whether  the  complainant  may  waive  an  answer 
under  oath  and  as  to  the  effect  of  an  answer  under  oath  as 
evidence.     The  Equity  Rules  of  1842,  which  seem  in  this  re- 

SEq.  Rule  30.  44G,  6  L.  ed.  516;  Veach  v.  Rice,  131 

4Eq.  Rule  31.  U.    S.    293,    33    L.    ed.    163.      Infra, 

5Eq.  Rule  30.  §  197. 

6Eq.  Rule  31.  §  174.     lEq.   Rule  30. 

7  Carnochan  v.  Christie,  H  Wheat.  2  Eq.  Rule  58. 


174] 


TRAVERSE    BY    ANSWER. 


625 


spect  to  follow  the  former  practice  in  chancery,3  provided :  "If 
the  complainant,  in  his  bill,  shall  waive  an  answer  under  oath, 
or  shall  only  require  an  answer  under  oath  with  regard  to  cer- 
tain specified  interrogatories,  the  answer  of  the  defendant, 
though  not  under  oath,  shall  not  be  evidence  in  his  favor,  unless 
the  cause  be  set  down  for  hearing  on  bill  and  answer  only ;  but 
may  nevertheless  be  used  as  an  affidavit  with  the  same  effect  as 
heretofore  upon  a  motion  to  grant  or  dissolve  an  injunction,  or 
on  any  other  incidental  motion  in  the  cause ;  but  this  shall  not 
prevent  a  defendant  from  becoming  a  witness  in  his  own  behalf 
under  section  3  of  the  act  of  Congress  of  July  2,  1804."  4  Con- 
sequently, under  those  rules,  an  answer  under  oath  was  usually 
waived  by  the  complainant.5  It  was  held  that,  where  an  an- 
swer under  oath  was  waived,  a  discovery  could  not  be  required,6 
and  that  defendant  then  could  not  be  required  to  answer  inter- 


3  See  Daniell's  Ch.  Pr.,  First  Am. 
Ed.,  846;  Curling  v.  Townshend,  19 
Vesey  628,  629;  Billingslea  v.  Gil- 
bert, 1  Bland  (Md.)  567;  Contee  v. 
Dawson,  2  Bland  (Md.)  264;  Ful- 
ton Bank  v.  Beach,  2  Paige,  (X. 
Y.)  307;  Story's  Eq.  PL,  §§  874, 
875a. 

*Eq.  Rule  41  of  1842  as  amended 
December,  1871.  The  statute  cited 
is  now  U.  S.  R.  S.,  §  858.  See  Wood- 
ruff v.  Dubuque  &  S.  C.  R.  Co.,  30 
Fed.  91. 

6  See  Slessinger  v.  Buckingham, 
17   Fed.  454,  456. 

6Tillinghast  v.  Chace,  121  Fed. 
435;  McFarland  v.  State  Sav.  Bank, 
132  Fed.  399;  Victor  G  Bloede  Co. 
of  Baltimore  City  v.  Carter,  148 
Fed.  127;  Gorham  Mfg.  Co.  v.  Wein- 
traub,  1.80  Fed.  639.  See  also  Har- 
rington v.  Harrington,  15  R.  I.  341, 
5  Atl.  502;  McCulla  v.  Beadleston, 
17  R.  I.  20,  26,  20  Atl.  11;  Stark- 
weather v.  Williams,  21  R.  I.  55,  41 
Atl.  1003;  Ward  v.  Peck,  114  Mass. 
121;  Badger  v.  McXamara,  123 
Mass.  117,  120;  McCormick  v.  Cham- 
Fed.  Prac.  Vol.  I.— 40. 


berlain,  11  Paige  (X.  Y.)  543;  U.  S. 
v.  McLaughlin  (C.  C.)  24  Fed.  823; 
Sheppard  v.  Akers,  1  Tenn.  Ch.  326; 
Goodwin  v.  Bishop,  145  111.  421,  34 
X.  E.  47 ;  Field  v.  Hastings  &  Brad- 
ley Co.,  65  Fed.  279;  Story's  Eq. 
Pldg.  §  875:  Daniell's  Ch.  Pr.  (3d. 
Am.  ed.)  799.  But  see  Johnston  v. 
Forsyth  Merc.  Co.,  127  Fed.  845, 
848;  John  Church  Co.  v.  Zimmer- 
man. 131  Fed.  652.  Contra.  Bates 
on  Equity  Federal  Procedure,  Vol.  I, 
§  355 ;  criticised  by  Brewer,  J.,  in 
Tillinghast  v.  Chace,  121  Fed.  435, 
436.  Citing  Kittredge  v.  Claremont 
Bank,  1  Woodb.  &  M.  244,  Fed.  Cas. 
Xo.  7,859:  Whittemore  v.  Patten,  81 
Fed.  527;  Xat'l  Hollow  Brake 
Beam  Co.  v.  Interchangeable  Brake 
Beam  Co.,  83  Fed.  26;  Uhlmann  v. 
Arnhold  &  Schaeffer  Brewing  Co.,  41 
Fed.  309;  Gamewell  Fire- Alarm  Tel. 
Co.  v.  Mayor.  (C.  C).  31  Fed.  312: 
Colgate  v.  Compagnie  Francaise,  23 
Fed.  82;  Reed  v.  Cumberland  Mut. 
Ins.  Co.,  36  X.  J.  Eq.  393:  Manley  v. 
Mickle,  55  X.  J.  Eq.  567,  37  Atl. 
738. 


62G 


ANSWERS. 


[§    1H 


rogatories  attached  to  the  bill.7  Where  no  such  waiver  was 
made,  the  former  rule  then  still  prevailed ;  and  the  sworn  state- 
ment by  the  defendant,  in  direct  response  to  an  allegation  in 
the  bill,  was  deemed  to  be  true,  unless  contradicted  by  two  wit- 
nesses or  a  single  witness  and  corroborating  circumstances.8 
Irresponsive  allegations  were  not  evidence,9  nor  was  the  court 
bound  by  the  construction  placed  in  the  answer  upon  facts  that 
were  therein  pleaded.10  Such  an  answer  was  not  evidence  of 
new  facts,  set  up  by  way  of  evidence  of  the  allegations  of  the 
bill.11  Xeither  were  allegations  upon  information  and  belief,12 
nor  allegations  sworn  to  positively,  concerning  facts  of  which  it 
was  evident  the  respondent  could  have  no  personal  knowledge.13 
The  admissions  of  the  defendant  are  binding  upon  him;  and 
unless  he  can  obtain  leave  to  amend  his  answers  by  withdrawing 
them,  he  cannot  disprove  them  at  the  hearing.14  The  defendant 
must  answer  every  allegation  in  the  bill  which  is  material  to 
the  plaintiff's  case,  and  an  answer  admitting  which  would  not 
expose  him  to  a  penalty,  forfeiture  or  criminal  prosecution,  or 
expose  a  privileged  communication.15  Under  the  chancery 
practice,  the  complainant  was  obliged  to  answer  specifically  and 
categorically,   distinguishing  between  matters  within  his  per- 


sonal knowledge  and  those  within  his  information  and  belief. 


16 


7  Independent  Baking  Powder  Co. 
v.  Boorman,  130  Fed.  726;  Victor 
G.  Bloede  Co.  v.  Carter.  148  Fed. 
127.  But  where  lie  undertook  to 
answer,  it  was  held,  that  he  must 
answer  fully.     Ibid. 

8  Clark's  Ex'rs  v.  Van  Reimsdyk. 
9  Cranch,  153,  160,  3  L.  ed.  <iss, 
090;  Union  Bank  of  Georgetown  v. 
Geary,  5  Pet.  99,  110.  8  L.  ed.  60, 
64:  Seitz  v.  Mitchell,  94  U.  S.  580, 
582,  24  L.  ed.  179,  ISO:  Vigel  v. 
Hopp.  104  U.  S.  441,  26  L.  ed.  765; 
Slessinger  v.  Buckingham.  17  Fed. 
454,  456;  Kennedy  v.  Custer,  C.  C. 
A.,  174  Fed.  972.  See  the  Respon- 
sive Answer  in  Equity,  considered 
as  Evidence  for  the  Defendant,  by  J. 
M.  Gest,  52  Am.  L.  Reg.  5. 

9  Pennsylvania  Co.  v.  Cole.  132 
Fed.  668. 


10  Northern  Pac.  Ry.  Co.  v.  Boyd, 
C.  C.  A..  177  Fed.  804. 

11  Sargent  v.  Earned.  2  Curt.  340; 
Seitz  v.  Mitchell,  94  U.  S.  580,  24 
L.  ed.  179. 

12  Berry  v.  Sawyer,  19  Fed.  286; 
Allen  v.  O'Donald,  28  Fed.  17; 
Earle  v.  Art  L.  Pub.  Co.,  95  Fed. 
54. 

13  Clarks  Ex'rs  v.  Van  Riemsdyk, 
9  Cranch,  153.  161,  3  L.  ed.  688, 
690;   Allen  v.  O'Donald,  28  Fed.  17. 

14  Gold  &  S.  O.  S.  Co.  v.  U.  S. 
Dis.  O.  Co.,  6  Blatchf.  307,  310. 
See  Troy  I.  &  N.  Factory  v.  Corn- 
ing. 6  Blatchf.  328,  336. 

is  Atwill  v.  Ferrett,  2  Blatchf.  39, 
infra,  §§  348.  349. 

16  Brooks  v.  Byam,  1  Story,  296; 
Kittredge  v.  Claremont  Bank,  3 
Storv,   596;    s.  c,   1   \Y.  &   M.   244; 


174] 


TRAVERSE    BY    ANSWER. 


627 


He  had  then  to  answer  not  only  as  to  all  facts  within  his 
knowledge,  but  as  to  all  which  he  could  ascertain  from  an  in- 
spection of  books  and  papers  in  his  possession  or  under  his  con- 
trol.17 He  was  also  required  to  give  a  full  answer  concerning 
any  information  that  he  could  obtain  upon  the  subject  from  per- 
sons in  his  employ."  If  he  asserted  ignorance  as  to  any  mat- 
ter, he  was  required  to  aver  that  he  was  ignorant  both  of  his 
own  knowledge  and  as  to  information  and  belief.19  But  if 
he  denied  knowledge  and  information  he  was  not  required  to 
state  his  belief.20  He  could  not  deny  that  he  had  knowledge 
as  to  a  subject  which  the  bill  charged  as  a  personal  transaction 
in  which  he  took  part.21  This  last  rule,  it  has  been  said  ap- 
plies, as  well  as  the  others  to  officers  of  corporations.22  If  new 
officers  have  succeeded  those  in  office  at  the  time  when  the  mat- 
ters charged  are  said  to  have  occurred,  it  is  their  duty,  when 
called  upon  for  discovery,  to  ascertain  the  facts  by  searching  the 
records  of  the  corporation  and  by  inquiry  of  their  predeces- 
sors.23 It  has  been  said  that  "a  corporate  answer  should  be 
made  by  the  principal  officer  of  the  corporation^  who  should  be 
able  to  admit  or  deny  the  facts  charged  and  interrogated  about, 


Victor  G.  Bloede  Co.  v.  Carter,  14S 
Fed.  127.  It  has  been  said  that 
the  defendant  must  answer  not 
only  as  to  all  facts  within  his 
knowledge,  but  to  all  which  he  can 
ascertain  from  an  inspection  of 
books  and  papers  in  his  possession 
or  under  his  control.  Davis  v. 
Mapes,  2  Paige   (N.  Y.)    105. 

17  Davis  v.  Mapes,  2  Paige  (N. 
Y.)   105. 

18  Rasbotham  v.  Shropshire  Union 
Ry.  Co.,  24  Ch.  D.   110. 

19  Odger's  Pleading,  4th  ed.  p.  271. 
See  infra,  §  348.  It  has  been  held 
that  it  is  insufficient  to  deny  fraud 
charged  to  have  been  committed  by 
an  agent  upon  the  information  of 
the  agent  and  the  belief  of  the  prin- 
cipal. Mason  v.  Jones,  J  Ilayw.  & 
H.  329;  s.  c,  Fed.  Cas.  No.  0,240. 
Brooks  v.  Byam,  1  Story,  296;  Kit- 
tredffe  v.   Claremont  Bank.   1    W.  & 


M.  244.  It  has  been  held  that  when 
the  bill  asks  for  testimony  concern- 
ing his  recollection  he  must  give  it 
accordingly.  Brooks  v.  Byam,  1 
Story,  29G. 

20  Victor  G.  Bloede  Co.  v.  Car- 
ter. 148  Fed.  127. 

21  Burpee  v.  First  Nat.  Bank,  5 
Biss.  405.  In  extraordinary  cases, 
answers  as  to  the  defendants'  re- 
membrance have  been  allowed,  even 
when  there  was  no  request  for  the 
remembrance  upon  the  subject.  Hall 
v.  Bodily,  1  Vernon,  470;  Carey  v. 
Jones,  8  Ga.  51G;  Hall  v.  Wood,  1 
Paige  (N.  Y.),  404;  Story's  Eq.  PL, 
§  855.  But  see  Talbot  v.  Sebree'.s 
Heirs,   31   Ky.  56. 

22  Burpee  v.  First  Nat.  Bank,  5 
Biss.  405;  Kittredge  v.  Claremont 
Bank,  1  W.  &   M.  244. 

23  Kittredge  v.  Claremont  Bank, 
1  W.  &  M.  244. 


G28 


ANSWERS. 


[§  174 


or  to  state  want  of  knowledge  clearly  and  truly  as  a  reason  for 
not  doing  it."  2*  Where  one  or  all  of  the  officers  of  the  corpora- 
tion could  not  answer  without  self-incrimination,  it  was  held 
that  it  was  the  duty  of  the  coorporation  to  select  or  provide  an 
officer  who  would  not  be  incriminated.25  It  is  insufficient  to 
deny  anv  "recollection  or  belief"  as  to  a  transaction  in  which 
the  defendant  is  said  to  have  been  personally  engaged.  '"The 
defendant  in  his  answer  must  state  the  facts  as  they  then  are."  27 
But  where  a  bill  charged  that  the  defendant  would  in  future 
infringe  a  patent  as  he  was  charged  to  have  done  before,  it 
was  held  insufficient  for  him  to  deny  merely  that  he  had  done 
so  since  the  trial  of  an  action  at  law  which  established  the  com- 
plainant's rights.28  He  should  also  answer  as  to  his  future  in- 
tentions.29 The  Equity  Rules  of  1912  merely  provide  that  the 
defendant  shall  answer  concerning  his  knowledge,  and  that 
when  he  is  without  knowledge  he  shall  so  state,  such  statement 
operating  as  a  denial.30  A  denial  of  two  allegations  conjunc- 
tively is  not  a  denial  of  each.31  An  admission  in  the  disjunctive 
is  binding.32  The  statement  that  the  respondent  believes  an  al- 
legation to  be'  true  is  equivalent  to  an  admission ; 33  but  the 
statement  that  he  has  no  knowledge  upon  the  subject  seems  to  be 
equivalent  to  a  denial,34  although,  if  full  discovery  be  required. 
it  is  subject  to  exception  for  insufficiency.35     The  denial 36  and 


24  Wheeler,  J.,  in  Hale  v.  Con- 
tinental L.  Ins.  Co.,  16  Fed.  718, 
719. 

25  Simon  v.  Am.  Tobacco  Co.,  192 
Fed.  662. 

26  Taylor  v.  Luther,  2  Sumner, 
228. 

27  Sir  Thomas  Plumer,  V.  C,  in 
Knight  v.  Matthews,  1  Madd.  500. 

28  Poppenhusen  v.  X.  Y.  G.  P.  C. 
Co..  4  Blatchf.  185;  s.  c,  2  Fish.  74. 

29  Poppenhusen  v.  X.  Y.  G.  P.  C. 
Co.,  4  Blatchf.  185;  s.  c,  2  Fish. 
74. 

30  Eq.  Rule  30. 

31  Pierson  v.  Ryerson,  5  X.  J.  Eq. 
196. 

32  Adams  Exp.  Co.  v.  Adams,  C. 
C.  A.,  159  Fed.  02. 

33  There  the  plaintiff  alleged  that 


the  defendant  was  a  corporation  or- 
ganized under  the  laws  of  the  State 
of  Xew  York,  and  the  defendant,  in 
its  petition  for  removal  and  answer, 
alleged  that  it  was  "a  corporation 
or  joint  stock  company  organized 
and  existing  under  and  by  virtue  of 
the  laws  of  Xew  York." 

34  Brown  v.  Pierce,  7  Wall.  205, 
212,  19  L.  ed.  134,  136;  Brooks  v. 
Byam,   1   Story,  296. 

35  Kittredge  v.  Claremont  Bank, 
1   W.  &  M.  244. 

36  Union  M.  Ins.  Co.  v.  Commer- 
cial M.  M.  Ins.  Co.,  2  Curt.  524; 
s.  c.  on  appeal,  as  Commercial  M. 
M.  Ins.  Co.  v.  Union  M.  Ins.  Co., 
19  How.  318,  319,  15  L.  ed.  636,  637. 
Thus,  when  the  bill  alleged  that  the 
defendant  executed  and  delivered  a 


174] 


TRAVERSE   BY    ANSWER. 


G29 


the  averment 37  of  a  conclusion  of  law,  have  no  effect.  A  few 
of  the  earlier  cases  hold  that  a  general  traverse  of  the  allega- 
tions concerning  the  citizenship  and  residence  of  the  respective 
parties,  do  not  raise  an  issue.38  An  averment  that  land  which 
is  the  subject  of  the  suit  was  at  the  time  of  its  commencement 
unoccupied  is  not  denied  by  an  affirmative  allegation  in  the 
answer  that  defendants  "are  now  in  the  quiet  and  peaceable  pos- 
session" of  the  same.39  In  a  suit  in  equity,  submitted  on  bill 
and  answer,  the  complainant's  title  to  real  estate  was  deemed 
to  be  admitted  by  an  answer  in  which  the  defendant  pleaded  an 
adverse  claim  of  title,  deraigned  from  a  void  judicial  decree  in 
a  proceeding  against  the  complainant  to  foreclose  a  lien  for 
taxes,  notwithstanding  a  denial  of  the  complainant's  title  in 
the  same  answer.40    In  drawing  such  an  answer,  it  is  usual  and 


deed,  a  denial  by  the  defendant  of 
its  delivery,  accompanied  by  an  ad- 
mission that  he  made  the  deed  and 
placed  it  upon  record,  is  equivalent 
to  an  admission  of  its  delivery. 
Adams  v.  Adams,  21  Wall.  J  85,  22 
L.  ed.  504.  An  admission  that  a 
deed  bears  a  certain  date  does  not 
estop  the  respondent  from  showing 
that  it  was  fraudulently  antedated. 
Holbrook  v.  Worcester  Bank,  2  Curt. 
244. 

37Klank  v.  Byrne,  143  Fed.  1008, 
1011. 

38  Hill  v.  Walker,  C.  C.  A.,  167 
Fed.  24]  ;  Bettes  v.  Brower,  184  Fed. 
342.     See  supra,  §  40,  infra,  §  454. 

39Klenk  v.  Byrne,  143  Fed.  1008. 
Where  the  holder  of  a  tax  title  sued 
out  a  writ  of  possession  from,  a 
state  court,  and,  in  a  suit  to  set 
aside  his  deed  as  a  cloud  on  title, 
filed  a  cross-bill  praying  possession, 
held  that  he  thereby  confessed  that 
the  possession  was  in  complainant. 
Collier  v.  Goessling,  C.  C.  A.,  160 
Fed.  604.  Complainant  in  a  suit  to 
quiet  title  alleged  the  recovery  of 
judgment    in    ejectment   against   de- 


fendant, and  that  plaintiff  had  been 
put  in  possession  by  the  marshal  on 
execution  of  a  writ  of  possession. 
Defendant  answered,  denying  that 
the  marshall  had  executed  the  writ, 
and  tiled  a  cross-bill  alleging  pos- 
session since  1899,  as  also  of  a  20- 
acre  tract  south  -and  adjoining  the 
land  in  controversy;  that  the  mar- 
shal, in  executing  the  writ  of  posses- 
sion, removed  defendant  from  such 
south  20-acre  tract,  and  placed 
plaintiff's  agent  in  possession  thereof 
afterwards  tiling  a  return  that 
he  had  executed  the  writ  by  placing 
plaintiff's  agent  in  possession  of 
the  land  in  controversy,  but  the 
cross-bill  did  not  allege  that  the 
marshal  did  not  in  fact  place  plain- 
tiff in  possession  of  the  land  in  con- 
troversy, nor  was  there  any  aver- 
ment that  defendant  had  paid  taxes 
on  such  land.  Held,  that  the  cross- 
bill was  demurrable  for  failure  to 
show  that  the  writ  of  possession  was 
not  eexcuted  according  to  its  return. 
Center  v.  Cady,  C.  C.  A.,  184  Fed. 
605. 

40Rlenk  v.  Byrne,  143  Fed.  1008. 


630 


ANSWERS. 


[§   1<5 


often  advantageous  to  interweave  the  discovery  with  a  narra- 
tive of  the  transactions  from  the  defendant's  point  of  view  in 
a  continuous  statement,  so  that  it  will  be  hard  for  the  plaintiff 
to  read  as  evidence  the"  defendant's  admissions  without  also 
reading  the  latter's  own  explanation  and  account  of  the  con- 
troversy.41 

§  175.  Pleading  defenses  in  answer.  Inconsistent  de- 
fenses may  now  be  pleaded.1  Matters  in  abatement,  such  as 
lis  pendens  and  objections  to  the  jurisdiction  of  the  court,  can 
now  be  set  up  by  answer.2  Formerly,  matters  in  abatement 
which  did  not  affect  the  jurisdiction  and  objections  to  the  char- 
acter of  the  parties  and  matters  of  form,  could  not  be  so  plead- 
ed.3 Facts  that  have  occurred  since  the  filing  of  the  bill  may  be 
so  pleaded  by  the  defendant.4  The  defenses  must  be  pleaded 
with  sufficient  certainty,  although  it  seems  that  the  same  degree 
of  certainty  is  not  required  in  an  answer  as  in  a  bill5  nor  as 


41  It  has  been  held  tliat  where  the 
original  answer  intermingles  objec- 
tionable and  irrelevant  matter  witli 
allegations  that  are  good,  so  that 
the  result  of  striking  out  what  is 
objectionable  would  be  to  leave  the 
remaining  parts  disjointed  and  not 
in  good  form,  an  entirely  new  ans- 
wer must  be  filed.  Dr.  Miles  Medi- 
cal Co.  v.  Snellenburg,  152  Fed.  663. 

§  175.  lEq.  Rule  30.  This  prac- 
tice was  first  authorized  by  the  New 
York  Code  of  Procedure,  written  by 
David  Dudley  Field.  Lord  Chan- 
cellor Loreburn  (Harv.  Law  Pvev., 
XXVL,  p.  101):  "A  litigant  may 
state  in  his  defense  what  facts  he 
relies  upon,  and  at  the  same  time 
may  state  that  he  contends  that  ev- 
en if  the  facts  be  as  alleged  by  the 
plaintiff,  yet  they  furnish  no  cause 
of  action.  That  is  in  effect  a  de- 
murrer. There  is  no  doubt  that  this 
practice  is  beneficial.  It  may  be 
convenient  that  the  question  of  law 
decided  by  the  demurrer  should  be 
decided  first,  and  if  decided  in  favor 
of  the  defendant  it  will  end  the  case, 


unless  the  plaintiff  is  allowed  to 
amend  and  raise  a  fresh  contention. 
1i  may  be,  and  generally  is,  conven- 
ient first,  to  ascertain  all  the  facts 
at  a  trial,  and  then  to  apply  the  law 
or  equity,  as  the  case  may  be.  Which 
course  is  to  be  taken  is  usually 
agreed  to  by  the  parties,  but,  if  not 
agreed,  the  judge  can  direct  what 
is  to  be  done.  We  find  it  very  use- 
ful to  have  as  much  elasticity  as 
possible  in  these  things,  and  I  am 
sure  no  one  doubts  that  all  relevant 
contentions  both  of  fact  and  law 
ought  to  be  stated  in  the  pleadings. 
An  answer  to  a  bill  in  equity  may 
plead  a  former  judgment  in  bar  in 
connection  with  matters  of  defense 
to' the  merits.  Mound  City  Co.  v. 
Castleman,  171  Fed.  520. 

2Eq.  Rule  2ft. 

3Eq.  Rule  39.  of  1842;  Pierce  v. 
Feagans,  39  Fed.  587. 

4  Earl  of  Leicester  v.  Perry,  1 
Brown  Ch.  C.  305;  Turner  v.  Rob- 
inson.  1    Sim.  &  S.  3. 

SDaniells  Ch.  Pr.  (5th  Am.  ed.) 
714. 


176] 


DEFENSES    IN    ANSWER. 


G31 


formerly,  in  a  plea.6  The  general  rule  is  that  no  affirmative 
defense  can  be  proved  unless  it  has  been  set  up  in  the  answer,7 
but  the  failure  of  the  opposite  party  to  make  this  a  ground  of 
objection  to  the  introduction  of  evidence  in  support  of  such 
omitted  defense  waives  the  defect.8  Estoppel  is  such  an  affirm- 
ative defense.9  But  it  has  been  held:  that  when  the  fact  ap- 
pears, that  the  complainant  has  come  into  court  with  unclean 
hands  because  of  fraudulent  misrepresentations  to  the  public 
concerning  the  subject-matter  of  the  suit,  his  bill  will  be  dis- 
missed, although  the  defense  is  not  pleaded.10  It  has  been 
said :  that,  if  a  defendant  states,  in  his  answer  certain  facts  as 
evidence  of  a  particular  case,  which  he  represents  to  be  the  con- 
sequence of  those  facts,  and  upon  which  he  rests  his  defense,  he 
is  not  permitted  afterwards  to  make  use  of  the  same  facts,  for 
the  purpose  of  establishing  a  different  defense  from  that  to 
which  by  his  answer  he  has  drawn  the  plaintiff's  attention.11 
Thus  it  has  been  said  that  where  fraud  is  set  up  in  the  answer 
''the  party  making  the  charge,  if  it  is  denied  in  a  proper  plead- 
imr,  will  be  confined  to  that  issue."  12 

§  176.  Defenses  in  answer.  In  general.  The  defenses 
which  were  formerly  usually  or  always  included  in  pleas  may 
now  be  set  up  by  answer.  Pleas  have  been  abolished,  and  with 
them  a  vast  amount  of  learning  has  been  rendered  obsolete.1 


6  Maury  v.  Mason,  8  Porter  (Ala.) 
213,  228. 

7  Stanley  v.  Robinson,  1  Russ.  8c 
M.  527;  Cummings  v.  Coleman,  7 
Rich.  (S.  C.)  Eq.  509,  520,  62  Am. 
Dec.  402;  Burnham  v.  Balling,  3  C. 
E.  Green  (18  N.  J.  Eq.)  132;  Ban- 
iell's  Ch.  Pr.  (5th  Am.  ed.)  712; 
Black  v.  Thorne,  10  Blatchf.  66,  84; 
Sperry  v.  Erie  Ry.  Co.,  6  Blatchf. 
425. 

8  Lusk  v.  Bush,  C.  C.  A.,  199  Fed. 
369. 

9  Pennsylvania  Co.  v.  Cole,  132 
Fed.  668.  But  see  Curtain  Supply 
Co.  v.  Xat.  Lock  Washer  Co.,  174 
Fed.  45:    cited  infra,   §   145. 

10  Memphis  Keeley  Institute  v. 
Leslie  E.  Keeley  Co..  C.  C.  A.,  16 
L.R.A.(X.S.)    921.   155  Fed.  964. 


ULangdell's  Eq.  PL,  §  79;  Ben- 
nett v.  Xeale,  Wightvvick,  324. 

12  French  v.  Shoemaker,  14  Wall. 
314.  335,  20  L.  ed.  852,  857.  See 
§  70. 

§  176.  1A  plea  was  a  pleading 
which  set  up  some  reason  not  appar- 
ent upon  the  face  of  the  bill  why  the 
defendant  should  not  be  obliged  to 
answer  the  whole  or  a  part  thereof. 
Lord  Redesdale  defines  a  plea  as  "a 
special  answer  to  a  bill,  differing 
in  this  from  an  answer  in  the  com- 
mon form,  as  it  demanded  the  judg- 
ment of  the  court,  in  the  first  in- 
stance, whether  the  special  matter 
urged  by  it  did  not  debar  the  plain- 
tiff from  his  title  to  that  answer 
which  the  bill  required."  Roche  v. 
Morgell,  2  Sch.  &  Lef.  721.  725.     A 


(\:)2 


ANSWERS. 


[§  176 


Defenses,  which  formerly  might  be  set  up  by  plea  and  can  now 
be  included  in  an  answer,  are  either  defenses  in  abatement  or 


plea  might  be  to  the  whole  or  to  a 
part  of  the  bill.  Usually  but  a  sin- 
gle ground  of  defense  could  be  pre- 
sented by  a  plea,  which,  though  it 
might  state  more  than  one  fact, 
must  bring  the  matters  in  issue  to  a 
single  point.  Whitbread  v.  Brock- 
hurst,  1  Brown,  Ch.  C.  404,  410, 
note  9;  s.  c,  2  Yes.  &  Bea.  154, 
note;  Watkins  v.  Stone,  2  Sim.  49; 
Rhode  Island  v.  Massachusetts,  14 
Pet.  210,  259,  10  L.  ed.  42.3,  446; 
Storys  Eq.  PL,  §  654.  See  Rhino  v. 
Emery,  79  Fed.  483.  Otherwise,  it 
was  opened  to  the  charge  of  duplic- 
ity and  multifariousness,  and  would 
be  overruled.  Rhode  Island  v.  Mass- 
achusetts, 14  Pet.  210,  259,  10  L. 
ed.  423,  446.  Gaines  v.  Mausseaux, 
1  Woods,  118;  Whitbread  v.  Brock- 
hurst,  1  Brown,  Ch.  C.  404,  410, 
note  9;  s.  c,  2  Ves  &  Bea.  154,  note; 
London  v.  Liverpool,  3  Anst.  738 ; 
Watkins  v.  Stone,  2  Simons,  49; 
Saltus  v.  Tobias,  7  J.  Ch.  (N.  Y.) 
214;  Giant  Powder  Co.  v.  Safety 
N.  P.  Co.,  19  Fed.  509 ;  M'Closkey  v. 
Lair,  38  Fed.  165;  Story's  Eq.  PL, 
§§  053-655.  But  see  Reissner  v. 
Anncss,  12  Off.  Gaz.  842;  s.  c,  3 
Bann  &  A.  Pat.  Cas.  148;  MacVeagh 
v.  Denver  C.  W.  W.  Co.,  85  Fed.  74 ; 
Societe  Fabriques  v.  Lueders,  105 
Fed.  632 ;  Hazard  v.  Durant,  25  Fed. 
26;  Fayerweather  v.  Hamilton  Col- 
lege, 103  Fed.  540.  If  a  bill  con- 
tained different  prayers  for  relief 
based  upon  different  grounds,  the 
defendant  might  file  a  plea  to  each 
part  of  the  relief.  Emmott  v.  Mit- 
chell, 14  Sim.  432.  And  in  other 
cases,  where  great  inconvenience 
could  thus  he  saved,  the  court  might 
upon  motion,  after  notice  to  the 
complainant's  solicitor,  give  special 


leave  to  file  a  double  plea.  Gibson  v. 
Whitehead,  4  Madd.  241;  Kay  v. 
Marshall,  1  Keen,  190,  192.  But  see 
Reissner  v.  Anness,  12  Off.  Gaz.  S42 ; 
s.  c,  3  Bann.  &  A.  Pat.  Cas.  148; 
or  rather,  according  to  Professor 
Langdell,  two  separate  pleas,  each 
containing  a  single  defense,  Lang- 
dell's  Eq.  PI.,  §  98.  Pleas  were 
either  pure,  negative,  or  anomalous. 
A  pure  plea  sets  up  new  matter  as 
a  defense  which  was  not  apparent 
upon  the  face  of  the  bill,  McGloskey 
v.  Barr,  38  Fed.  105.  A  negative 
plea,  which  was  sometimes  also 
termed  an  anomalous  plea,  merely 
denied  certain  allegations  contained 
in  the  bill.  Story's  Eq.  PL,  §  051; 
Rhino  v.  Emery,  79  Fed.  483.  An 
anomalous  plea  sets  up  a  fact  in 
avoidance  of  the  bill,  but  one  which 
the  bill  had  anticipated  and  without 
confessing  replied  to,  Langdell's  Eq. 
PL,  §  102;  Story's  Eq.  PL,  §  651; 
McDonald  v.  Salem  C.  F.  M.  Co.,  31 
Fed.  577;  McCloskey  v.  Barr,  38 
Fed.  165;  Hilton  v.  Guyott,  42  Fed. 
249.  But  see  Milligan  v.  Milledge, 
3  Cranch,  220,  2  L.  ed.  417.  The 
main  object  of  filing  a  plea  was  to 
avoid  discovery,  and  in  their  draft- 
ing and  defense  much  learning  and 
subtlety  was  employed.  Those  in- 
terested in  stating  their  history  and 
refinement  are  referred  to  Beanies 
on  Pleas,  Wigram  on  Discovery,  and 
Langdell  on  Equity  Pleading,  where 
they  will  find  the  subject  discussed 
at  length  with  full  references  to  the 
cases.  The}'  were  abolished  in  Eng- 
land by  the  Judicature  Act  of  1873, 
but  they  endured  in  the  Federal 
courts  until  the  end  of  the  year 
1912  and  are  still  used  in  the  courts 
of  a  few  of  the  States.     It  was  as 


176] 


DEFENSES    IN    ANSWER. 


63.°, 


defenses  in  bar  to  the  suit.  Objections  in  abatement  include 
among  them,  objections  to  the  jurisdiction,  objections  to  the 
person  and  objections  to  the  bill.2  Objections  to  the  jurisdic- 
tion are:  (1)  That  the  subject  of  the  suit  is  not  within  the 
jurisdiction  of  a  court  of  equity;3  (2)  that  some  other  court  of 
equity  has  the  proper  jurisdiction;4  (3)  that  the  defendant  has 
not  been  properly  served  with  process.5  Objections  to  the  per- 
son are:  (1)  That  the  plaintiff  has  not  the  legal  capacity  to 
sue ;  either  at  all  if  an  alien  enemy,6  or  alone  if  an  infant,7  or 
without  leave  from  the  court  if  a  receiver.8  (2)  That  the 
plaintiff  is  not  the  person  whom  he  pretends  to  be,  or  does  not 
sustain  the  character  which  he  assumes;  as,  for  example,  that 
he  is  not  executor,9  or  not  assignee,10  or  not  a  corporation,11 
when  suing  as  such ;  or  that  the  suit  is  brought  in  the  name  of  a 
fictitious  person ; 12  or  that  it  is  brought  in  the  name  of  a  person 
who  sues  for  the  benefit  of  another,  through  collusion  or  cham- 
perty;13 or,  it  seems,  in  a  stockholder's  suit  founded  upon  a 
right  which  may  properly  be  asserted  by  the  corporation,  that 


true  when  they  were  abolished  as 
in  the  time  of  Beames,  that  the  sub- 
ject of  pleas  in  equity  is  one  "con- 
cerning which  so  much  still  remains 
to  be  elucidated,  that  it  may  be  said 
of  them,  maxima  pars  corum  quae 
scimus  est  minima  eorum  quae  ig- 
noramus," Beames  on  Pleas,  61. 
See  Am.  Sulphite  Pulp  Co.  v.  Bay- 
less  Pulp  &  Paper  Co.,  163  Fed.  843, 
844. 

2  See  Beames  on  Pleas,  ch.  2; 
Story's  Eq.  PL.  §§  705-708;  Rule 
39;  Memphis  City  v.  Dean,  8  Wall. 
64.  19  L.  ed.  326. 

3  Story's  Eq.  PI.,  §§  710-713. 

4  Story's  Eq.  PI..  §§  714-716. 

5  Earned  v.  Griffin,  12  Fed.  590; 
Williams  v.  Empire  Tr.  Co.,  1  N. 
J.  L.  315. 

BAlbrech  v.  Sussman,  2  V.  &  B. 
323;  Story's  Eq-  PL,  §  724;  Mum- 
ford  v.  Mumford.  1  Gall.  366. 

7  Story's  Eq.  PL,  §  725.  But  see 
Dudgeon  v.  Watson,  23  Fed.  161. 


8  See  Newman  v.  Moody,  19  Fed. 
858. 

9  See  Rubber  Co.  v.  Goodyear,  9 
Wall.  788,  792,  19  L.  ed.  566,  567; 
Ord  v.  Huddleston,  2  Dick.  510; 
Story's  Eq.  PL,  §  727. 

10  Nicholas  v.  Murray,  5  Saw.  320. 

11  Dental  V.  Co.  v.  Wetherbee,  2 
Cliff,  555;  Blackburn  v.  Selma,  M. 
&  M.  R.  Co.,  2  Flip.  525;  Emerson 
Co.  v.  Nimocks,  88  Fed.  280.  A 
limited  partnership,  organized  un- 
der the  laws  of  Michigan,  was  al- 
lowed, in  the  Second  Circuit,  to  sue 
in  equity  in  its  copartnership  name, 
where  jurisdiction  did  not  depend 
Upon  the  citizenship.  Sanitas  Nut 
Food  Co.  v.  Force  Food  Co.,  124 
Fed-  302. 

12  Chapman  v.  School  Dist.  No.  1, 
Deady,  108,  116. 

13  Dinsmore  v.  Central  R.  Co.,  19 
Fed.  153.  But  see  S perry  v.  Erie 
Ry.  Co.,  6  Blatchf.  425. 


634 


ANSWERS. 


[§  1T6 


the  corporation  lias  not  refused  to  sue.14  It  was  held  that  the 
objection  that  the  plaintiff  was  a  lunatic  and  could  not  sue 
without  a  next  friend  could  not  be  taken  by  plea,  and  that  the 
proper  course  for  the  defendant  was  to  move  either  to  strike  the 
bill  off  the  file  on  account  of  the  complainant's  mental  inca- 
pacity, or  for  a  stay  of  the  proceedings  until  a  committee  or  next 
friend  was  appointed.15  (3)  That  the  defendant  cannot  be 
sued  except  upon  the  happening  of  some  event  which  has  riot 
occurred,  as  under  the  former  practice,  that  he  was  a  receiver, 
and  no  leave  to  sue  him  had  been  obtained  from  the  court  by 
which  he  was  appointed.16  (4)  That  the  defendant  is  not  the 
person  he  is  alleged  to  be,  or  does  not  sustain  the  character  which 
he  is  alleged  to  bear ; 17  or  that  the  person  named  as  a  defendant 
is  not  a  corporation  when  sued  as  such,  in  which  case  the  per- 
son served  with  process  on  its  behalf  may  file  the  answer  in 
his  own  name,18  or  was  not  incorporated  under  the  laws  of  the 
State  which  is  named  in  the  bill  as  its  creator ; 19  or  that  the  de- 
fendant has  become  a  bankrupt  or  insolvent,  and  his  interest 
in  the  subject-matter  has  passed  to  his  assignee.20  It  is  improp- 
er to  file  an  answer  in  the  name  of  a  defunct  corporation  by 
its  successor.21  It  was  held:  that  it  was  too  late  to  file  a  plea 
that  the  defendant  corporation  had  been  dissolved,  when,  after 
the  alleged  dissolution,  counsel  had  argued  on  its  behalf  in 
support  of  a  judgment  in  its  favor,  which  was  subsequently 
reversed.22  Objections  to  the  bill  are:  (1)  That  there  is  an- 
other suit  depending  in  a  domestic  court  of  equity  for  the 
same   matter.     (2 )     That  there   is   a  want   of   proper   parties. 


14  Newby  v.  Oregon  Cent.  Ry.  Co., 
]  Saw.  63,  67. 

15  Dudgeon  v.  Watson,  23  Fed. 
161. 

16  Barton  v.  Barbour,  104  U.  S. 
126.  20  L.  ed.  G72:  Jerome  v.  Me- 
Carter.  94  U.  S.  734.  737.  24  L.  ed. 
136,  137;  In  re  Young.  7  Fed.  855. 
But  sec  24  St.  at  L.,  eli.  373,  §  3; 
infra,  §  314. 

"Story's  Eq.  PL.  §§  732-734. 
is  Kelly   v.   Mississippi  C.  R.  Co., 
1   Fed.  564;   s.  c,  2   Flip.  581.     See 


also  Williams  v.  Empire  Tr.  Co.,  1 
X.  J.  L.  J.  315. 

19  Blackburn  v.  Selma,  M.  &  M. 
R.  Co.,  2  Flip.  525. 

20  Kittredge  v.  Claremont  Bank. 
3  Story,  590;  Story's  Eq.  PL.  §  732. 
See  also  Doggett  v.  Emerson,  1 
Woodb.  &  M.  196. 

21  Underwood  Typewriter  Co.  v. 
Fox  Typewriter  Co..  158  Fed.  476. 

22  L.  Bucki  &  Son  Lumber  Co.  v. 
Atlantic  Lumber  Co.,  C.  C.  A.,  128 
Fed.  332. 


§  177] 


PEXDEXCY  OF  ANOTHER  SUIT. 


63  i 


(3)  That  the  bill  will  cause  an  improper  multiplicity  of  suits. 

(4)  Multifariousness.23 

§  177.  The  pendency  of  another  suit.  A  defense,  that  an- 
other suit  in  equity  is  pending  for  the  same  cause  in  the  same 
court  is,  if  true,  a  sufficient  defense  to  a  bill.1  The  pendency  of 
an  action  at  law  for  the  same  matter  is  not,  however,  in  itself 
a  defense.2  For  the  very  fact  that  relief  cannot  be  had  at  law 
is  the  usual  ground  for  resorting  to  equity.  So  the  pendency 
of  an  action  at  law  upon  a  contract  was  held  to  be  no  bar  to  a 
subsequent  bill  in  equity  by  the  same  plaintiff  to  reform  it  so  as 
to  obviate  a  cross-action  on  the  contract  bv  the  defendant.3  If, 
however,  there  appeared  to  be  a  sufficient  reason  for  the  main- 
tenance of  both,  the  court  at  equity  might,  after  the  defendant 
has  answered,  put  the  plaintiff  to  his  election,  whether  he  will 
proceed  at  law  or  in  equity;  and  if  he  elects  the  latter,  then 
his  proceeding  at  law  will  be  enjoined ;  if  the  former,  his  bill 
will  be  dismissed.4  The  pendency  of  another  suit  in  a  court 
of  another  of  the  United  States,5  or  of  a  foreign  country,6  is  not 
a  bar  to  a  suit  for  the  same  relief  in  a  District  Court  of  the 


23  Story's  Eq.  PI.,  §§  735-748. 

§  177.  JMitford's  PI.,  ch.  2,  §  2, 
part  2;  Story's  Eq.  PI.,  §  736;  Ur- 
lin  v.  Hudson,  1  Vorn.  332;  Foster 
v.  Vassal),  3  Atfc.  587,  590;  Crofts 
v.  Wortley,  1  Ch.  Ca.  241;  Tarleton 
v.  Barnes,  2  Keen,  632,  635;  Insur- 
ance Co.  v.  Brune.  96  U.  S.  588.  592, 
593,  24  L.  ed.  73-7,  739.  740.  See 
also  Memphis  v.  Dean,  8  Wall.  64, 
19  L.  ed.  326.  The  pendency  of  a 
suit  to  enjoin  the  removal  of  ore 
from  a  mining  claim,  brought  in  as- 
sistance to  an  action  of  ejectment  to 
recover  possession  of  a  part  of  such 
claim,  is  not  a  bar  to  a  subsequent 
suit  by  the  same  complainant  to 
remove  a  cloud  on  its  title  to  the 
entire  claim,  which  includes  extra- 
lateral  rights  not  in  controversy  in 
the  former  suit.  Empire  State- 
fdaho  M.  &  D.  Co.  v.  Bunker  Hill 
&  S.  M.  &  C.  Co.,  C.  C.  A.,  121  Fed. 
073. 


2  Graham  v.  Meyer.  4  Blatchf. 
129;  Thorne  v.  Towanda  T.  Co.,  15 
Fed.  289,  292. 

3  Providence  S.  E.  Co.  v.  Hatha- 
way Mfg.  Co.,  79  Fed.  512. 

4  Story's  Eq.  PI.,  §  742;  Beames' 
Orders  in  Ch.,  11,  12;  Mitford's  PI., 
ch.  2,  §  2,  part  2;  Boyle  v.  Wynne,  1 
C.  &  Ph.  252;  Thorne  v.  Towanda 
T.  Co.,  15  Fed.  289,  292;  infra, 
§  368. 

5  Insurance  Co.  v.  Brune,  96  U. 
S.  588,  592,  593,  24  L.  ed.  737,  739. 
740;  Stanton  v.  Embrey,  93  U.  S. 
548,  23  L.  ed.  983;  O'Callaghan  v. 
O'Brien  116  Fed.  934;  Robinson  v. 
Suburban  Brick  Co.,  C.  C.  A,  127 
Fed.  804.  But  see  Dady  v.  Georgia 
&  A.  Ry.  Co.,  112  Fed.  838. 

6  Lord  Dillon  v.  Alvares,  4  Vesey, 
357;   Story's  Eq.  PI.,  §  747. 


.;;;•; 


ANSWERS. 


[§  1T7 


United  States,  at  least  when  the  object  is  not  to  obtain  the  pos- 
session of  property  in  the  custody  of  the  former  court.7  The 
pendency  of  a  similar  suit  in  a  court,  held  within  the  same  State 
and  district  where  the  Federal  court  is  held,  is -under  similar 
circumstances,  not  a  bar  to  a  suit  for  the  same  relief  in  a  Dist- 
rict Court  of  the  United  States ; 8  at  least  where  the  Federal 
jurisdiction  is  founded  upon  difference  of  citizenship.9  But 
it  is  usually  a  ground  for  a  stay  of  its  own  proceedings  by  the 
Federal  court,  where  the  action  in  the  State  court  was  first 
instituted,10  provided  that  the  parties  to  the  two  suits  are  the 


7Briggs  v.  Stroud,  58  Fed.  717, 
720;  Mankato  v.  Barber  Asphalt 
Paving  Co.,  C.  C.  A.,  142  Fed.  329. 
Supra,  §  57. 

8  Latham  v.  Chafee,  7  Fed.  520; 
White  v.  Whitman,  1  Curt.  494; 
Sharon  v.  Hill,  22  Fed.  28;  Wash- 
burn &  M.  Mfg.  Co.  v.  Scutt,  22 
Fed.  710;  Loring  v.  Marsh,  2  Cliff. 
322;  Cordon  v.  Gilfoil.  99  U.  S.  168, 
178,  25  L.  ed.  383,  38G;  Dwight  v. 
Cent.  Vt.  R.  Co.,  9  Fed.  785;  Cres- 
cent City  L.  S.  Co.  v.  Butchers'  U. 
L.  S.  Co.,  12  Fed.  225;  North  Mus- 
kegon v.  Clark,  C.  C.  A.,  62  Fed. 
694;  Marshall  v.  Otto,  59  Fed.  249; 
Rejall  v.  Greenhood,  60  Fed.  884: 
Short  v.  Hepburn,  75  Fed.  113; 
Shaw  v.  Lyman,  79  Fed.  2;  Brooks 
v.  Vermont  Cent.  B.  Co.,  14  Blatchf. 
463,  Fed.  Cas.  No.  1,964;  Beekman 
v.  Hudson  River  West  Shore  By. 
Co.,  35  Fed.  3;  Barber  Asphalt  Pav- 
ing Co.  v.  Morris,  C.  C.  A..  67 
L.R.A.  761,  132  Fed.  945;  Bulk  v. 
McCaffrey,  136  Fed.  696;  Mankato 
v.  Barber  Asphalt  Paving  Co.,  C.  C. 
A.,  142  Fed.  329:  Bamsdall  v.  Wal- 
temeyer,  C.  C.  A.,  142  Fed.  415; 
New  York  Cotton  Exch.  v.  Hunt, 
1  II  I'c.l.  511;  Weir  v.  Winnett,  155 
Fed.  824;  Borden's  Condensed  Milk 
Co.  v.  Baker,  177  Fed.  906.  Chica- 
go, B.  &  Q.  B.  Co.  v.  Weil.  183  Fed. 
956;    People's   Gaslight   &   Coke   Co. 


v.  City  of  Chicago,  192  Fed.  398; 
Ourlette  v.  Olds,  110  App.  Div.  (N. 
Y.)  596.  The  fact  that  a  counter- 
claim was  pleaded  in  the  State  court 
vvas  held:  to  make  no  difference  in 
this  respect.  Burk  v.  McCaffrey. 
136  Fed.  696.  But  see  Gamble  v. 
San  Diego,  79  Fed.  487,  and  supra, 
§  9.  Contra,  Radford  v.  Folsom,  14 
Fed.  97;  Brooks  v.  Mills  County.  4 
Dill.  524;  Lawrence  v.  Remington,  6 
Biss.  44;  Marks  v.  Marks,  75  Fed. 
321;  South  Penn  Oil  Co.  v.  Miller, 
C.  C.  A.,  175  Fed.  729.  See  Am. 
Confectionery  Co.  v.  North  British 
&  Mercantile  Ins.  Co.,  199  Fed.  195. 

9  See  D.  E.  Loewe  Co.  v.  Lawlor, 
130  Fed.  633;  holding  that  an  ac- 
tion, founded  upon  an  act  of  Con- 
gress, against  m«nopolies  of  Inter- 
state Commerce  was  not  affected  by 
a  previous  suit  in  the  State  court 
for  similar  relief. 

io  Foley  v.  Hartley,  72  Fed.  570; 
Zimmerman  v.  So  Relle,  C.  C.  A., 
80  Fed.  417:  Hughes  v.  Green,  C. 
C.  A.,  84  Fed.  833;  Green  v.  Under- 
wood, 86  Fed.  427.  See  Hughes  v. 
Green,  75  Fed.  093 ;  Benoist  v. 
Smith.  191  Fed.  514.  A  State  court 
refused  to  stay  foreclosure  proceed- 
ings pending  a  prior  suit  to  set 
aside  the  mortgage,  brought  by  a 
mortgagor  in  the  Federal  court  in 
the  same  district,  when  it  appeared 


177] 


PENDENCY    OF    ANOTHER    SUIT. 


G37 


same.11  The  effect  of  the  pendency  of  another  suit  for  the  same 
cause  in  another  court  of  the  United  States  has  never  been  ex- 
pressly decided.  In  such  a  case,  where  the  parties  are  the 
same,  the  court,  where  the  first  suit  was  brought,  might  enjoin 
the  prosecution  of  the  other  suit.13  This  might  also  be  done  if 
the  prior  suit  involved  an  adjudication  upon  the  validity  of  the 
right  to  use  a  machine  affected  by  the  second  suit ; 14  but  not 
merely  because  the  validity  of  the  plaintiff's  patent  is  attached 
in  another  suit  to  enjoin  the  use  of  a  different  machine.15 

A  defense  that  another  suit  is  pending,  in  which  the  com- 
plainant might  obtain  by  cross-bill  the  relief  now  sought  by  him, 
is  bad.16  A  defense  of  lis  pendens  should  set  forth  the  com- 
mencement of  the  former  suit,  its  general  nature,  character,  and 
objects,  whether  it  is  at  law  or  in  equity,  the  relief  prayed 
and  how  far  it  has  progressed ; 17  It  should  then  aver  specifical- 
ly that  the  second  suit  is  for  the  same  subject-matter  18  as  the 
first,  and  seeks  the  same  or  similar  relief;19  and  further,  that 
the  former  suit  is  still  pending.20  It  must  show  that  the  de- 
fendant was  served  or  has  appeared  in  the  former  suit.21  "For 
it  is  no  suit  depending  till  the  parties  have  appeared  or  been 
served  to  appear,  but  only  a  piece  of  parchment  thrown  into 
the  office,  which  may  lie  there  horever,  and  never  come  to  a 
suit/'22    "It  is  not  necessary  to  the  sufficiency  of  the  plea  that 


that  the  mortgagor  was  an  attorney 
in  the  State  courts,  who  founded 
his  suit  upon  a  technical  non-resi- 
dence, and  there  were  circumstances 
which  made  it  probable  that  the  ac- 
tion was  brought  to  hinder  and  de- 
lay the  mortgagee.  Curlette  v. 
Olds.  110  App.  Div.   (X.  Y.)   59(5. 

n  Ivirkpatrick  v.  Eastern  Milling 
A-  Export  Co.,  135  Fed.  144.  See 
Wheeler  v.  MeCormiek,  S  Blatchf. 
267;  Steiger  v.  Heidelberger,  4  Fed. 
455;  s.  c,  18  Blatchf.  42G;  Brooks 
V.  Mills  County,  4  Dill.  524,  527. 

13  Electric  Vehicle  Co.  v.  Barney, 
143   Fed.   551. 

14  Ibid. 

15  Ibid. 

16  Washburn  &  M.  Mfg.  Co.  v. 
Scutt,  22  Fed.  710. 


"Crescent  City  L.  S.  Co.  v. 
Butchers'  U.  L.  S.  Co.,  12  Fed.  225; 
Green  v.  Underwood,  C.  C.  A.,  86 
Fed.  427;  Foster  v.  Vassal.  3  Atk. 
589,  590;   Story's  Eq.  PL,  §  737. 

18  Devie  v.  Lord  Brownlow.  2 
Dick.  611;  Mitford's  PL,  oh.  2,  §  2, 
part  2;   Story's  Eq.  PL,  §  737. 

19  Behrens  v.  Sieveking.  2  Myl.  & 
Cr.  602;  Wheeler  v.  MeCormiek,  8 
Blatchf.  207;  Jenkins  v.  Eldredge, 
3  Story,  1  S3 ;  Story's  Eq.  PL,  §  737. 

20  The  Haytian  Republic,  57  Fed. 
50S,  512;  Story's  Eq.  PL,  §  737. 
See  I'rlin  v.  Hudson.  1  Vein.  332; 
Mitford's  PL,  ch.  2.  §  2,  part  2. 

21  Moor  v.  Welsh  C.  Co.,  1  Eq. 
Cas.  Abr.  39,  pi.  14. 

22  Ibid. 


038  ANSWERS.  [§    177 

the  fori  nor  suit  should  be  precisely  between  the  same  parties 
as  the  latter.  For  if  a  man  institutes  a  suit,  and  afterwards 
sells  part  of  the  property  in  question  to  another,  who  files  an 
original  bill  touching  the  part  so  purchased  by  him,  a  plea 
of  the  former  suit  depending  touching  the  whole  property  will 
hold.23  So  where  one  part-owner  of  a  ship  filed  a  bill  against 
the  husband  for  an  account,  and  afterwards  the  same  part- 
owner  and  the  rest  of  the  owners  filed  a  bill  for  the  same  pur- 
pose, the  pendency  of  the  first  suit  was  held  a  good  plea  to  the 
last;  24  for  though  the  first  bill  was  insufficient  for  want  of  par- 
ties, yet  by  the  second  bill  the  defendant  was  doubly  vexed  for 
the  same  cause.  The  course  which  the  court  has  taken  in  such 
case  has  been  to  dismiss  the  first  bill,  and  to  direct  the  defend- 
ant in  the  second  cause  to  answer  upon  being  paid  the  costs  of 
the  plea  allowed." 25  Where  a  former  suit  had  been  brought 
for  a  part,  but  not  the  whole,  of  the  relief  sought  in  the  case 
at  bar,  the  court  held  its  pendency  no  defense,  but  said  that 
proceedings  in  it  might  be  stayed  until  the  determination  of 
the  second  suit.26  "Where  a  second  bill  is  brought  by  the  same 
person  for  the  same  purpose,  but  in  a  different  right,  as  where 
the  executor  of  an  administrator  brought  a  bill  conceiving  him- 
self to  be  the  personal  representative  of  the  intestate,  and 
afterwards  procured  administration  de  bonis  non,  and  brought 
another  bill,  the  pendency  of  the  former  bill  is  not  a  good 
plea.27  The  reason  of  this  determination  seems  to  have  been, 
that,  the  first  bill  being  wholly  irregular,  the  plaintiff  could 
have  no  benefit  from  it,  and  it  might  have  been  dismissed  upon 
demurrer.  Where  a  decree  is  made  upon  a  bill  brought  by  a 
creditor  on  behalf  of  himself  and  all  other  creditors  of  the  same 
person,  and  another  creditor  comes  in  before  the  master  to 
take  the  benefit  of  the  decree,  and  proves  his  debt,  and  then  files 
a  bill  on  behalf  of  himself  and  the  other  creditors,  the  defend- 
ants may  plead  the  pendency  of  the  former  suit;  for  a  man 

23  Ibid.  26  Mass.  Mut.  L.  I.  Co.  v.  Chicago 

24  Durand    v.    Hutchinson,    Mich.       &  A.  R.  Co.,  13  Fed.  857. 

177t.  in  Chan.  27  Huggins  v.  York  B.  Co.,  2  Atk. 

25  Mitford's  PI.,  ch.  2,  §  2,  part  2,       44. 
siting  Crofts  v.  Wortley,  1  Ch.  Cas. 

-241. 


§    180]  LIMITATIONS.  039 

coming  in  under  a  decree  is  quasi  a  party."  28  The  pendency  of 
a  taxpayer's  bill  in  the  same  court  was  held  to  be  a  defense  to  a 
bill  by  other  taxpayers  for  the  same  relief.29  The  pendency  of 
a  suit  for  the  infringement  of  a  patent  in  one  district  is  no  bar 
to  a  suit  against  the  same  defendant  for  the  infringement  of  the 
same  patent  in  another  district ;  but,  in  the  latter  suit,  the  court 
will  only  consider  and  adjudicate  upon  alleged  infringements 
within  its  district  if  the  defendant  resides  or  has  made  a  gen- 
eral appearance  in  the  former.30 

§  178.  Defenses  in  Bar.  Defenses  in  bar  set  up  some 
reason  founded  on  the  substance  of  the  case,  why  the  plaintiff  is 
not  entitled  to  relief.  They  rest  upon  some  matter  created  by 
either  statute,  matter  of  record,  or  matter  in  pais,  which  last 
term  signifies  a  matteh  of  fact  that  is  not  of  record,  and  is 
not  given  by  statute  special  effect. 

§  179.  Defenses  of  statutes.  In  General.  Defenses 
founded  upon  matter  that  is  made  a  bar  by  statute  rests  upon 
the  statute  of  limitations,  the  statute  of  frauds,  or  less  frequent- 
ly some  other  statute.  An  act  of  Congress  ratifying  the  con- 
struction of  an  otherwise  illegal  structure  will,  if  constitutional, 
abate  a  suit  for  an  injunction  against  the  further  maintenance 
of  the  structure,  although  not  set  up  by  plea,  answer,  or  de- 
murrer.1 

§  180.  Federal  statutes  of  limitations.  Congress  has  en- 
acted statutes  of  limitations  in  certain  civil  and  criminal  cases. 

"In  any  suit  or  action  brought  for  the  infringement  of  any 
patent,  there  shall  be  no  recovery  of  profits  or  damages  for  any 
infringement  committed  more  than  six  years  before  the  filing 
of  the  bill  of  complaint  or  the  issuing  of  the  writ  in  such  suit 
or  action,  and  this  provision  shall  apply  to  existing  causes  of 
action."1  Less  than  six  years'  delay  will  rarely  bar  a  suit  to 
enjoin  the  infringement  of  a  patent;2  although  it  may  prevent 

28  Mitford's  PI.,  ch.  2,  §  2,  part.  2,  Wall.  4.14.  in  L.  ed.  969.  Hut  see 
<iting  upon  last  point,  Xeve  v.  Wes-  Griffing  v.  G-ibb,  2  Black.  519,  17 
ton.   3   Atk.  557.  I.,    ed.    353:     Liverpool.    X.    Y.    &    P. 

29  Gamble   v.   San    Diego,   70   Fed.  S.   S.   Co.   v.   Comrs   of    Emigration, 


4S 


113  U.  S.  33,  38,  28  L.  ed.  899,  900. 
§  ISO.     129   St.   ast    L.  694. 
2  Me  v.  Trorlicbt,  D.  &   X.  Cai 
§  1 70.     iThe  Clinton   Bridge,    10       Co.;  C.  C.  A..  115  Fed.  137.  147. 


30  Warren    Bros.    Co.    v.    City    of  §   ISO.     129   St.   at    L.   694. 

Montgomery,  172  Fed.  414.  2  u\(.  v.  Trorlicbt,  TX  \   X.  Carpet 


G40 


ANSWERS. 


[§  iso 


interlocutory  relief.3  The  fact  that  the  owner  of  a  patent  per- 
mitted a  snit  for  its  infringement  to  be  dismissed  before  trial 
without  prejudice  is  not  such  laches  as  to  bar  a  second  suit 
against  the  same  defendant  when  the  statutory  period  has  not 
expired,4  but  a  delay  before  suit  by  the  owner  of  a  patent,  of 
nine  vears  after  knowledge  of  an  infringement  was  held  to  be 
such  laches  as  to  defeat  his  case,  although  he  claimed  that  his 
partner  in  the  ownership  of  the  patent  had  prevented  the  pre- 
vious institution  of  the  litigation.5  It  has  been  held:  that  the 
Federal  statute  of  limitations  need  not  be  pleaded  to  bar  the  col- 
lection of  profits  or  damages  for  infringement  of  patents  more 
than  six  years  before  the  suit.6 

'"Suits  by  the  United  States  to  vacate  and  annul  any  patent 
heretofore  issued  shall  only  be  brought  within  five  vears 
from  the  passage  of  this  act,  and  suits  to  vacate  and  annul 
patent  hereafter  isued  shall  only  be  brought  within  six  years 
after  the  date  of  the  issuance  of  such  patents."7  It  has  been 
held :  that  this  statute  does  not  apply  to  suits  brought  on  behalf 
of  Indian  tribes  to  cancel  patents  issued  for  lands  within  a 
reservation  by  mistake,8  nor  to  suits  by  the  United  States  to 
cancel  so-called  trust  patents  for  Indian  allotments;9  that  the 
statutory  period  is  not  extended  by  a  fraud  which  is  concealed 
until  after  the  lapse  of  six  years,10  and  that  service  of  process 
in  such  a  suit  against  an  individual  stops  the  running  of  the 
statute  against  a  corporation  which  he  has  secretly  formed,  of 
which  all  the  capital  stock  is  owned  by  him,  and  the  existence 
of  which  was  unknown  to  the  officers  of  the  Government.11 


3  Infra,  §  294. 

*Welsbach  Light  Co.  v.  Colin,  181 
Fed.  123. 

5  Hall  v.  Frank,  195  Fed.  946.  In 
Layton  Pure  Food  Co.  v.  Church  & 
Dwight  Co.,  C.  C.  A.,  32  L.R.A. 
I  NT.S.)  274,  182  Fed.  35,  it  was  held 
that  similarly  a  delay  for  the  same 
period  in  a  trademark  case  did  not 
deprive  the  complainant  of  the  right 
to  an  injunction,  although  the  ac- 
counting must  he  limited  to  the  time 
subsequent  to  the  commencement  of 
the  suit. 

6  Peters  v.  Hanger,  C.  C.  A.,  127 


Fed.  820;  Johnson  v.  Roe,  1  Fed. 
(192:  Etting  v.  Marx's  Ex'r,  4  Fed. 
673.  But  see  Pratt  v.  Xortliain,  5 
Mason,  95.  . 

7  Act  of  March  3,  1891,  c.  559,  26 
St.  at  L.  1093. 

8  Northern  Pac.  Ry.  Co.  v.  U.  S., 
C.  C.  A.,  191   Fed.  947. 

9U.  S.  v.  La  Roque,  C.  C.  A.,  198 
Fed.  645. 

10  TJ.  S.  v.  Exploration  Co.,  190 
Fed.  405. 

n  Linn  &  Lane  Timber  Co.  v.  L\ 
S.,  C.  C.  A.,  196  Fed.  593. 


§    180]  STATUTES  OF  LIMITATIONS.  641 

"All  applications  for  patents  shall  be  completed  and  prepared 
for  examination  within  one  rear  after  the  filing  of  the  appli- 
cation, and  in  default  thereof,  or  upon  failure  of  the  applicant 
to  prosecute  the  same  within  one  year  after  any  action  therein, 
of  which  notice  shall  have  been  given  to  the  applicant,  they 
shall  be  regarded  as  abandoned  by  the  parties  thereto,  unless 
it  be  shown  to  the  satisfaction  of  the  Commissi*  i  t  of  Patents 
that  such  delay  was  unavoidable."  12  It  has  been  held  that  this 
requires  a  bill  in  equity  to  compel  the  issue  of  a  patent,  to  be 
filed  within  one  year  after  the  refusal  thereof.13 

The  Revised  Statutes  provide:  "~No  action  shall  be  main- 
tained in  any  case  of  forfeiture  or  penalty  under  the  copyright 
laws,  unless  the  same  is  commenced  within  two  years  after  the 
cause  of  action  has  arisen."  14  Whether  this  section  is  still  in 
force  has  not  been  decided.  The  Copyright  Act  of  March  4, 
1909,  provides:  "That  no  criminal  proceedings  shall  be  main- 
tained under  the  provisions  of  this  Act  unless  the  same  com- 
menced within  three  years  after  the  cause  of  action  arose."  15 
"~No  suit  on  a  marshal's  bond  shall  be  maintained  unless  it  is 
commenced  within  six  years  after  the  right  of  action  accrues, 
saving,  nevertheless,  the  rights  of  infants,  married  women,  and 
insane  persons,  so  that  they  sue  within  three  years  after  their 
disabilities  are  removed."  16 

"Every  claim  against  the  United  States,  cognizable  by  the 
Court  of  Claims,  shall  be  forever  barred  unless  the  petition 
setting  forth  a  statement  thereof  is  filed  in  the  court,  or  trans- 
mitted to  it  by  the  Secretary  of  the  Senate  or  the  Clerk  of  the 
House  of  Representatives  as  provided  by  law,  within  six  years 
after  the  claim  first  accrues :  Provided,  That  the  claims  of 
married  women  first  accrued  during  marriage,  of  persons  under 
the  age  of  twenty-one  years  first  aecrued  during  minority,  and 
of  idiots,  lunatics,  insane  persons,  and  persons  beyond  the  seas 
at  the  time  the  claim  aecrued,  entitled  to  the  claim,  shall  not 
be  barred  if  the  petition  be  filed  in  the  court  or  transmitted, 

12  U.  S.  R.  S.,  §  4894,  as  amended  14  U.  S.  R.  S.,  §  490S,  2  Fed.  St. 
20  St.  at  L.  692.  §  4,  5  Fed.  St.  Ann.  271,  Pierce  Fed.  Code,  §  8801. 
Ann.  488,  Comp.  St.  3384,  Pierce  15  36  St.  at  L.  1075,  §  39,  Pierce 
Fed.   Code,  §  8700.  Fed.  Code  Supp.,  §  1589. 

13  Westingliouse  El.  &  Mfg.  Co.  v.  16  U.  S.  R.  S.,  §  786,  Pierce's  Fed. 
Ohio  Brass  Co.,  180  Fed.  518.  Code,  §  7428,  4  Fed.  St.  Ann.  85. 

Fed.  Prac.  Vol.  I.— 41. 


642 


ANSWERS. 


[§  ISO 


as  aforesaid,  within  three  years  after  the  disability  has  ceased ; 
but  no  other  disability  than  those  enumerated  shall  prevent  any 
claim  from  being;  barred,  nor  shall  any  of  the  said  disabilities 
operate  cumulatively." "  A  similar  statute  regulates  suits 
aerainst  the  United  States  in  the  District  Courts.18 

Actions  by  laborers  and  materialmen  upon  bonds  given  to 
the  United  States  by  contractors  for  the  construction  or  repair 
of  public  buildings  and  public  works  "shall  not  be  commenced 
until  after  the  complete  performance  of  said  contract  and  final 
settlement  thereof,  and  shall  be  commenced  within  one  year 
after  the  performance  and  final  settlement  of  said  contract,  and 
not  later."  19  The  preceding  language  of  this  statute  forbids 
the  commencement  of  such  a  suit  by  a  laborer  or  materialman 
until  six  months  after  "the  completition  and  final  settlement  of 
the  contract."20  During  that  period,  the  United  States  alone 
can  sue,  although  the  creditors  have  the  right  to  intervene  in  a 
suit  brought  by  the  United  States.21  The  work  must  not  only 
be  completed,  but  there  must  be  a  final  settlement  of  the  con- 
tract. So  long  as  the  matter  is  under  consideration  by  the 
department  and  the  final  payment  has  not  been  made,  the  con- 
tract has  not  been  finally  settled.22  The  reservation  by  the 
Government,  in  accordance  with  the  contract,  of  a  specified  sum 
for  one  year  after  the  completion  and  acceptance  of  the  work, 
does  not,  it  has  been  held,  extend  the  time  of  final  settlement.23 
It  has  been  held  that  this  statute  of  limitations  is  a  condition 


17  U.  S.  R.  S.,  §  1000,  Pierce's 
Fed.  Code,  §  779S,  2  Fed.  St.  Ann. 
65.  See  chapter  on  Court  of  Claims. 
infra. 

is.Jud.  Code,  §  24,  subd.  20,  36 
St.  at  L.  1087.  Statutes  creating 
claims  against  the  United  States 
usually  also  prescribe  periods  of 
limitation  for  suits  thereunder.  E. 
G.  The  Indian  Depredations  Act  of 
March  3,  1801,  26  St.  at  L.  851, 
§  2,  2  Fed.  St.  Ann.  91,  Comp.  St. 
758,  Pierce's  Fed.  Code,  §  7845 ;  The 
French  Spoliations  Act  of  January 
20,  1885,  23  St.  at  L.  283,  §  6,  2 
Fed.  St.  Ann.  88,  Pierce's  Fed.  Code, 
§  7863. 


19  Act  of  August  13,  1894,  ch.  280,' 
28  St.  at  L.  278,  Comp.  St.  1901, 
p.  2523,  as  amended  by  Act  of  Feb- 
mary  24,  1905,  ch.  778.  33  St.  at  L. 
811,  Comp.  St.  Supp.  1909,  p.  94S. 

20  Ibid,  Stitzer  v.  U.  S.,  C.  C.  A., 
182  Fed.  513,  510. 

21  U.  S.  v.  Winkler.  162  Fed.  397; 
Title  Guaranty  &  Trust  Co.  v.  Puget 
Sound  Engine  Works,  C.  C.  A.,  103 
Fed.  108,  89  C.  C.  A.,  618;  U.  S. 
v.  McGee,  171  Fed.  209;  Stitzer  v. 
U.  S.,  C.  C.  A.,  182  Fed.  513,  510. 

22  Stitzer  v.  U.  S.,  C.  C.  A.,  182 
Fed.  513,  517. 

23  U.  S.  v.  Illinois  Surety  Co.,  195 
Fed.  300. 


§    ISO]  STATUTES  OF  LIMITATIONS.  643 

to  the  cause  of  action  granted  by  the  statute  and  consequently 
need  not  be  pleaded;24  and  that  so  much  of  the  statute  as  re- 
quires notice  to  all  known  creditors  and  publication  of  the  com- 
mencement of  the  action  need  not  be  complied  with  within  this 
period  of  time;25  and  that  the  commencement  of  an  action 
upon  such  a  bond  in  a  State  court,  which  had  no  jurisdiction 
of  the  same,  does  not  extend  the  statutory  period.26 

"jSTo  suit  or  prosecution  for  any  penalty  or  forfeiture, 
pecuniary  or  otherwise,  accruing;  under  the  laws  of  the  United 
States,  shall  be  maintained,  except  in  cases  where  it  is  other- 
wise specially  provided,  unless  the  same  is  commenced  within 
five  years  from  the  time  when  the  penalty  or  forfeiture  ac- 
crued." 27  It  has  been  held  that  this  applies  to  an  action  against 
a  common  carrier  to  recover  damages  for  a  discrimination.28 
A  previous  statute  provides :  "That  no  suit  or  action  to  recover 
any  pecuniary  penalty  or  forfeiture  of  property  accruing  under 
the  customs  revenue  laws  of  the  United  States  shall  be  insti- 
tuted unless  such  suit  or  action  shall  be  commenced  within  three 
years  after  the  time  when  such  penalty  or  forfeiture  shall  have 
accrued:  provided,  that  the  time  of  the  absence  from  the 
United  States  of  the  person  subject  to  such  penalty  or  forfei- 
ture, or  of  any  concealment  or  absence  of  the  property,  shall 
not  be  reckoned  within  this  period  of  limitation." 29  It  was 
held  that  this  statute  was  in  force  in  1007  and  aplied  to  a 
suit  brought  under  the  Customs  Administrative  Act  of  June 
10,  1890,  for  the  forfeiture  of  property.31  Actions  for  penal- 
ties, forfeiture,  or  damages  for  the  presentation  of  false  claims 
to  the  United  States,  must  "be  commenced  within  six  years 
from  the  commission  of  the  act,  and  not  afterward."  32 

"Xo  person  shall  be  prosecuted,  tried,  or  punished  for  treason 

24Stitzer  v.  U.  S.,  C.   C.  A.,   182  114  Fed.  606.     Cf.  Murray  v.  Chica- 

Fed.  513.  516.  go  &   N.   W.  Ry.   Co.,   C.   C.   A.,  92 

25  U.  S.  v.  United  Surety  Co.,  192  Fed.  868.  35  C.  C.  A.  62. 

Fed.  992.  29  Act  of  June  22,   1874,  ch.  391, 

2«U.  S.  v.  Boomer,  C.  C.  A.,  183  IS   St.   at   L.    190,   Comp.   St.    1901, 

Fed.  726.  [..  727. 

27  V.  S.  R.  S.,  §  1047,  Comp.  St.  30  26    St.    at   L.    135,    Comp.    St. 
1 901.  p.  727.  1901,  p.  1895. 

28  Carter  v.  New  Orleans  &  N    E.  31  \\   s.   v.   Wittemann,   C.   C.   A., 
R.  Co.,  C.  C.  A.,  143  Fed.  99.     Con-  152  Fed.  377. 

fra,   Ratican   v.   Terminal   R.    Ass'n,  32  U.    S.    R.    S.,    §    3494,    Pierce's 


644  ANSWERS.  [§    180- 

or  other  capital  offense,  willful  murder  excepted,  unless  the 
indictment  is  found  within  three  years  next  after  such  treason 
or  capital  offense  is  done  or  committed."  33  "Xo  person  shall  be 
prosecuted,  tried,  or  punished  for  any  crime  arising  under  the 
revenue  laws,  or  the  slave-trade  laws  of  the  United  States,  un- 
less the  indictment  is  found  or  the  information  is  instituted 
within  five  years  next  after  the  committing  of  such  crime."  3* 
"Xo  person  shall  be  prosecuted,  tried,  or  punished  for  any  of- 
fense, not  capital  except  as  provided  in  section  one  thousand  and 
forty-six,  unless  the  indictment  is  found,  or  the  information  is 
instituted  within  three  years  next  after  such  offense  shall  have 
been  committed.  But  this  act  shall  not  have  effect  to  authorize 
the  prosecution,  trial  or  punishment  for  any  offense,  barred  by 
the  provisions  of  existing  laws."  35  The  copyright  law  of  1909 
provides :  "That  no  criminal  proceeding  shall  be  maintained 
under  the  provisions  of  this  Act  unless  the  same  is  commenced 
within  three  years  after  the  cause  of  action  arose."  The 
Revised  Statutes  previously  provided:  "Xo  action  shall  be 
maintained  in  any  case  of  forfeiture  or  penalty  under  the 
copyright  laws,  unless  the  same  is  commenced  within  two  years 
after  the  cause  of  action  has  arisen."  37 

The  Interstate  Commerce  Act  provides  concerning  claims 
thereunder  against  Railroad  Companies:  "All  complaints 
for  the  recovery  of  damages  shall  be  filed  with  the  Commission 
within  two  years  from  the  time  the  cause  of  action  accrues, 
and  not  after,  and  a  petition  for  the  enforcement  of  an  order 
for  the  payment  of  money  shall  be  filed  in  the  Circuit,"  now 
the  District  "Court  within  one  year  from  the  date  of  the  order 
and  not  after:  Provided  that  claims  accrued  prior  to  the  pas- 
sage of  this  act  may  be  presented  within  one  year."  38 

Fed.  Code,  §   1686,  2  Fed.  St.  Ann.  at  L.  1075,  §  39,  Pierce's  Fed.  Code, 

31.  §  1589. 

33  U.  S.  R.  S.,  §  1043,  Pierce's  37  u.  S.  R.  S.,  §  4968,  Pierce's 
Fed.  Code,  §  77CO,  2  Fed.  St.  Ann.  Fed.  Code,  §  8S61.  2  Fed.  St.  Ann. 
358.  271. 

34  U.  S.  R.  S.,  §  104(5.  38  Act    of    Feb.    4,    1SS7,    c.    104, 

35  U.  S.  R.  S,  §  1044.  Pierce's  §  16,  24  St.  at  L.  3S4  (Comp.  St. 
Fed.  Code,  §  776],  2  Fed.  St.  Ann.  1001.  p.  3165),  as  amended  by  Act 
358.  of   June   29,    1906,   c.   3591.    §   5,   34 

36  Act   of   March    4,   1909,   35   St.  St.  at  L.  590  (Comp.  St.  Supp.  1909, 


§  181] 


STATUTES  OF  LIMITATIONS. 


645 


It  has  been  held  that  a  cause  of  action  to  recover  damages 
for  unreasonable  charges  accrued  when  the  shipment  termi- 
nated and  the  complainant  became  liable  for  the  freight,  and 
not  when  he  paid  the  same.39 

§  181.  State  statutes  of  limitations.  When  there  is  no 
Act  of  Congress  upon  this  subject  the  courts  of  the  United 
States  in  actions  at  common  law  are  bound  by  the  State  stat- 
utes of  limitations.1  The  effect  of  a  State  statute  of  limitations 
upon  actions  at  common  law,  to  enforce  rights  created  by  Fed- 
eral statutes,  was  for  a  long  time  the  subject  of  conflicting  ad- 
judications.2 Before  the  passage  of  the  act  of  Congress  upon 
the  subject,  it  was,  however,  held  that  actions  at  common  law 
for  the  infringement  of  a  patent  were  barred  by  the  period 
of  limitations  prescribed  by  the  statutes  of  the  State  where 
the  Federal  court  was  held.3  It  has  been  further  held :  that  the 
State  statutes  of  limitations  apply  to  actions  to  enforce  the 
liability  of  stockholders  of  national  banks,4  when  however,  the 
statute  does  not  begin  to  run  until  the  Comptroller  of  the  Cur- 
rency orders  an  assessment,5  and  that,  in  the  absence  of  any 
discrimination  against  the  authorities  of  the  United  States, 
they  apply  to  suits  against  Federal  officers,  founded  upon  their 


p.  1159),  Pierce's  Fed.  Code,  §  6435; 
A.  J.  Phillips  Co.  v.  Grand  Trunk 
Western  Ry.  Co.,  C.  C.  A.,  195  Fed. 
12. 

39  Arkansas  Fertilizer  Co.  v.  U. 
S'.,   (Coram.  Ct.)    193  Fed.  667. 

§  181.  1'U.  S.  R.  S.,  §  721;  Bell 
v.  Morrison,  1  Pet.  351,  7  L.  ed. 
174;  Tioga  R.  Co.  v.  Blossburg  & 
C.  R.  Co.,  20  Wall.  137,  22  L.  ed. 
331  ;  Bauserman  v.  Blunt.  147  U.  S. 
647,  37  L.  ed.  316;  Security  Tr.  Co. 
v.  Black  River  Nat.  Bank,  187  U. 
S.  211,  47  L.  ed.  147:  D'Wolf  v. 
Rabaud,  1  Pet.  476,  7  L.  ed.  227; 
Clark  v.  Smith,  13  Pet.  195,  10  L. 
ed.  123;  Fitch  v.  Creighton,  24  How. 
159,  16  L.  ed.  596;  Brine  v.  Insur- 
ance Co.,  96  U.  S.  627,  24  L.  ed. 
858;  Mills  v.  Scott,  99  U.  S.  25,  25 
L.  ed.  294;  Van  Norden  v.  Morton, 
99  U.  S.  378,  25  L.  ed.  453;    Cum- 


mings  v.  National  Bank.  101    U.  S. 

153,  157,  25  L.  ed.  903,  904;  Holland 
v.  Challen.  110  U.  S.  15,  28  L.  ed. 
52;  Reynolds  v.  Crawfordsville  First 
Nat.  Bank,  112  U.  S.  405,  28  L.  ed. 
733;  Bucher  v.  Cheshire  R.  Co.,  125 
U.  S.  555,  31  L.  ed.  795.  But  see 
Watson  v.  Tarpley,  18  How.  517,  15 
L.  ed.  509. 

2  See  the  Second  Edition  of  this 
Treatise,  p.  72. 

3  Campbell  v.  Haverhill.  155  U.  S. 
610,  39  L.  ed.  280. 

*McC0aine   v.   Rankin.   197   U.    S. 

154,  49  L.  ed.  702. 

5  Rankin  v.  Barton.  199  U.  S.  228, 
50  L.  ed.  163.  The  statute  against 
an  assessment  against  stockholders 
under  a  State  statute  does  not  run 
until  the  entry  of  the  decree  levying 
tlie  assessment.  Irvinp  v  Putnam. 
190  Fed.  321. 


646 


AXSWKIIS. 


[§  131 


official  acts,6  and  to  actions  upon  judgments  of  courts  of  the 
United  States.7 

Federal  courts  of  equity  are  not  bound  by  State  statutes  of 
limitations,8  except  in  cases  where  their  jurisdiction  is  concur- 
rent with  the  jurisdiction  at  common  law;9  but  they  will  usual- 
ly follow  them,10  unless  injustice  otherwise  would  be  done,11 


6  McCluny  v.  Silliman,  3  Pet.  270, 
277,  7  L.  ed.  676.  678;  Andreae  v. 
Redfield,  98  U.  S.  225.  25  L.  ed.  158; 
Barney  v.  Oelricks,  138  U.  S.  529, 
34  L.  ed.  1037.  See  also  Beatty's 
Adm'r  v.  Burne's  Adm'rs,  8  Craneh, 
98,  107,  108,  3  L.  ed.  500,  503,  504; 
Campbell  v.  Haverhill.  155  V.  S. 
610.  620.  39  L.  ed.  280.  283. 

7Metcalf  v.  Watertown,  153  U.  S. 
671,  38  L.  ed.  861. 

8  Wagner  v.  Baird,  7  How.  234, 
258,  12  L.  ed.  681,  691;  Godden  v. 
Kimmell,  99  U.  S.  201,  25  L.  ed. 
431 :  Wilson  v.  Koontz,  7  Crancli, 
202,  3  L.  ed.  315;  Kirby  v.  L,  S.  & 
M,  S.  R.  Co.,  120  U.  S.  130,  137,  30 
L.  ed.  569,  572;  Richards  v.  Mary- 
land Ins.  Co.,  8  Cranch,  84,  3  L.  ed. 
496 ;  Hanger  v.  Abbott,  6  Wall.  532, 
IS  L.  ed.  939;  Etting  v.  Marx's 
Ex'r,  4  Fed.  673;  Stevens  v.  Sharp, 
6  Sawy.  993;  Continental  Nat.  Bank 
v.  Heilraan,  81  Fed.  36;  Redd  v. 
Brim,  C.  C.  A..  157  Fed.  190;  Jack- 
son v.  Horton,  3  Caines  (N.  Y. )  19; 
Ide  v.  Trorlicht.  D.  &  R.  Carpet  Co., 
C.  C.  A..  115  Fed.  137;  Stevens  v. 
Grand  Cent.  Min.  Co.,  C.  C.  A.,  133 
Fed.  28. 

9  Wagner  v.  Baird,  7  How.  234, 
258,  12  L.  ed.  681,  691;  Godden  v. 
Kimmell,  99  U.  S.  201,  25  L.  ed. 
431:  Meath  v.  Phillips  Co.,  108  U. 
S.  553,  27  L.  ed.  819.  Contra. 
Rodgers  v.  Thomas.  C.  C.  A.,  ]!)3 
Fed.  952,  957;  Riner,  J.:  "We 
think  it  is  the  general  rule  that 
courts  of  equity  in  cases  of  concur- 


rent jurisdiction  usually  consider 
themselves  bound  by  the  statute  of 
limitations  which  governs  courts  of 
law  in  like  cases,  and  this  rather 
in  obedience  to  the  statute  of  limita- 
tions than  by  analogy,  while  in 
many  other  cases  they  act  upon  the 
analogy  of  the  statute  of  limitations 
at  law." 

10  Wagner  v.  Baird,  7  How.  234, 
258,  12  L.  ed.  681,  691;  Broderick's 
Will,  21  Wall.  503,  22  L.  ed.  599; 
Godden  v.  Kimmell,  99  U.  S.  201, 
25  L.  ed.  431 ;  Meath  v.  Phillips 
County,  108  U.  S.  553;  Kirby  v. 
L.  S.  &  M.  S.  R.  Co.,  120  U.  S.  130, 
30  L.  ed.  569;  Pratt  v.  Xortham,  5 
Mason,  95,  112,  per  Story,  J.;  Xor- 
ris  v.  Haggin,  136  U.  S.  386,  34  L. 
ed.  424;  O'Brien  v.  Wheelock,  184 
U.  S.  450,  482,  493,  46  L.  ed.  636, 
651,  655. 

11  Higgins  Oil  &  Fuel  Co.  v.  Snow, 
C.  C.  A.,  113  Fed.  433;  Patterson 
v.  Safe  Deposit  k  Trust  Co.,  148 
Fed.  787;  Redd  v.  Brun,  C.  C.  A., 
157  Fed.  190;  Fogg  v.  St.  Louis,  H. 
&  K.  R.  Co.,  17  Fed.  871,  873; 
Cheatham  v.  Evans,  C.  C.  A.,  160 
Fed.  802;  Wilson  v.  Plutus  Min. 
Co.,  C.  C.  A.,  174  Fed.  319;  Arm- 
strong Cork  Co.  v.  Merchants'  Re- 
frigerating Co.,  C.  C.  A.,  184  Fed. 
199;  Xewbery  v.  Wilkinson,  190 
Fed.  62;  Rodgers  v.  Thomas,  C.  C. 
A..  193  Fed.  952;  Updike  v.  Mace, 
194  Fed.  1001;  Davis  v.  Smokeless 
Fuel  Co.,  C.  C.  A.,  196  Fed.  753; 
I.avton  Pure  Food  Co.  v.  Church  & 


§  131] 


STATUTES  OF  LIMITATIONS. 


647 


especially  in  foreclosure  suits12  and  suits  against  executors 
and  administrators,13  unless  there  is  an  Act  of  Congress 
upon  the  subject.  It  has  been  said  that  a  Federal  court  of 
equity  will  never  follow  a  State  statute  of  limitation  when 
thereby  manifest  wrong  and  injustice  would  be  wrought.14  nor 
usually  in  case  of  a  fraud  that  has  been  concealed.15  The 
Federal  courts  will  usually  give  such  statutes  the  same  con- 
struction that  is  placed  upon  them  by  the  courts  of  the  re- 
spective States  where  they  were  enacted ; 16  but  a  coiijt  of  ad- 
miralty refused  to  follow  a  decision  of  a  State  court  which  did 
not  permit  a  foreign  corporation,  subject  to  service  of  process 
within  the  State,  to  plead  the  statute.17  A  State  statute  of 
limitation  canuot  bar  the  United  States;18  even,  it  has  been 
said,  if  specially  named  therein ; 19  but  the  United  States  may 
take  advantage  of  a  State  statute  of  limitations.20  The  United 
States  may  plead  a  State  statute  of  limitations  which  does  not 
name  them ; 21  and  so  may  officers  of  the  United  States  in 
possession  of  property  claimed  by  the  government.22  The 
rule  that  a  State  is  not  affected  by  laches  or  a  statute  of  limi- 


Dwight  Co.,  C.  C.  A.,  32  L.RA. 
(N.S.)  274,  182  Fed.  35;  L.  Bro- 
derick's  Will,  21  Wall.  503,  22  L. 
ed.  599;  Pulliam  v.  Pulliam,  10 
Fed.  53;  Fogg  v.  St.  Louis.  H.  &  K. 
R.  Co.,  17  Fed.  871,  873;  Story's 
Eq.  Jur..  §  1521.  Cf.  Scott  v.  Arm- 
strong, 146  U.  S.  499,  36  L.  ed. 
1059;  Security  Tr.  Co.  v.  Black 
River  Nat.  Bank.  187  IT.  S.  211,  237, 
47  L.  ed.  147.  158. 

12  Cleveland  Ins.  Co.  v.  Reed,  1 
Biss.  180;  Reeves  v.  Vinacke,  1  JIc- 
Crary,  213,  217,  per  Nelson  and 
Dillon,   JJ. 

13  Pulliam  v.  Pulliam,  10  Fed.  53: 
Broderick's  Will,  21  Wall.  503,  22 
L.  ed.  599;  Newbery  v.  Wilkinson, 
190  Fed.  62. 

14  Fogg  v.  St.  Louis.  H.  &  K.  R. 
Co.,  17  Fed.  871.  873;  Story's  Eq. 
Jur.,  §  1521.  Cf.  Scott  v.  Arm- 
strong, 146  U.  S.  499.  36  L.  ed. 
]0r>9;  Security  Tr.  Co.  v.  Black 
River  Nat.  Bank.  187  U.  S.  211,  237, 
47  L.  ed.  147,  158. 


l5McIntire  v.  Pryor,  173  U.  S. 
38,  43  L.  ed.  606;  Saxlehner  v. 
Eisner  &  M.  Co..  179  U.  S.  19,  45 
L.  ed.  60:  Newberry  v.  Wilkinson, 
C.  C.  A.,  199  Fed.  673;  Citizens' 
Saw  &  Tr.  Co.  v.  Illinois  Cent.  R. 
Co.,  C.  C.  A.,  182  Fed.  607. 

16  Cheatham  v.  Evans,  C.  C.  A., 
160  Fed.  802:  Armstrong  Cork  Co. 
v.  Merchants'  Refrigerating  Co.,  C. 
C.  A.,  184  Fed.  199. 

17  Davis  v.  Smokeless  Fuel  Co.,  C. 
C.  A.,  196  Fed.  753. 

18  Gibson  v.  Chouteau.  13  Wall. 
92,  20  L.  ed.  534;  U.  S.  v.  Thomp- 
son. 98  U.  S.  486,  25  L.  ed.  194.  See 
infra,  §  — . 

19  U.  S.  v.  Thompson,  98  U.  S. 
486,  490.  2.5  L.  ed.  194.  195. 

20  Stanley  v.  Schwalby.  147  U.  S. 
508,  517.  37  L.  ed.  259,  263. 

21  Stanley  v.  Schwalby.  147  U.  S. 
508.  517,  37   L.  ed.  259,  263. 

22  Stanley  v.  Schwalby.  147  U.  S. 
508,  518.  37  L.  ed,  259,  263. 


(U3 


ANSWERS. 


[§    18: 


tation  cannot  aid  a  creditor  of  a  State  when  suing  one  of  its 
debtors.88  An  individual  seeking  to  enforce  by  subrogation 
the  rights  of  a  State  may  be  estopped  by  laches  of  the  State 
which  would  not  have  affected  the  State  itself.24  Municipal 
corporations  and  counties  may  be  estopped  by  laches.25  Laches 
or  the  statute  of  limitations  may  be  pleaded  to  a  bill  to  remove 
a  cloud  on  title  filed  by  one  out  of  possession.26  The  filing 
of  a  bill  in  equity  stops  the  running  of  the  statute  of  limi- 
tations, although' the  subpoenas  are  not  issued  until  subsequent 

*  *  27 

to  its  expiration. 

§  182.  Equitable  laches.  Moreover,  the  lapse  of  time  for 
a  shorter  period  than  the  statute  of  limitations,  and  in  cases 
to  which  that  statute  does  not  apply,  will  often  be  held  such 
laches  as  to  bar  the  complainant l  but  very  rarely,  unless  other 
circumstances  than  the  mere  lapse  of  time  make  it  inequitable 
to  permit  the  complainant  to  sue.2  The  United  States  are  not 
bound  by  laches,3  unless  equities  have  arisen  through  the  lapse 
of  time ; 4  or  where  a  suit  is  brought  in  the  name  of  the  United 
States  to  enforce  the  rights  of  a  private  person.5  It  is  not 
laches  for  a  complainant  to  delay  asserting  his  rights  until  the 
determination  in  another  suit,  brought  by  himself  or  another 
in  a  similar  position,  of  a  doubtful  question  of  law  materially 
affecting  their  validity,6  nor  is  delav  because  of  the  inability 


23  Cressy  v.  Meyer,  138  U.  S.  525, 
34  L.  eel.  1018. 

24  Ibid. 

25  Boone  County  v.  Burlington  M. 
R.  R.  Co.,  139  U.  S.  684,  35  L.  ed. 
319. 

26  Sage  v.  Winona  &  St.  P.  R.  Co., 
58  Fed.  -207. 

27  Armstrong  Cork  Co.  v.  Mer- 
chants' Refrigerating  Co.,  C.  C.  A., 
184  Fed.  109. 

§  182.  l  Brown  v.  County  of 
Btiena  Vista,  95  U.  S.  157,  161,  24 
L.  ed.  422,  423. 

2  Stuart  v.  Holland.  179  Fed.  969; 
Central  R.  Co.  of  New  Jersey  v. 
Jersey  City,  199  Fed.  237;  New- 
berry v.  Wilkinson,  C.  C.  A..  199 
Fed.  673. 

8U.   S.   v.   Beebe,   127   U.   S.   338, 


32  L.  ed.  121;  U.  S.  v.  Insley,  130 
U.  S.  263.  32  L.  ed.  968;  U.  S.  v. 
Dalles  M.  L.  Co.,  140  U.  S.  599,  55 
L.  ed.  560:  U.  S.  v.  Fitts,  197  Fed. 
1007,  an  action  to  collect  the  legacy 
tax. 

4  U.  S.  v.  Stinson,  197  U.  S.  200, 
49  L.  ed.  724. 

5U.  S.  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  C.  C.  A.,  116  Fed.  969. 
Cf.  U.  S.  v.  Beebe,  127  U.  S.  338, 
32  L.  ed.  121. 

6  Buxton  v.  James.  5  De  Gex  & 
Sm.  80,  84:  Rumford  Chem.  Works 
v.  Vice,  14  Blatchf.  179,  180;  Green 
v.  Barney,  19  Fed.  420;  Hurd  v. 
James  Goold  Co.,  197  Fed.  756:  Cen- 
tral R.  Co.  of  New  Jersey  v.  Jersey 
City,  199  Fed.  237;  Jackson  Co.  v. 
Gardiner  Inv.  Co.,  C.  C.  A.,  200  Fed. 


§  183] 


STATUTES  OF  LIMITATIONS. 


649 


of  the  owner  to  bear  the  expense  of  the  litigation,7  nor,  in 
Porto  Rico,  a  delay  warranted  by  the  previous  jurisprudence 
and  caused  by  lack  of  knowledge  of  the  principles  of  chancery.8 
§  183.  Pleading  statute  of  limitation.  It  is  the  safer 
practice  for  the  defendant  to  plead  the  statute  of  limitations 
in  every  case  where  he  relies  upon  it ; 1  although,  when  laches 
appear  upon  the  face  of  the  bill,  it  might  perhaps  be  dismissed 
upon  motion  before  answer ; 2  and  under  the  former  practice, 
the  defense  of  laches,  although  not  pleaded,  might  be  raised 
at  the  hearing.3  AVhere  the  bill  shows  that  a  reissued  patent 
was  void  because  of  delay  in  the  patent  office,  that  defense  need 
not  be  pleaded.4  In  certain  cases,  it  has  been  held  that  Federal 
statutes  of  limitations  need  not  be  pleaded.5  Laches  may  be 
pleaded.6  Laches  in  prosecuting  a  suit  after  it  is  brought  may 
also  be  taken  into  consideration.7  That  the  delay  has  been  pre- 
judicial to  the  defendant  need  not  be  affirmatively  shown,  but 
may  be  presumed,  and  it  was  so  presumed  when  a  bill  was  filed 
eighteen  months  after  the  complainant  admitted  to  have  dis- 


113;  People  v.  Cooper,  22  Hun  (29 
X.  Y.  S.  C.  R.),  515,  517.  See  Illi- 
nois G.  T.  Ry.  Co.  v.  Wade,  140  U. 
8.  05,  35  L.  ed.  342. 

?  Davis  v.  A.  H.  Reid  Creamery 
&  Dairy  Supply  Co.,  187  Fed.  157. 

8  Noble  v.  Gallardo  y  Seary,  223 
U.  S.  65,  56  L.  ed.  353. 

§  183.  iFichtel  v.  Barthel,  173 
Fed.  489,  a  patent  case;  Robinson 
v.  Mutual  Reserve  Life  Ins.  Co.,  175 
Fed.  629;  Robinson  v.  Mutual  Re- 
serve Life  Ins.  Co.,  175  Fed.  629. 
The  limitation  upon  the  time  to 
bring  actions  to  claim  filiation  in 
the  Civil  Code  of  Porto  Rico  of 
1889,  art.  137,  and  of  §  199  of  the 
Porto  Rico  Act  of  March  1,  1902, 
must  be  pleaded.  Burnet  v.  Des- 
mornes  Y  Alvarez,  226  U.  S.  145. 
57  L.  ed.  — .  A  defendant  in  a 
foreclosure  suit,  who  claimed  an  in- 
terest in  the  property,  but  who  was 
not  alleged  to  he  in  possession  nor 
to  owe  the  amount  of  the  debt,  was 
not  allowed  by  a  demurrer  to  avail 
himself  of  the  statute  of  limitations. 


Blair  v.  Silver  Peak  Mines,  84  Fed. 
737. 

2Godden  v.  Kimmell,  99  U.  S. 
201,  25  L.  ed.  431;  National  Bank 
v.  Carpenter,  101  U.  S.  567,  25  L. 
ed.  815;  Wisner  v.  Barnet,  4  Wash. 
631 ;  Robinson  v.  Mutual  Reserve 
Life  Ins.  Co.,  175  Fed.  629. 

3  Nat.  Cash  Register  Co.  v.  Union 
Comp.  Mach.  Co..  143  Fed.  342. 

MVollensak  v.  Reiher,  115  U.  S. 
96,  101,  29  L.  ed.  350,  351;  Lock- 
hart  v.  Leeds,  195  U.  S.  427,  49  L. 
ed.  263:  Thurmond  v.  CheS.  &  O. 
Ry.  Co.,  C.  C.  A..  140  Fed.  697. 

5  Supra.  §    180. 

6  Edison  El.  Light  Co.  v.  Equita- 
ble Life  Assur.  Soc.  of  U.  S.,  55 
Fed.  478:  Sullivan  v.  P.  &  K.  R. 
Co.,  94  U.  S.  806,  811,  24  L.  ed. 
324;  Doe  v.  Hyde.  114  U.  S.  247, 
29  L.  ed.  142;  Phillippi  v.  Rhillippe, 
!  15   U.   S.    151.   -29   L.  ed.  336. 

7  See  Underfeed  Stoker  Co.  v.  Am. 
Stoker  Co.,  169  Fed.  891,  infra, 
§   294. 


650  ANSWERS.  184: 

covered  the  existence  of  a  decree  of  divorce  which  he  claimed  to 
be  fraudulent  and  the  defendant  had  married  since  the  decree.8 
"When  a  suit  is  brought  after  the  statutory  time,  the  burden  is 
on  the  complainant  to  show  in  his  bill  and  by  his  proof  that  it 
would  be  inequitable  to  apply  the  statute  to  his  case.9 

The  defense  of  the  statute  of  limitations  is  in  substantially 
the  same  form  as  a  similar  plea  in  an  action  at  law.  hut  no 
special  form  is  essential.10  The  same  strictness  of  pleading  the 
statute  is  not  required  at  equity  as  at  law;  and  it  was  held  to 
be  a  sufficient  averment  of  the  statute  of  limitations,  as  well 
as  of  laches,  when  the  answer  alleged  that  if  there  had  heen  any 
claim  against  the  defendant's  intestate  in  his  lifetime,  by 
reason  of  the  transactions  alleged  in  the  bill,  which  was  denied, 
said  claim  was  barred  by  the  lapse  of  time  and  the  neglect  of 
plaintiff  to  have  a  settlement  of  the  same  in  the  lifetime  of  the 
decedent;  and  that  the  defendant,  therefore,  believes  that  any 
such  claim  is  barred,  as  plaintiff  allowed  the  claim  to  sleep 
only  after  the  death  of  deceased.11  When  the  answer  pleaded 
a  limitation  of  six  years,  whereas  the  three  years'  statute 
applied ;  it  was  held  to  be  sufficient.12  If  the  bill  charge  fraud 
or  other  matters,  which,  if  true,  would  prevent  the  statute  from 
depriving  the  complainant  of  relief,  the  plea  must  deny  them.13 

§  184.  Defense  of  statute  of  frauds.  The  State  stat- 
ute of  frauds  will  be  followed  by  the  Federal  courts.1     Under 

8  McNeil  v.  McNeil,  C.  C.  A.,  170  v.  P.  &  K.  R.  Co.,  94  U.  S.  806,  811, 

Fed.  289.     In   Newberry  v.  Wilkin-  24  L.  ed.  324,  326;  Doe  v.  Hyde.  114 

son,  C.   C.  A.,   199   Fed.   673.  a  bill  U.  S.  247,  29  L.  ed.  242;   Phillippi 

was  dismissed  for  laches  when  filed  v.    Phillippe,    115   U.   S.   151,   29    L. 

against   the   sureties   of   a   guardian  ed.  336. 

between   three  and  four  years  after  10  Harpending  v.   Reformed    Prot. 

the  complainant  became  of  age,  and  Ch.,    16    Pet.    455,    10   L.   ed.    1029; 

he  bad  had  notice  sufficiently  to  put  West  Portland  H.  Ass'n  v.  Lowns- 

him  upon   inquiry  two  years  before  dale,   17   Fed.  205;    Story's  Eq.   PI., 

his    infancy    terminated,    but    made  §  752. 

no  search  of  the  records  until  three  H  Huntington  Nat.  Bank  v.  Hun- 
months  before  the  suit  was  brought.  tington  Distilling  Co.,  152  Fed.  240. 

9Godden  v.  Kinvmel,  99  U.  S.  201,  12  Ramsden    v.    Gately,    142    Fed. 

25    L.    ed.    431;    National    Bank    v.  912. 

Carpenter,  101   U.  S.  567,  25  L.  ed.  13  Stearns   v.   Page,   1    Story,   204. 

815;   Wilson  v.  Plutus  Min.  Co.,  C.  §   184.     1  Randall    v.    Howard,    2 

C.  A.,  174  Fed.  317;  Wisner  v.  Bar-  Black,  585,  5S9,  17  L.  ed.  269,  2.71. 
net,  4  Wash.  631.     But  see  Sullivan 


§  185]  DEFENSES  IN  PAIS.  651 

the  old  practice,  if  the  bill  showed  that  the  complainams  ease 
is  repugnant  to  the  statute  of  frauds,  it  was  demurrable,2  This, 
however,  is  rarely  the  case,  and  the  statute  was  usually  referred 
to  by  plea  or  answer.3  The  rule  is  thus  stated  by  Lord  Chan- 
cellor Cranworth:  "It  was  argued  that  the  statute  of  frauds 
was  not  open  to  the  defendant,  by  reason  of  his  not  having 
insisted  upon  the  statute  as  a  defense;  but  this  is  a  mistake. 
Where  a  defendant  admits  the  agreement,  if  he  intends  to 
rely  on  the  fact  of  its  not  being  in  writing  and  signed,  and 
so  being  invalid  by  reason  of  the  statute,  he  must  say  so ;  other- 
wise he  is  taken  to  mean  that  the  admitted  agreement  was  a 
written  agreement  good  under  the  statute,  or  else  that  on  some 
other  ground  it  is  binding  on  him ;  but  where  he  denies  or  does 
not  admit  the  agreement  the  burden  of  proof  is  altogether  upon 
the  plaintiff,  who  must  then  prove  a  valid  agreement  capable 
of  being  enforced.'1'4  The  facts  which  show  that  the  statute 
applies  must  be  stated  specifically.5  Otherwise  the  defense  is 
bad.6 

§  185.  Defenses  of  matter  in  pais.  Defenses  founded 
upon  matter  in  pais  state  some  other  reason,  why  the  plaintiff 
should  not  have  relief,1  for  example,  a  release  or  an  account 
stated,  or  a  purchase  without  notice  for  a  valuable  consideration. 
A  plea  of  purchase  without  notice  for  a  valuable  consideration 
should  deny  notice  positively,  and  should  state  the  amount  of 
the  consideration.2  It  is  insufficient  to  plead  that  the  de- 
fendant paid  a  "good  and  valuable  consideration,  to-wit.  a 
certain  sum  of  money."3  Xotice  to  an  individual  is  notice  to 
a  corporation  subsequently  formed  by  him,  in  which  he  retained 
the  control.4  It  seems  that  a  purchaser  without  notice  pending 
a  suit  is  confined  to  asserting  his  rights  in  the  pending  cause.5 

2  Randall     v.    Howard,    2     Black.  6  Ibid. 

585,   589,    17   L.   ed.   269.   271.      But  §   185.     1  Story's  Eq.  PI..  §§  795- 

see     Chapman     v.     School     Dist.,     1  815. 

Deady,  ]08.  8  Wood  v.  Mann.   1   SuMii.  506. 

3  For  an   illustration  of  the  plea,  3  Seeombe  v.  Campbell,  18  Blatchf. 
see  Jackson  v.  Oglandor,  2  H.  &  M.  108. 

465.  4  Rickey  Land  &  Cattle  Co.  v.  .Mil- 

4Ridg\vay   v.    Wharton.   3    De   G.,  lor,    218   U.    S.    258,    203.    54   L.   ed. 

M.    &    G.    677.    689.      But    see   Heys  1032.  1038.     See  Linn  &  Lane  Tim- 

v.  Astley,  9  Law  Times  (X.  S.).  356.  her  Co.  v.  U.  S  ,  C.  C.  A..    196    Fed. 

5  Bailey  v.  Wright,  2  Bond.    IK1-,  593. 

McCloskev  v.  Barr,  38  Fed.  165.  169.  5  Rickey  Land  &  Cattle  Co.  v.  Mil 


652  ANSWERS.  [§    186 

§  186.  Defenses  of  matter  of  record  or  res  adjudicata. 
A  plea  founded  upon  matter  of  record  sets  up  the  judgment  o: 
decree  of  a  court  of  record  upon  the  same  matter  and  between 
the  same  parties,  or  those  in  privity  with  them,  in  a  cause 
of  which  it  had  jurisdiction.1  Pleas  of  matter  of  record  are 
in  some  of  the  books  distinguished  from  pleas  of  matter  as  of 
record.  This  distinction  was  due  to  the  fact  that,  in  England, 
the  Court  of  Chancery  in  its  equitable  jurisdiction,  the  Court 
of  Admiralty  and  ecclesiastical  courts  were  deemed  courts  not 
of  record,  although  their  decrees  had  the  same  effect  as  the 
judgments  of  the  courts  of  record.2  AVhere  there  is  neither  valid 
service  of  process,  nor  voluntary  appearance,  a  judgment  in 
personam  is  not  an  estoppel ;  3  but  a  State  statute  providiug  that 
a  special  appearance  for  the  sole  purpose  of  questioning  the 
jurisdiction  is  equivalent  to  a  general  appearance,  will  make  a 
judgment  thereupon  binding  when  attacked  collaterally;4  and, 
so  it  has  been  held,  will  a  rule  of  law,  established  by  the 
courts  of  a  State,  that  an  appeal  from  an  order  denying  a 
motion  to  set  aside  the  service  of  a  summons  is  equivalent  to  a 
general  appearance.5  It  has  even  been  held  that  in  the  case  of 
a  foreign  corporation,  where  the  validity  of  the  service  has  been 
contested  and  decided  against  the  defendant,  such  decision  is 
binding  collaterally.6      The  judgment  of  the   same   court,7  or 

ler,    218   U.    S.   258,   263,   54   L.   ed.  belonged,    as    against   a    creditor    of 

1032,     1038;     citing     Whiteside     v.  the    alleged   partner   who   sought   to 

Haselton,  110  U.  S.  296,  301,  28  L.  recover   the   property   from   the  dis- 

ed.  152,  154.     See  Atlas  Ry.  Supply  tributees,    since   the   Probate   Court 

Co.   v.    Lake   &    River   Ry.    Co.,    134  had  no  jurisdiction  to  bring  in  the 

Fed.    503;    Rarstow   v.    Recket,    110  proper  parties   and  adjudicate  that 

Fed.  S26.     See  infra,  §  477.  question.     Rartleson  v.  Feidler,  149 

§  186.     lUlpian,  liber  42,  tit.  20  Fed.  299. 

et    leg.    1  :      "Res   judicata    dicitur,  8  Simon   v.   Southern   Ry.   Co.,   C. 

quae   finem    controversariarum   pro-  C.  A.,  195  Fed.  56;  supra,  §  164. 

nunciatione  judicis  accipit:  //uod  vel  4  York  v.  Texas,  137  U.  S.  15,  34 

condrmnatione,  vel  absolutione  con-  L.  ed.  604. 

tingit."  5  Chinn  v.  Foster-Milburn  Co.,  195 

2  Story's  Eq.  PL,  §  778.    A  decree  Fed.  158.  162. 

of  distribution  amongst  the  heirs  of  6  Chinn  v.  Foster-Milburn  Co.,  195 

a  decedent,  made  by  a  Probate  Court  Fed.  158,  163.     Rut  see  Harkness  v. 

of  Alaska,  was  held  not  to  be  a  con-  Hyde,  98  U.  S.  476,  25  L.  ed.  237; 

elusive  adjudication  that  a  partner-  supra.  §  164. 

ship  did  not  exist  between  decedent  'Johnson  Co.  v.  Wharton.  152  U. 

and  ar.other.  to  whom  the  property  S.  252.  38  L.  ed.  429. 


§  186] 


HEX    AD  JUDICATA. 


653 


of  another  court  of  the  United  States,8  or  of  a  court  of  one  of 
the  United  States,9  with  jurisdiction  of  the  subject-matter  and 
of  the  parties,  in  which  the  defendant  was  duly  served  or 
voluntarily  appeared,  is,  with  the  exceptions  hereinafter  noted, 
and  in  the  absence  of  fraud,  conclusive  between  the  parties  and 
their  privies  as  to  all  matter  pleaded  and  which  might  have 
been  tried  in  the  case.  The  same  rule  applies  to  the  judgment 
of  a  court  of  an  Indian  nation  in  the  Indian  Territory  10  and 
to  the  judgment  of  an  alien  court  in  a  country,  such  as  Ensr- 
land  and  Canada,  the  laws  of  which  give  like  effect  to  a  judg- 
ment of  a  court  in  the  United  States.11  A  domestic  or  foreign 
judgment  in  rem  adjudicating  the  title  to  land  or  to  a  ship  or 
to  other  movable  property  within  the  custody  of  the  court,  is 
in  the  absence  of  extraordinary  circumstances,12  conclusive, 
and  will  not  be  re-examined.13  An  adjudication  in  bankruptcy 
against  persons  who  were  charged  as  partners  is,  for  the  pur- 
pose of  the  administration  of  the  property,  good  against  all 
the  world;  but  it  is  not  res  adjudicata,  as  to  the  existence  of 
the  partnership,  against  parties  who  were  not  heard,  although 
they  appeared  therein.14  An  adjudication  of  residence  upon 
an  application  for  probate  is  not  binding  upon  the  courts  of 
another  State  in  a  proceeding  to  collect  an  inheritance  tax.15 
A  foreign  judgment  determining  the  status  of  persons  subject 
to  the  jurisdiction,  such  as  a  decree  confirming  a  marriage  or 
granting  a  divorce,  is  followed  unless  contrary  to  the  policy 
of  the  law  of  this  country.16    A  foreign  judgment  under  which 


8  Kessler  v.  Eldred,  206  U.  S.  285,       625;  Hilton  v.  Guyot,  159  U.  S.  113, 


51  L.  ed.  1065. 

9  Clay  v.  Deskins,  C.  C.  A.,  63 
Fed.  330 ;  Hennessy  v.  Tacoma 
Smelting  &  Refining  Co.,  C.  C.  A., 
129  Fed.  240. 

WStandley  v.  Roberts,  59  Fed. 
S36. 

11  Ritchie  v.  McMullen,  159  U.  S. 
235,  40  L.  ed.  133;  Giae  v.  Wester- 
velt,   116  Fed.  1017. 

12  See  Windsor  v.  McVeigh,  93  U. 
S.  274,  23  L.  ed.  914. 

13  Williams  v.  Armroyd,  7  Cranch, 
423,  432.  3  L.  ed.  392,  395;  Hudson 
v.  Guestier,  4  Cranch,  293,  2  L.  ed. 


167,  40  L.  ed.  95,  109. 

HManson  v.  Williams,  213  U.  S. 
453.  53  L.  ed.  S69. 

15  Tilt  v.  Kelsey,  207  U.  S.  43,  52 
L.  ed.  95. 

l6Cheely  v.  Clayton,  110  U.  S. 
701,  28  L.  ed.  298;  Hilton  v.  Guyot, 
159  U.  S.  113,  167,  40  L.  ed.  95,  109. 
It  has  been  held  that  the  decree  of 
a  foreign  court  concerning  the 
awarding  the  custody  of  a  child  is 
not  conclusive,  but  is  a  fact  or  cir- 
cumstance bearing  upon  the  discre- 
tion to  be  exercised,  without  dic- 
tating or  controlling  it.     People  ex 


654 


ANSWERS. 


[§  ISO 


a  person  has  been  compelled  to  pay  money  is  said  to  be  so  far 
conclusive  that  the  justice  of  the  payment  cannot  be  impeached 
in  another  countrv,  and  that  the  defendant  cannot  be  com- 
pelled  to  pay  it  again.17  So,  it  has  been  held,  are  foreign  judg- 
ments discharging  obligations  between  citizens  or  residents  of 
the  foreign  country  and  therein  contracted.18  But  it  was  held 
by  a  majority  of  the  Supreme  Court:  that,  otherwise,  the  judg- 
ment in  personam  of  a  court  in  a  foreign  country  where  a 
similar  judgment  of  a  court  of  this  countrv  would  be  consid- 
ered as  only  prima  facie  evidence  of  the  facts  therein  adjudi- 
cated, when  one  of  the  parties  is  an  American  citizen  and  the 
other  a  citizen  of  that  foreign  country;   is  only  prima  facie 


rel.  Allen  v.  Allen.  105  N.  Y.  628; 
Morrell  v.  Morrell,  S3  Conn.  470.  77 
Atl.  1 :  Woodworth  v.  Spring.  4  Al- 
len (Mass.)  321;  Hanrahan  v.  Sears, 
72  X.  H.  71;  in  all  of  which  the 
decree  was  followed:  Ex  parte  Stew- 
art. 137  N.  Y.  202,  in  which  the 
decree  was  not  followed.  A  decree 
of  divorce,  obtained  upon  service  by 
publication,  must  be  respected  when 
it  was  made  by  a  court  of  the  State 
of  the  matrimonial  domicile.  Atber- 
ton  v.  Atherton,  181  U.  S.  155,  45 
L.  ed.  704;  Thompson  v.  Thompson, 
22G  U.  S.  551,  57  L.  ed.  — .  The 
State  in  which  the  parties  were  mar- 
ried and  where  they  resided  after 
their  marriage  and  the  party  who 
brings  the  suit  still  resided  when 
the  suit  was  brought  is  the  matri- 
monial domicile.  Ibid.  Notice,  by 
personal  service  or  by  publication, 
must  be  given  to  the  defendant. 
Thompson  v.  Thompson.  226  U.  S. 
551,  57  L.  ed.  — .  The  judgment  is 
valid  although  the  order  for  service 
by  publication  was  granted  by  an 
affidavit  that  the  defendant  was  a 
non-resident,  made  upon  informa- 
tion and  belief,  when  she  was  in 
fact  a  resident  of  the  State:  pro- 
vided that  the  law  of  the  State 
permits   orders    to   he   granted    upon 


affidavits  so  made.  Thompson  v. 
Thompson.  226  U.  S.  551,  57  L.  ed. 
— .  Irregularities  in  such  affidavit, 
in  the  manner  of  stating  material 
facts,  do  not  invalidate  the  judg- 
ment, provided  that  the  facts  are 
actually  stated  therein,  although  the 
judgment  might  be  voidable  because 
of  those  defects  by  a  suit  brought 
for  that  purpose.  Ibid.  Otherwise, 
when  no  personal  service  within  the 
jurisdiction  is  made  upon  the  de- 
fendant and  such  defendant  is  a 
nonresident,  the  decree  of  divorce 
is  invalid  unless  the  defendant  ap- 
pears. Haddock  v.  Haddock,  201 
l\  S.  562,  50  L.  ed.  867,  5  Ann. 
Cas.  1. 

17  Hilton  v.  Guyot.  159  U.  S.  113, 
168,  40  L.  ed.  95,  110.  per  Gray.  J., 
citing  Gold  v.  Canham,  2  Swanst. 
325;  s.  c.  1  Cases  in  Ch.  316:  Tarle- 
ton  v.  Tarleton.  4  M.  &  S.  20; 
Konitzky  v.  Meyer.  49  X.  Y.  571. 

18  Burrows  v.  Jamereaux  or  Jami- 
neau.  Mosely.  1:  S.  C,  2  Stra.  733; 
s.  c,  2  Eq.  Cas.  Alir.  525.  pi.  7; 
S.  C,  12  Yin.  Ahr.  87,  pi.  9;  S.  C, 
Sel.  Cas.  in  Ch.  69;  s.  c,  1  Dick. 
-15:  May  v.  Breed,  7  dish.  (Mass.) 
1'5,  54  Am.  Dec.  700;  Hilton  v. 
Guyot,  159  C.  S.  "113,  168,  40  L. 
ed.  95,  110. 


§  186] 


EES   AD  JUDICATA. 


65i 


evidence  and  not  conclusive.19  A  judgment  at  common  law  is  a 
bar  to  a  bill  in  equity,  based  upon  the  facts  there  pleaded  or 
offered  in  evidence;  unless  a  claim  or  defense  is  pleaded  in 
equity,  or  which  the  former  court  could  not  have  taken  cogni- 
zance.20 A  decree  or  judgment  of  a  State  court  between  the 
same  parties  in  a  suit  duly  commenced  before  that  in  a  Federal 
court  is  res  adjudicata  in  the  latter,21  although  the  question 
was  one  of  general  commercial  law  and  jurisprudence  and  the 
case  was  decided  upon  a  demurrer;22  but  not,  it  has  been  held, 
an  order,  judgment  or  decree  of  a  State  court  in  a  suit  insti- 
tuted subsequent  to  the  beginning  of  that  in  a  court  of  the 
United  States.23  Where  a  suit  was  first  instituted  the  decree 
therein  is  conclusive  although  not  entered  until  after  the  pen- 
dency of  that  in  which  it  is  pleaded  or  offered  in  evidence.24 
The  judgment  of  a  State  court  has  no  greater  weight  as  res 
adjudicata,  than  would  be  given  to  the  same  by  a  State 
tribunal.25  A  nonsuit,  although  involuntary,26  or  even  when 
taken  after  the  highest  court  of  the  State  has  decided  that  the 
plaintiff  has  no  cause  of  action,  is  not  conclusive  in  a  subse- 


ts Hilton  v.  Guyot,  159  U.  S.  113, 
40  L.  ed.  95;  Kilham  v.  Wilson,  C. 
C.  A.,  112  Fed.  5G5;  Eastern  Bldg. 
&  L.  Ass'n  v.  Welling,  116  Fed.  100. 
But  see  Cruz  v.  O'Boyle,  197  Fed. 
824. 

20  Commercial  Union  Assur.  Co., 
L"d,  v.  N.  J.  Rubber  Co.,  64  N.  J. 
Eq.  338,  51  Atl.  451.  A  judgment 
for  nominal  damages,  in  an  action 
at  law  for  a  breach  of  contract,  was 
beld  to  be  not  a  bar  to  a  suit  for 
specific  performance.  Slaughter  v. 
La  Compagnie  Francaise,  113  Fed. 
21. 

21  Clay  v.  Deskins,  C.  C.  A.,  63 
Fed.  330;  Hennessy  v.  Tacoma 
Smelting  &  Refining  Co.,  C.  C.  A., 
129  Fed.  240;  Susquehanna  Coal  Co. 
v.  Mayor,  etc.,  of  South  Amburg, 
184  Fed.  941  ;  Chinn  v.  Foster-Mil- 
burn  Co.,  195  Fed.  158;  Converse 
v    Stewart,  C.  C.  A.,  197   Fed.  152. 


22  Fuller  v.  Hamilton  County,  53 
Fed.  411. 

23  Blydenstein  v.  N.'Y.  S.  &  Tr. 
Co.,  59  Fed.  12;  Sharon  v.  Terry, 
1  L.R.A.  572,  36  Fed.  337,  supra, 
§§  9,  10.  But  see  Insurance  Co.  v. 
Harris,  97  U.  S.  331,  24  L.  ed.  959. 

24  David  Bradley  Mfg.  Co.  v. 
Eagle  Mfg.  Co.,  C.  C.  A.,  57  Fed. 
980;  s.  c,  58  Fed.  721. 

25  Union  &  Planters'  Bank  v. 
Memphis,  1S9  U.  S.  71,  47  L.  ed. 
712;  Covington  v.  First  Nat.  Bank, 
198  U.  S.  100,  49  L.  ed.  963;  Glencoe 
Granite  Co.  v.  City  Tr.,  S.  D.  &  S. 
Co.,.  C.  C.  A.,  118  Fed.  386;  John 
Th  Park  &  Sons  Co.  v.  Bruen,  139 
Fed.  698:  Harrison  v.  Remington 
Paper  Co..  C.  C.  A.,  3  L.R.A.  (N.S.) 
954,  140  Fed.  385,  5  Ann.  Cas.  314. 

26  Homer  v.  Brown,  16  How.  354, 
14  L.  ed.  970:  Woodward  v.  David- 
son. 150  Fed.  840. 


656 


ANSWERS. 


[§  186 


quent  action  upon  the  same  facts,27  and  the  iulings  in  such  a 
case,  even  if  made  by  the  appellate  tribunal  are  not  binding 
in  a  second  suit,  brought  in  another  jurisdiction.28  A  decree 
of  a  court  of  equity  will  not  be  a  bar  if  it  resulted  in  the  dis- 
missal of  a  bill  without  prejudice;29  or  for  want  of  prose- 
cution-80 or  for  multifariousness,31  or  for  a  slip  in  practice.32 
such  as  a  dismissal  upon  a  verified  answer  when  an  oath  by  the 
respondent  had  not  been  waived ; 33  or  because  the  court  had 
no  power  to  grant  the  relief,34  or  by  consent  before  a  hearing,85 
even,  it  has  been  held,  when  it  provides  that  each  party  shall 
pay  his  own  costs;36  or  by  the  former  English  practice,  if  it 
had  not  been  signed  and  enrolled,  although  it  could  then  be  in- 
sisted on  by  answer  as  a  good  defense.37  Xor  does  a  judgment 
against  the  plaintiff  upon  his  default  have  that  effect.38  But  a 
decree  upon  a  bill  taken  as  confessed  concludes  the  defendant 
in  another  suit,39  and  the  failure  of  a  party  to  offer  evidence 


27  Gardner  v.  Michigan  Cent.  R. 
Co.,  150  U.  S.  349,  37  L.  ed.  1107. 
But  see  Williford  v.  Kansas  City, 
M.  &  B.  R.  Co.,  154  Fed.  514. 

28  Gardner  v.  Michigan  Cent.  R. 
Co.,  150  U.  S.  340,  37  L.  ed.  1107; 
Gilbert  v.  Am.  Surety  Co.,  C.  C.  A., 
122  Fed.  499;  Harrison  v.  Reming- 
ton Paper  Co.,  C.  C.  A.,  3  L.U.A. 
(N.S.)  954,  140  Fed.  385,  5  Ann. 
Cas.  314;  Illinois  Cent.  R.  R.  Co.  v. 
Benz,  108  Term.  070,  58  L.R.A.  690, 
91   Am.  St.  Rep.  763. 

29  Durant  v.  Essex  Co.,  7  Wall. 
107,  19  L.  ed.  154;  House  v.  Mullen, 
22  Wall.  42,  46,  22  L.  ed.  838.  839; 
Northern  Pac.  Ry.  Co.  v.  St.  Paul. 
M.  &  M.  Ry.  Co.,  47  Fed.  536:  infra, 
§  377. 

30  American  D.  R.  B.  Co.  v.  Shel- 
don, 17  Blatchf.  208;  s.  c,  4  Bann. 
&  A.  551;  Keller  v.  Stolzenbach,  20 
Fed.  47:  Conn  v.  Penn,  5  Wheat. 
424,  427,  5  L.  ed.  125;  Badger  v. 
Badger.  1  Cliff.  241  ;  Welsbach  Light 
Co.  v.  Colin,  181  Fed.  122. 

31  Young  v.  U.  S.,  176  Fed.  612. 

32  Durant    v.    Essex    Co.,    7    Wall. 


107.  109,  19  L.  ed.  154,  156;  House 
v.  Mullen,  22  Wall.  42,  46.  22  L. 
ed.  838,  839;  Walden  v.  Bodley.  14 
Pet.  158.  10  L.  ed.  399;  Gist  v. 
Davis,  2  Hill  Ch.  (S.  C.)  335; 
Grubb  v.  Clayton,  2  Hayw.  (X.  C.) 
378;  Hughes  v.  U.  S..  4  Wall.  232, 
18  L.  ed.  303.  See.  however.  Starr 
v.  Stark,  1  Saw.  270:  Anon..  3  Atk. 
809;  Story's  Eq.  PL,  §  790. 

33Speckart  v.  Schmidt.  190  Fed. 
499. 

34  Murray  v.  City  of  Pocotello, 
226  U.  S.  318,  57  L.  ed.  — . 

35  Marshall   v.  Otto,  59   Fed.  249. 

36  Pvincon  Water  &  Power  Co.  v. 
Anaheim  Union  Water  Co.,  115  Fed. 
543. 

3V  Anon.,  3  Atk.  809;  Story's  Eq. 
PI..  §  790. 

38  Gabrielson  v.  Waydell,  67  Fed. 
342. 

39  Last  Chance  Min.  Co.  v.  Tyler 
Min.  Co.,  157  U.  S.  683.  39  L.  ed. 
859;  Reedy  v.  Western  El.  Co.,  C. 
C.  A.,  83  Fed.  709;  Thompson  v. 
Wooster.  114  U,  S.  104.  111.  112, 
29  L.  ed.   105,   107,   108;    Ogilvie  v. 


§  186] 


RES   AD  JUDICATA. 


G57 


upon  an  issue  does  not  make  the  adjudication  less  conclusive 
against  him.40  The  fact  a  writ  of  error  was  dismissed  by  the 
appellate  court  without  a  decision  there  upon  the  merits  does 
not  make  the  decision  below  the  less  conclusive.41  And  where 
a  bill  was  dismissed  for  want  of  equity  as  well  as  for  technical 
objections  to  the  same,  the  decree  was  res  adjudicata  to  a  subse- 
quent suit  in  another  court  where  such  objections  were  not 
recognized.42  Where  a  decree  of  dismissal  does  not  disclose 
the  ground,  the  presumption  is  that  the  dismissal  was  upon  the 
merits;  but  this  is  not  conclusive;  and  when  the  decree  is 
pleaded  in  bar  of  a  subsequent  suit,  the  plaintiff  may  plead 
facts  showing  that  it  was  not.43  A  judgment  dismissing  an 
action  upon  plaintiff's  refusal  to  amend  is  a  judgment  upon  the 
merits.44  A  decree  sustaining  a  demurrer  to  a  lull  is  a  bar  to  a 
subsequent  bill  between  the  same  parties  involving  the  same 
subject-matter  unless  the  bill  is  dismissed  without  prejudice ; 45 
and  a  final  decree  overruling  a  demurrer  operates  as  an  estoppel 
upon  the  defendant.46     In  the  absence  of  statutory  authority, 


Heme,  13  Ves.  563.  Where,  in  an 
action  on  contract,  defendant  plead- 
ed a  counterclaim,  to  which  plaintiff 
replied  by  plea  in  abatement,  al- 
leging another  suit  pending  between 
the  same  parties  in  the  federal  court 
on  the  counterclaim,  which  plea  was 
clearly  invalid,  and  on  the  trial  de- 
fendant failed  to  appear,  whereupon 
evidence  was  introduced  by  plaintiff 
to  rebut  the  merits  of  the  counter- 
claim, but  no  evidence  was  given 
to  sustain  the  plea  in  abatement; 
held,  that  a  judgment  dismissing  the 
counterclaim  would  not  be  presumed 
to  have  been  based  on  the  plea  of 
abatement,  but  was  on  the  merits, 
and  therefore  was  res  adjudicata. 
Groton  Bridge  &  Mfg.  Co.  v.  Clark 
Pressed  Brick  Co.,  C.  C.  A.,  120 
Fed.  552. 

40  Confectioners'  Mach.  &  Mfg.  Co. 
v.    Racine    Eng.    &    Mach.    Co.,    103 
Fed.  014;  Delaware,  L.  &  W.  R.  Co. 
v.  Troxeli.  C.  C.  A„  200  Fed.  44. 
Fed.  Prac.  Vol.  I.— 42. 


« Johnson  v.  Herold,  1G1  Fed. 
593. 

42  Venner  v.  Chicago  City  Ry. 
Co.,  195  Fed.  788.  Where  the  court 
had  no  power  to  grant  relief,  the 
judgment  was  not  res  adjudicata 
because,  in  its  opinion,  it  expressed 
its  views  against  the  complainant 
upon  the  merits. 

43  Stratton  v.  Essex  County  Park 
Commission,   164   Fed.  901. 

44  Lindsley  v.  Union  Silver  Star 
Min.  Co.,  C.  C.  A.,  115  Fed.  46. 

45  Northern  Pac.  Ry.  Co.  v. 
Slaght.  205  U.  S.  122.  51  L.  ed.  738; 
Mcs-dnger  v.  New  Eng.  M.  L.  T.  Co., 
59  Fed.  416';  Bradford  Belting  Co. 
v.  Kisinger-Tson  Co.,  C.  C.  A..  113 
Fed.  811.  Of.  Lindsley  v.  Union 
Silver  Star  Min.  Co.,  C.  C.  A.,  115 
Fed.  46:  Ohio  River  R.  Co.  v.  Fish- 
er, C.  C.  A.,  115  Fed.  929:  Spcrry  & 
Hutchinson  Co.  v.  City  of  Taeonia, 
199   Fed.  853. 

46  Fuller  v.  Hamilton  Co.,  53 
Fed.  411. 


65S 


ANSWLUS. 


[§  186 


a  decree  of  a  State  court  of  equity  is  void  which  declares  to  be  in- 
valid a  conveyance  of  land  beyond  its  jurisdiction,  but  does  not 
direct  a  reconveyance ;  and  such  a  decree  does  not  bind  a  court 
within  the  jurisdiction  of  which  such  land  is  situated.47  So,  it 
has  been  held,  is  a  decree  foreclosing  a  mortgage  upon  and 
selling  property  beyond  the  territorial  jurisdiction,  unless  it 
compels  the  mortgagor  or  the  trustee  of  the  mortgage  to  execute 
a  conveyance  to  the  purchaser.48  Xo  judgment  or  decree 
rendered  after  a  proceeding  not  in  rem,  in  which  the  defendant 
therein  was  not  served  with  process  within  the  jurisdiction;4' 
or  in  which  the  unsuccessful  party  was  denied  a  hearing;50 
or  some  such  other  gross  injustice  was  perpetrated  as.  to  render 
the  so-called  judicial  proceeding  not  due  process  of  law, — is  of 
any  effect.  Judgments  or  decrees  obtained  by  fraud  are  not 
conclusive  when  properly  impeached,51  but  it  has  been  held 
that  they  cannot  be  attacked  collaterally.52  A  judgment  of  a 
court  of  the  United  States  cannot  be  attacked  collaterally  be- 
cause the  record  does  not  show  the  necessary  difference  of 
citizenship  of  the  parties  or  that  a  Federal  question  was  in- 
volved.53    In  general,  a  decree  which  is  interlocutory,  such  as 


47  Carpenter  v.  Strange,  141  U. 
S.  87,  35  L.  ed.  640.  But  see  Eg. 
Rule  8. 

48  Lynde  v.  Columbus,  6.  &  K. 
Ry.  Co..  57  Fed.  993;  Farmers'  L. 
&  Tr.  Co.  v.  Postal  Tel.  Co.,  55 
Conn.  334,  3  Am.  St.  Rep.  53,  s.  c, 
11  Atl.  184;  Mercantile  Tr.  Co.  v. 
Kanawha  &  O.  Ry.  Co.,  39  Fed.  337. 
But  see  Muller  v.  Dows,  94  U.  S. 
444.  24  L.  ed.  207;  supra,  §  61,  in- 
fra, §  399. 

49  Pennoyer  v.  Xeff,  95  U.  S. 
714,  24  L.  ed.  565;  Life  Ins.  Co.  v. 
Bangs,  103  U.  S.  780,  26  L.  ed.  608; 
St.  Clair  v.  Cox,  106  U.  S.  350,  27  L. 
ed.  222;  Klenk  v.  Byrne,  143  Fed. 
1008.  See  Clark  v.  Roller,  199  U. 
S.  541.  50  L.  ed.  300.  Where  the 
defendant  had  appeared  specially  to 
challenge  the  jurisdiction,  and  the 
jurisdiction  had  been  sustained;  it 
was    held,    that    the    decision    could 


not  be  collaterally  disputed.  Phelps 
v.  Mutual  Reserve  Fund  Life 
Ass'n.,  C.  C.  A.,  61  L.R.A.  717,  112 
Fed.  453.  As  to  decrees  in  rem,  see 
The  James  G.  Swan,  106  Fed.  94. 

50Bischoff  v.  Wethered,  9  Wall. 
812,  19  L.  ed.  829;  Windsor  v.  Mc- 
Veigh, 93  U.  S.  274,  23  L.  ed.  914; 
Bradstreet  v.  Neptune  Ins.  Co.,  3 
Sum.  601.  See  Hilton  v.  Guyot,  159 
L\  S.  113,  204,  205,  40  L.  ed.  95, 
122,   123. 

51  Pac.  R.  Co.  of  Mo.  v.  Mo.  Pac. 
Ry.  Co.,  Ill  IK  S.  505.  28  L.  ed.  498. 

52  Peninsular  Iron  Co.  v.  Eels, 
68  Fed.  24,  35.  36;  Christmas  v. 
Russell.  5  Wall.  290.  305,  18  L.  ed. 
475,  479;  Mawell  v.  Stewart,  22 
Wall.  77,  22  L.  ed.   564. 

53  Kempe's  Lessee  v.  Kennedy.  5 
Cranch,  173,  185,  3  L.  ed.  70.  73; 
Skillern's  Ex'rs  v.  May's  Ex'rs,  6 
Cranch  267,  3  L.  ed.  220;    Cameron 


186] 


EES   AD  JUDICATA. 


659 


a  decree  for  an  injunction  and  an  accounting  because  of  the 
infringement  of  a  patent,54  is  not  a  bar,  for,  until  the  final 
decree  in  the  cause,  it  is  subject  to  revision  by  the  court  which 
entered  it.55  When  no  formal  judgment  has  been  entered  upon 
a  verdict  or  findings,  there  is  no  adjudication.56  In  certain 
cases  orders  which  finally  determine  the  rights  of  parties, 
such  as  an  order  of  interpleader,  are  conclusive  in  subsequent 
litigation.57  It  has  been  held  :  that  a  judgment  appointing  a 
receiver,  with  power  to  sue  in  any  court  of  any  State  or  of  the 
United  States,  estops  a  party  duly  served  with  process  therein 
from  subsequently  disputing  the  right  of  such  receiver  to  sue 
in  any  of  such  other  courts ; 5S  that  an  order  fixing  an  attorney's 
fees,  upon  a  motion  for  his  substitution,  is  not  an  adjudication 
which  will  support  an  action  at  law,  brought  in  another  Federal 


v.  McRobcrts,  3  Wheat.  591,  4  L.  ed. 
467 ;  Des  Moines  Xav.  Co.  v.  Iowa 
H.  Co.,  123  U.  S.  552,  557,  559,  31 
L.  ed.  202,  204,  205;  Dowell  v.  Ap- 
plegate,  152  U.  S.  327,  337-341,  38 
L.  ed.  463,  467,  467,  468.  Pullman's 
P.  C.  Co.  v.  Washburn,  66  Fed.  790. 
(■'f.  Empire  State-Idaho  Min.  &  De- 
veloping Co.  v.  Han  ley,  205  U.  S. 
225,  51  L.  ed.  779. 

54  Australian  Knitting  Co.  v. 
Gormly,  138  Fed.  92;  Whittemore 
Bros.  &  Co.  v.  World  Polish  Mfg. 
Co.,  159   Fed.  480. 

55  David  Bradley  Mfg.  Co.  v. 
Eagle  Mfg.  Co.,  58  Fed.  721 ;  in- 
fra, §  318;  Reinecke  Coal  Min.  Co. 
v.  Wood,  112  Fed.  477;  Dady  v. 
GeoVgia  &  A.  Ry..  112  Fed.  838; 
vtifrd,  §  443.  In  Mitchell  v.  Por- 
ter, C.  C.  A..  194  Fed.  49,  held 
that  an  order  before  trial  denying  a 
motion  to  discharge  the  defendant 
from  custody  under  civil  process 
was  not  res  judicata  upon  a  motion 
to  strike  from  1  he  judgment  upon 
an  amended  complaint  a  provision 
directing    his    arrest. 

56  Oklahoma     City    v.    McMaster, 
196    U.   S.    529,    49    L.   ed.   587.      It 


has  been  held:  that  the  following 
entries  in  the  docket,  although  in- 
definite, sufficiently  indicated  that 
the  action  proceeded  to  final  judg- 
ment :  After  the  title  of  the  case 
and  notations  of  adjournments: 
"Trial  commenced  January  18,  1887, 
and  concluded  January  27,  ■  1887, 
and  decided  in  favor  of  the  defend- 
ant. Costs  assessed  against  plain- 
tiff, $1,389.15.  Rents  and  money, 
$1,340.  Total  amount,  $2,729.15. 
Appeal  to  the  Supreme  Court  grant- 
ed." In  the  Supreme  Court:  "Court 
met  pursuant  to  adjournment. 
The  bench  all  present.  The  evi- 
dence in  the  case  was  then  con- 
cluded, and,  after  some  arguments 
by  counsel  on  both  sides,  the  case 
was  submitted  to  the  court  for 
their  decision.  The  court,  after 
some  deliberation,  decided  that 
the  will  is  good,  and  hereby  con- 
firms tine  decision  of  the  lower 
court."  Holford  v.  James,  136 
Fed.    553. 

57  Insurance     Co.     v.     Harris,     97 
U.  S.  331.  24  L.  ed.  959. 

58  Burr   v.    Smith,    113    Fed.    858; 
supra,  §§  35,  93. 


i;t;o 


ANSWERS. 


[§   186 


district;59  that  a  decree  for  alimony  and  costs  will  not  support 
an  action  in  another  State  in  respect  to  future  payments,  for 
which  it  provides,  but  as  to  which  it  remains  subject  to  modifi- 
cation at  any  time,  in  the  discretion  of  the  court  that  rendered 
it;60  that  a  decree  was  not  final,  which  confirmed  and  adopted  a 
commissioners'  report  in  partition,  recommending  a  conveyance 
of  part  of  the  land,  a  sale  of  the  rest,  and  a  distribution  of 
the  proceeds,  as  thereafter  ordered  upon  the  confirmation  of 
the  sale.61  Where  several  suits  ancillary  to  each  other  were 
brought  in  different  districts,  it  was  said  that  the  validity  of  a 
decree  in  one  district  could  not  be  questioned  by  the  same 
parties  in  the  ancillary  suit  in  another  district.62  A  judgment 
of  acquittal  upon  an  indictment  is  a  bar  to  a  suit  by  the  United 
States  to  recover  a  penalty  for  the  same  offense,63  but  not  to  a 
civil  suit  to  recover  damages;64  or  an  injunction  upon  a  charge 
of  the  same  facts.65  A  decree  of  deportation,  rendered  by  a 
United  States  Commissioner,  was  held  to  be  an  adjudication 
in  rem,  binding  in  a  criminal  prosecution  against  a  stranger  to 
the  proceeding.66  Where  the  parties  and  the  property  in  dis- 
pute are  the  same  arid  the  plaintiff  claims  the  same  right  as  in 
the  former  suit,  the  prior  adjudication  is  conclusive  both  as  to 
all  questions  which  were  actually  decided  and  as  to -all  which 
might  have  been  considered.67     But  where  there  is  a  different 


59  Du  Bois  v.  Seymour,  C.  C. 
A.,  152  Fed.  GOO;  reversing  145 
Fed.  1003. 

60  Israel  v.  Israel,  C.  C.  A.,  9 
L.R.A.lX.S.)  1168,  8  Ann.  Cas.  097, 
148  Fed.  576;  Valiquet  v.  Valiquet, 
177    Fed.    994. 

61  Clark  v.  Roller,  199  U.  S.  541, 
50    L.   ed.   300. 

62  Compton  v.  Jesups,  68  Fed.  263, 
282,  per  Taft,  J.  But  see  s.  c,  167 
U.  S.  1,  42  L.  ed.  55. 

63  Coffey  v.  U.  S.,  116  U.  S.  442, 
29  L.  ed.  686.  Cf.  U.  S.  v.  Oregon 
C.  Co.,   103   Fed.  549. 

64  Stone  v.  U.  S.,  167  U.  S.  178, 
42  L.  ed.  127.  As  to  the  rule  con- 
cerning judgments  of  the  courts  of 
the    Philippines,   see    Chantangeo   v. 


Ahaboa,  218  U.  S.  476,  54  L.  ed. 
1116. 

65  U.  S.  v.  Donaldson-Schultz  Co., 
C.  C.  A.,  148  Fed.  581;  revers- 
ing,  142    Fed.   300. 

66  U.  S.  v.  Hills,  124  Fed.  831. 
67M'Aleer  v.  Lewis,  75  Fed.  734; 

Xesbitt  v.  Riverside  Ind.  Dist.. 
144  U.  S.  610,  36  L.  ed.  562;  Dowell 
v.  Applegate,  152  U.  S.  327,  38  L. 
ed.  463;  Cromwell  v.  County  of  Sac, 
94  U.  S.  351,  24  L.  ed.  195;  Jaros 
H.  U.  W.  Co.  v.  Fleece  H.  U.  W. 
Co.,  65  Fed.  424;  Bissell  v.  Spring 
Valley  Tp.,  124  U.  S.  225,  31  L.  ed. 
411;  U.  S.  Tr.  Co.  v.  New  Mexico, 
183  U.  S.  535,  540,  46  L.  ed.  315, 
319;  Werlein  v.  New  Orleans,  177 
U.  S.  390,  44  L.  ed.  817;   Virginia- 


186] 


EES  AD  JUDICATA. 


661 


Carolina  Chemical  Co.  v.  Kirvfen, 
215  U.  S.  252,  54  L.  ed.  179;  Re 
Coffin,  146  Fed.  181;  Wood  v. 
Browning,  C.  C.  A.,  176  Fed.  273. 
It  has  been  held :  that,  where,  in  a 
suit  upon  coupons,  they  and  the 
bonds  from  which  they  were  cut 
were  adjudged  to  be  invalid,  the  ad- 
judication bound  the  plaintiff  in  a 
subsequent  suit  upon  coupons  from 
the  same  bonds  which  fell  due 
later.  Bissell  v.  Spring  Valley 
Tp.,  124  U.  S.  225,  31  L.  ed. 
411;  Fitch  v.  Stanton  Tp.,  C.  C. 
A.,  190  Fed.  310;  Hickman  v.  Town 
of  Fletcher,  C.  C.  A.,  195  Fed.  907. 
That  in  a  similar  action  a  judgment 
that  the  bondholder  had  not  paid 
the  same  in  good  faith,  was  binding 
in  a  suit  upon  coupons  subsequent- 
ly maturing  Fitch  v.  Stanton  Tp., 
C.  C.  A.,  190  Fed.  310.  That  a  de- 
cision, that  a  tax  for  one  year  was 
void  because  the  property  taxed  was 
exempt,  was  conclusive  as  to  the  ex- 
emption of  the  property  when  taxed 
for  another  year.  New  Orleans  v. 
Citizens'  Bank,  167  U.  S.  371,  42 
L.  ed.  202 ;  Gunter  v.  Atlantic  Coast 
Line,  200  U.  S.  273,  291,  50  L.  ed. 
477,  486;  Goodenow  v.  Litchfield, 
59  Iowa,  226.  But  see  Keokuk  & 
W.  R.  Co.  v.  Missouri,  152  U.  S. 
301,  315,  38  L.  ed.  450,  456;  Daven- 
port v.  Chicago,  R.  &  P.  R.  Co.,  38 
Iowa,  633;  Memphis  City  Bank  v. 
Tennessee,  161  U.  S.  186,  40  L.  ed. 
664.  Cf.  Baldwin  v.  Maryland,  179 
U.  S.  220,  45  L.  ed.  160.  It  was 
held  otherwise,  where  it  was  the 
settled  rule  of  the  State  courts  that 
such  an  adjudication  was  not  an 
estoppel  between  the  parties,  as  to 
taxes  for  any  other  year.  Coving- 
ton v.  First  Nat.  Bank,  198  U.  S. 
100,  49  L.  ed.  963.  That  where  a 
controversy  has  arisen  between  the 
lessor  and  the  lessee  of  certain  cars, 
as    to    the    right   of    ownership   and 


possession  thereof  upon  the  termi- 
nation of  a  sublease,  and  a  suit  to 
which  the  lessor,  lessee  and  sub- 
lessee were  parties  has  been  brought 
to  determine  their  rights,  in  which 
it  was  adjudged  that  the  lessor 
owned  and  had  the  right  of  posses- 
sion of  the  cars,  and  compensation 
for  storage  of  them  after  the  end  of 
his  lease  was  awarded  to  the  sub- 
lessee; the  decree  was  res  adjudi- 
cata  as  to  the  lessee's  right  to  re- 
cover damages  from  the  sublessee 
for  the  detention  of  the  cars  after 
the  end  of  the  sublease.  O'Hara 
v.  Mobile  &  O.  R.  Co.,  75  Fed.  130. 
But  see  Chicago,  R.  I.  &  P.  Ry.  Co. 
v.  St.  Joseph  Depot  Co.,  92  Fed. 
22.  That  where,  on  the  reversal  of 
a  foreclosure  decree  after  a  sale 
thereunder,  the  court  below,  in  its 
action  upon  tne  mandate,  although 
it  reversed  the  decree  in  part,  con- 
firmed the  sale;  the  failure  of  the 
mortgagor  to  appeal  from  such  con- 
firmation rendered  it  res  adjudicaia 
so  that  another  suit  to  set  it  aside 
could  not  be  maintained.  Grape 
Creek  C.  Co.  v.  Farmers'  L.  &  Tr. 
Co.,  C.  C.  A.,  80  Fed.  200.  That  a 
judgment  dismissing  a  bill  to  en- 
force an  alleged  mechanics'  lien,  up- 
on the  ground  that  there  was  no 
lien,  was  a  bar  to  a  subsequent  suit 
by  the  alleged  lienor,  to  redeem 
property  sold  in  a  foreclosure  sale. 
Nat.  Foundry  &  Pipe  Works  v. 
O'Conta  City  Water-Supply,  C.  C. 
A.,  113  Fed.  793.  That  where,  upon 
a  decree  establishing  the  right  to  a 
trademark,  it  was  stipulated  that 
neither  the  defendant,  nor  its  cus- 
tomers, should  be  held  liable  for 
past  infringements,  the  complain- 
ant could  not  subsequently  bring 
a  suit  for  contributory  infringe- 
ment against  one  who  had  pre- 
viously furnished  the  former  de- 
fendant cartoons  containing  the  in- 


662 


ANSWERS. 


[§  186 


matter  in  dispute,  the  former  judgment  is  only  conclusive  of 
the  matters   which   were   actually   decided.68     "In  general,   a 


fringing  trademark.    Hillside  Chem- 
ical Co.  v.  Munson  &  Co.,  146  Fed. 
198.      That   a   decree   in    a   suit    for 
an    infringement    of    a    patent    does 
not    prevent   a    subsequent    suit    for 
infringement  of  the  same  patent  by 
the   same  defendant   through   a  new 
device,  although  the  cause  in  action 
therein   set    forth   might   have   been 
pleaded  by   a  supplemental  bill.    T. 
B.  Wood's  Sons  Co.  v.  Valley  Iron 
Works,    198    Fed.    869.      That    the 
judgment  of  a  Circuit  Court  of  the 
United  States,  in  an  action  for  the 
recovery  of  excessive  duties,  brought 
by    importers    against    a    collector, 
was  res  ad  judicata  against  the   im- 
porters   in    subsequent    proceedings 
before    the    Board    of    General    Ap- 
praisers.    U.  S.  v.  J.  G.  Johnson  & 
Co.,    145    Fed.    1018;    East    Tennes- 
see   Tel.    Co.    v.    Board    of    Council- 
men,   190  Fed.   346.     As  to  internal 
revenue   cases,   see  Johnson   v.  Her- 
old,    161    Fed.    563.      Questions    de- 
cided  upon    the    issue    of    a   manda- 
mus to  compel  the  payment  of  judg- 
ments  were   held   to  be   res  adjudi- 
cate   upon    an     application    to    en- 
force   a    later    judgment    so    far    as 
concerned  the  balances  of  the  form- 
er  judgments  therein   included,  but 
not    as   to   the   other   claims   on   the 
same.       Police     Jury     of     Jefferson 
County  v.  U.  S.  ex  rel.  Fisk,  60  Fed. 
240.     For  a  case  where  a  prior  de- 
cree was  held  to  conclusively  estab- 
lish  the  sufficiency  of  maps  filed  by 
a    railway  company,  see  So.  Pac.  R. 
Co.   v.  V.  S.,  168  U.  S.  1,  42  L.  ed. 
355.    For  a  case  where  a  decree  de- 
claring stock  to  be  invalid  was  said 
to    substantially    establish    the    in- 
validity  of   the   claim   to   pay   which 
the   stock   was  issued,  see  Townsend 


v.  St.  L.  &  S.  C.  &  Min.  Co.,  159 
U.  S.  21,  40  L.  ed.  61.  Where  a  di- 
rector was  one  of  the  defendants  to 
a  stockholder's  suit,  in  which  the 
complainant  succeeded,  and  the  de- 
cree directed  that  the  costs  and  ex- 
penses of  litigation  be  paid  out  of 
the  fund  that  was  there  recovered; 
it  was  held  that  such  decree  was 
conclusive  against  her  right  to  re- 
cover in  a  subsequent  suit  against 
such  director  the  proportion  thereof 
which  represented  her  stockholding 
interest.  Singer-Bigger  v.  Young, 
C.  C.  A.,  166  Fed.  852.  A  deficiency 
judgment  taken  by  a  trustee  in  a 
foreclosure  suit  does  not  prevent  the 
bondholders  from  suing  at  law  up- 
on their  bonds.  Mackay  v.  Ran- 
dolph Macon  Coal  Co.,  C.  C.  A.,  ITS 
Fed.  881. 

68  Last  Chance  Min.  Co.  v.  Tyler 
Min.  Co.,  157  U.  S.  683,  39  L.  ed. 
859;  Cromwell  v.  County  of  Sac.  94 
U.  S.  351,  24  L.  ed.  195;  So.  Pac. 
R.  R.  Co.  v.  U.  S.,  183  U.  S.  519, 
533,  46  L.  ed.  307,  314.  It  has  been 
held:  that  a  decree  of  a  court  of 
equity  dismissing  a  bill  to  remove 
a  cloud  on  title  is  not  so  far  res 
ad  judicata  as  to  prevent  the  plain- 
tiff from  succeeding  in  a  subse- 
quent action  of  ejectment  against 
the  same  defendant,  although  the 
court  of  equity  in  its  opinion 
stated  that  the  title  of  plaintiff 
was  bad.  Phelps  v.  Harris,  101 
U.  S.  370,  25  L.  ed.  855.  But  see 
State  v.  Buller,  47  Fed.  415.  That 
a  judgment  in  favor  of  defendants 
for  costs  in  a  replevin  suit,  where 
one  of  the  defenses  was  that  plain- 
tiff owned  only  on  undivided  inter- 
est in  the  property,  was  no  bar  to 
a     subsequent     action     by     plaintiff 


186] 


RES    ADJ  I'DICATA. 


668 


judgment  is  a  bar  to  a  second  attempt  to  reach  the  same 
result  by  different  medium  conchidendi."69  A  decree  for  a 
perpetual  injunction  is  not  conclusive  upon  the  right  to  commit 
the  act  enjoined  under  subsequent  legislation.70     The  fact  that 


against  one  of  these  defendants  for 
the  conversion  of  the  same  property. 
Benjamin  Schwarz  &  Sons  v.  Kenne- 
dy, 142  Fed.  1027.  That  a  judgment 
adjudicating  that  certain  parties 
had  no  property  rights  in  a  rail- 
road switch  on  the  land  of  another, 
but  that  they  were  entitled  to  car 
service  thereupon  during  the  con- 
tinuance of  a  contract  between  the 
land  owner  and  the  railroad,  was 
res  adjudicata  in  a  subsequent  suit 
between  the  parties,  or  their 
privies,  on  the  question  of  their 
property  rights  in  the  switch;  but 
did  not  affect  the  question  as  to 
whether  the  right  to  use  the 
switch  had  been  lost  by  the  abro- 
gation of  the  contract  between 
the  land  owner  and  the  railroad 
company.  Bedford-Bowling  Green 
Stone  Co.  v.  Oman,  134  Fed.  441. 
That  a  decree  denying  the  prayer 
of  a  petition  of  intervention,  which 
sought  to  establish  and  enforce  a 
landlord's  lien  for  the  rent  of  term- 
inal facilities,  did  not  preclude  the 
intervenor  from  filing  a  second  pe- 
tition asking  for  the  payment  of 
rent,  which  accrued  within  six 
months  prior  to  the  receivorship, 
out  of  the  earnings  of  the  road 
while  in  the  hands  of  the  receivers. 
Manhattan  Trust  Co.  v.  Sioux  City 
&  N.  R.  Co.,  102  Fed.  710.  That 
an  order  made  by  a  referee  on  a 
motion  directing  a  trustee  to  return 
to  the  purchaser  of  certain  casks  of 
whisky  sold  by  the  trustee  a  part 
of  the  purchase  money  on  account 
of  a  shortage  in  the  quantity,  where 
the  amount  involved  was  small,  the 


shortage  very  large  and  no  defense 
was  made,  does  not  constitute  an 
adjudication  of  the  terms  of  the 
contract  of  sale  which  will  bind  the 
trustee  when  a  much  larger  claim 
is  filed  involving  other  packages. 
In  re  Drumgoole,  140  Fed.  208. 
That  a  judgment  in  favor  of  a  de- 
fendants in  a  suit  brough  against 
him  and  others,  as  partners,  is  not 
a  bar  to  a  subsequent  action  on  the 
same  contract  against  him  individ- 
ually, when  no  statute  authorized 
the  affording  of  such  relief  in  the 
former  action.  Millie  Iron  Min.  Co. 
v.  McKinney,  C.  C.  A.,  172  Fed.  42. 
That  in  the  courts  of  the  United 
States  a  judgment  for  the  dam- 
ages caused  by  a  nuisance  such  as 
the  excessive  use  of  a  street  by 
a  railroad  company  does  not  bar 
a  subsequent  action  for  a  contin- 
uance of  the  same  nuisance.  Bal- 
timore &  P.  K.  Co.  v.  Fifth  Baptist 
Church,  137  U.  S.  568,  34  L.  ed. 
784.  But  where  a  street  has  been 
permanently  occupied  by  a  raMroad 
company  without  compensation  to 
the  owners,  all  the  damage  thereby 
caused  must  be  recovered  in  a  sin- 
gle action.  Shepherd  v.  Baltimore 
&  O.  R.  Co.,  130  U.  S.  426,  32  L.  ed. 
970. 

69  TJ.  S.  v.  Dalcour,  203  U.  S.  408, 
433,  51  L.  ed.  248.  251.  See  U.  S. 
v.  California  &  Oregon  Land  Co., 
192  U.  S.  355,  48  L.  ed.  476. 

70  Vicksburg  v.  Vicksburg  Water- 
works Co.,  206  U.  S.  496,  51  L.  ed. 
1155.  As-  to  the  effect  of  a  decree 
which  prescribes  the  language  of  a 
certain     statement    when    enjoining 


6G4 


ANSWERS. 


[§  186 


the  first  judgment  or  decree  in  the  matter  in  dispute  was  too 
small  to  permit  its  review  by  an  appellate  court  does  not  pre- 
vent it  from  being  a  bar  to  a  subsequent  suit  which  can  be 
brought  up  by  appeal  or  error.71  If,  upon  the  face  of  the  record, 
anything  is  left  to  conjecture  as  to  what  was  necessarily  in- 
volved and  decided,  there  is  no  estoppel  in  it  when  pleaded,  and 
nothing  conclusive  in  it  when  offered  as  evidence ; 72  but,  where, 
on  the  face  of  the  record,  it  appeared  that  the  judgment  might 
have  proceeded  upon  one  of  several  grounds,  evidence  was  ad- 
mitted to  show  aliunde  upon  which  of  these  grounds  it  did 
proceed,  so  as  to  make  it  effectual  as  an  estoppel.73  In  deter- 
mining what  was  decided,  the  pleadings  may  be  examined.74 
It  seems  also  that  the  opinion  may  be  considered.75  The 
opinion  of  the  court  upon  a  question  not  within  the  issues 
is  not  binding  in  subsequent  litigation.76  Questions  concluded  by 
a  decree  in  equity,  which  has  been  appealed,  are  determined 
by  the  opinion  of  the  appellate  court;  and  the  parties  are 
not  concluded  as  to  questions  left  open  by  such  opinion,  al- 
though they  were  passed  upon  by  the  court  below.77 

A  judgment  or  decree  is  binding  upon  both  parties  and  those 
in  privity  with  them.  Privies  are  all  who  have  acquired  the 
property  in  dispute  after  the  judgment  or  decree,78  or  pend- 
ing the  suit,79  provided,  in  the  latter  case  at  least,  that  com- 


the  violation  of  a  trademark,  see  G. 
&  C.  Merriam  Co.  v.  Saalfield,  C.  C. 
A..  190  Fed.  927. 

71  Johnson  Co.  v.  Wharton,  1  52 
U.  S.  252,  38  L.  ed.  429.  As  to  the 
effect  of  an  appeal,  see  Eastern  B.  & 
L.    Ass'n   v.  Welling,   103   Fed.  352. 

72  Russell  v.  Place,  94  U.  S.  606, 
610,  24  L.  ed.  214,  215;  McCarty  v. 
Lehigh  Valley  R.  Co.,  100  U.  S.  110, 
120.  40  L.  ed.  358,  362. 

73  Benjamin  Schwarz  &  Sons  v. 
Kennedy,  142  Fed.  1027. 

74  National  Foundry  &  Fipe 
Works  v.  Oconto  Water-Supply  Co., 
183  U.  S.  216,  46  L.  ed.  157;  U.  S. 
ex  rel.  Coffman  v.  Norfolk  &  W.  Ry. 
Co.,   114   Fed.  6S2,   686. 

75  National  Foundry  <S:  Pipe 
Works  v.  Oconto  Water-Supply  Co., 


1S3  U.  S.  216,  46  L.  ed.  157.  Mack 
v.  Levy,  60  Fed.  751 ;  U.  S.  ex  rel. 
Coffman  v.  Norfolk  &  W,  Ry.  Co., 
114  Fed.  682;  Millie  Iron  Min.  Co. 
v.  McKinney,  C.  C.  A.,  172  Fed.  42. 

76  Millie  Iron  Min.  Co.  v.  McKin- 
ney. C.  C.  A.,  172  Fed.  42. 

77  Russell  v.  Russell,  129  Fed.  434. 

78  Moor  v.  Welsh  Copper  Co.,  1 
Eq.  Cas.  Abr.  39 ;  Werlein  v.  New 
Orleans,  177  U,  S.  390,  44  L.  ed. 
817. 

79  Moor  v.  Welsh  Copper  Co.,  1 
Eq.  Cas.  Abr.  39.  Confectioners' 
Mach.  &  Mfg.  Co.  v.  Racine  Eng.  & 
Mach.  Co.,  163  Fed.  914.  G.  &  C. 
Merriam  Co.  v.  Saalfield,  C.  C.  A., 
190  Fed.  927,  where  those  who  suc- 
ceeded to  the  business  of  a  publisher 
pending    a    suit    against    him    were 


§  186] 


KES   ADJUDICATA. 


665 


pliance  was  made  with  the  necessary  statutory  requirements.80 
Ordinarily,  the  beneficiary  of  a  trust  is  bound  by  a  judgment 
against  his  trustee.81  An  ancillary  administrator  in  one  State 
is  not  in  privity  with  an  ancillary  administrator  in  another, 
and  a  judgment  against  the  one  is  not  a  bar  to  a  suit  by  the 
other.82  The  same  rule  applies  between  executors  of  a  will  and 
administrators  with  the  will  annexed  appointed  in  another 
jurisdiction.83  A  judgment  upon  the  merits  against  a  wid- 
ow, in  an  action  for  the  benefit  of  herself  and  children,  is 
not  a  bar  to  a  second  suit,  brought  by  her  as  administratrix,  for 
the  same  cause  of  action  under  the  Employers'  Liability  Act 83a 
when  the  recovery  would  be  for  the  benefit  of  the  same  persons 
and  the  defendant  is  the  same.83b  A  judgment  against  the 
husband  concerning  the  title  to  property  claimed  to  be  held  in 
community  was  held  to  estop  him  and  his  wife  in  a  subse- 
quent suit.830  A  mortgage  is  bound  by  judgments  against  the 
mortgagor  entered  before  the  mortgage   or  in  suits  pending 


held  to  be  bound  by  the  decree  sub- 
sequently therein  entered.  But  see 
Reinecke  Coal  Min.  Co.  v.  Wood, 
112  Fed.  477.  The  estoppel  can  be 
used  by  a  purchaser  of  the  subject- 
matter  pending  the  suit  and  before 
adjudication.  Carroll  v.  Gold- 
schmidt,  C.  C.  A.,  83  Fed.  508,  27 
C.  C.  A.  566;  Confectioners'  Mach. 
&  Mfg.  Co.  v.  Racine  Eng.  &  Mach. 
Co.,  163  Fed.  914.  919.  But  see 
Ingersoll  v.  Jewitt,  16  Blatchf.  378, 
Fed.  Cas.  No.  7039. 

80  Jones  v.  Smith,.  40  Fed.  314; 
infra,  §  375. 

81  Kent  v.  Lake  Superior  S.  C. 
Co.,  144  U.  S.  75,  36  L.  ed.  352; 
Rejall  v.  Greenhood,  92  Fed.  945. 
For  the  exceptions,  see  Goff  v.  Kel- 
ly, 74  Fed.  327 ;  Handlan  v.  Walker, 
C.  C.  A.,  200  Fed.  566.  in  bank- 
ruptcy, supra,  §  113. 

82  Brown     v.     Fletcher's     Estate. 

210  U.   S.   82:    Ingersoll    v.    Coram, 

211  U.  S.  335,  53  L.  ed.  208.  re- 
versing C.  C.  C,  148  Fed.  169,  and 


affirming  132  Fed.  168,  136  Fed. 
689. 

83  Brown  v.  Fletcher's  Estate,  210 
U.  S.  82,  28  Sup.  Ct.  702,  52  L.  ed. 
966 ;  Wilson  v.  Hartford  Fire  Ins. 
Co.,  C.  C.  A.,  164  Fed.  817.  A  Fed- 
eral court  followed  a  California 
statute  and  the  construction  of  the 
same  by  the  State  courts,  so  far 
as  to  hold  that  a  foreclosure  decree 
of  a  State  court  against  an  admin- 
istrator of  the  mortgagor  was  bind- 
ing upon  the  latter's  heirs,  with- 
out determining  whether,  if  the 
foreclosure  had  been  instituted  in 
the  Federal  court,  the  heirs  would 
have  been  necessary  parties.  Cf. 
Norton  v.  House  of  Mercy,  C.  C.  A., 
101  Fed.  382;  Hearfield  v.  Bridges, 
C.   C.   A.,   75   Fed.   47. 

83a  35  St.  at  L.  65,  Comp.  St. 
Supp.  1911.  p.  1322. 

83bTroxell  v.  Delaware,  L.  &  W. 
R.  Co..  227  U.  S.  434,  reversing  200 
Fed.  44. 

83cLichty   v.   Lewis,   63   Fed.   535. 


e>c>6 


AXSWEKS. 


[§  186 


when  the  mortgage  was  made,84  but  not  by  judgments  in  subse- 
quent suits  to  which  he  was  not  a  party.85  The  holders  of  mort- 
gage bonds,  previously  issued,  are  not  bound  by  a  judgment 
against  the  mortgagor  concerning  the  liability  of  its  property 
to  taxation.86  But  a  decree  against  the  trustee  of  a  mortgage 
does  not  affect  the  same  person  when  claiming  as  trustee  of  an- 
other mortgage  without  proof  that  the  bondholders  are  the 
same.87  A  judgment  against  a  trust  company,  sued  individu- 
ally, is  no  estoppel  against  a  suit  by  it  as  trustee.88  A  State 
is  not  bound  by  a  judgment  against  one  of  its  officers  for  the 
possession  of  lands,  which  he  claims  to  hold  in  its  behalf.89  A 
homesteader  is  not  bound  by  a  decree  against  the  United 
States  in  a  suit  brought  by  the  Government  to  cancel  a  land 
patent  to  a  railway  company.90  A  judgment  against  a  munic- 
ipal officer  binds  his  successor  ii>  office,  the  municipality,  and 
the  other  officers,  so  far  as  their  official  obligations  are  con- 
cerned,91 and  also  the  citizens  and  taxpayers.92  The  same 
effect  is  given  to  an  order  for  a  mandamus,93  or  for  a  writ  of 
prohibition.94  The  denial  of  a  writ  of  prohibition  is  not  an  ad- 
judication that  the  court  sought  to  be  prohibited  has  jurisdic- 
tion of  the  proceeding  which  it  was  sought  to  stop.94a     A  muni- 


84  Keokuk  &  Western  E.  Co.  v. 
Missouri,  152  U.  S.  301,  314,  38  L. 
ed.    450,   450. 

85  Dull  v.  Blackman.  100  U.  S. 
243.  42  L.  ed.  733;  Keokuk  &  West- 
ern R.  Co.  v.  Missouri,  152  U.  S. 
301.  314.  38  L.  ed.  450,  456;  Camp- 
hell  v.  Hall,  16  N.  Y.  575;  Southern 
B  &  Tr.  Co.  v.  Folsom.  C.  C.  A.,  75 
Fed.  920:  Columhia  Ave.  Sav.  Fund, 
Safe  Deposit,  Title  &  Trust  Co.  v. 
Dawson.   130   Fed.   152. 

86  Wicomico  County  Com'rs  v. 
Bancroft,  C.  C.  A.,  135  Fed.  077: 
Laighton  v.  City  of  Carthage,  Mil, 
175   Fed.   145. 

87Compton  v.  Jesup,  C.  C.  A.,  68 
Fed.  47.  Cf.  Carey  v.  Roosevelt, 
('.  ('.  A..  102  Fed.  569. 

88  Bancroft  v.  Wicomico  County 
Com'rs.    121    Fed.    874. 

89Tindal    v.     Wesley.     167    U.    S. 


204,  42  L.  ed.  137.    See  supra,  §  105. 

90  Brandon  v.  Ard,  211  U.  S.  11, 
53   L.   ed.   68. 

91  Nfew  Orleans  v.  Citizens'  Bank, 
167  U.  S.  371,  389.  42  L.  ed.  202, 
208;  Scotland  County  v.  Hill,  112 
U.  S.  183,  28  L.  ed.  692.  Harshman 
v.  Knox  Co.,  122  17.  S.  306.  30  L. 
ed.  1152:  State  v.  Rainey.  74  Mo. 
229:  Harmon  v.  Auditor.  123  111. 
122.  5  Am.  St.  Rep.  502. 

92  Mcintosh  v.  Pittsburg.  112  Fed. 
705.  707. 

93  Police  Jury  v.  U.  S.,  60  Fed. 
249 :  Ransom  v.  Pierre,  C.  C.  A., 
101  Fed.  665:  McEvoy  v.  New  York, 
56    App.    Div.   222. 

94  Bank  of  Ky.  v.  Stone,  C.  C.  A., 
S8    Fed.    383.    395.    398. 

94a  Consolidated  Rubber  Tire  Co. 
v.  Ferguson.  C.  C.  A.,  183  Fed.  756. 
See  §  456,  infra. 


§  186] 


EES   AD  JUDICATA. 


607 


cipal  corporation  is  not  necessarily  bound  by  a  decree  in  a  suit 
against  another  municipality,  to  which  officers  of  the  State  were 
parties.95  An  injunction  in  a  taxpayer's  suit,  which  retains 
a  municipal  corporation  from  paying  bonds,  does  not  estop 
a  bondholder,  who  is  not  a  party  to  the  suit.96  A  corpo- 
ration is  not  estopped  by  a  decree  in  a  suit  to  which  one  of 
its  stockholders  was  a  party.97  It  might  be  held  otherwise, 
however,  when  the  corporation  was  formed  by  the  same 
persons,  who  defended  the  former  suit,  for  the  purpose  of 
escaping  from  the  effect  of  the  adjudication.98  The  officers 
of  a  corporation  are  estopped  by  a  decree  against  their  com- 
pany, when  they  assisted  it  in  the  acts  therein  enjoined, 
and  exclusively  managed  and  controlled  the  same.99  It  has 
been  held :  that  stockholders  who  are  not  parties  to  statutory 
proceedings  for  the  dissolution  of  a  corporation  are  so  far 
bound  by  a  decree  therein  making  assessments  upon  the  stock, 
that  they  cannot  dispute  the  insolvency  of  the  company  and 
the  necessity  of  the  assessment ;  10°  but  that  they  may  defend 
upon  the  ground  that  their  shares  were  fully  paid,  or  as  to 
any  other  question  peculiarly  affecting  their  individual  lia- 
bility.101 The  same  rule  applies  to  former  stockholders,  who 
are  also,  it  has  been  said,  concluded  by  a  judgment  finding  that 
there  were  claims  unpaid  existing  at  the  time  of  their  trans- 
fer.102 Where  the  stockholders  were  parties  to  such  a  suit  or 
proceeding  and  were  duly  served,  they  are  bound  by  all  ques- 
tions therein  determined,103  and  a  judgment  upon  the  merits 
in  their  favor  is  a  bar  to  subsequent  proceedings  in  another 
jurisdiction  for  the  same  relief.104     Stockholders  are  not  bound 


95  Bank  of  Kentucky  v.  Kentucky, 
207  U.  S.  258,  52  L.  ed.  197. 

96  Clagett  v.  Duluth  Tp.,  C.  C.  A., 
143   Fed.  824. 

97  Am.  Coat  Pad  Co.  v.  Phoenix 
Pad  Co.,  C.  C.  A.,  113  Fed.  G29, 
632.  Xor  by  a  decree  against  a 
president  and  director  of  the  same 
in  his  individual  capacity.  Brinek- 
erhorY  v.  Holland  Tr.  Co.,  159  Fed. 
191. 

98  See  McCabe  &  Steam  Constr. 
Co.  v.  Wilson,  209  U.  S.  275.  52  L. 
ed.  78S. 


99  Saxlehner  v.  Fisner,  140  Fed. 
938. 

100  Hawkins  v.  Glenn,  131  U.  S. 
319,  33  L.  ed.  184;  s.  c,  135  U.  S. 
533,  34  L.  ed.  262;  Hamilton  v. 
Levison,  198  Fed.  444;  Southworth 
v.  Morgan,  205  N.  Y.  293. 

101  Rood  v.  Wliorton,  07  Fed.  434. 

102  Hamilton  v.  Selig,  195  Fed. 
153. 

103  Irvine  v.  Blackburn,  198  Fed. 
360. 

104  Converse  v.  Stewart,  192  Fed. 
941. 


(J  08 


ANSWERS. 


[§  1S6 


by  a  judgment  against  their  corporation  in  a  suit  which  was 
brought  after  the  proceedings  to  liquidate  its  assets  had  be- 
lt has   been    held   that    a   judgment   establishing   the 


gun 


105 


exemption  of  a  bank  from  taxation  of  its  property  and  from 
liability  to  pay  a  tax  upon  its  stockholders,  is  not  an  estoppel 
against  the  enforcement  of  a  tax  directly  against  the  latter.106 
Where  a  corporation  was  sued  for  the  torts  of  its  servants, 
it  was  held  that  a  judgment  in  favor  of  the  servants  was  a  bar 
to  an  action  against  it.107  A  person  who  succeeded  to  the  de- 
fendant's rights,  previous  to  the  institution  of  the  suit,  is  not 
bound  by,  and  cannot  claim,  the  benefit  of,  the  decree  therein.108 
In  certain  cases,  persons  not  parties  nor  their  privies  have  been 
held  to  be  bound  by 109  and  to  have  the  benefit  of  decrees  as 
estoppels  when  they  defended  the  suit  openly  to  the  knowledge 
of  the  adverse  party  and  for  the  protection  of  their  own  inter- 
ests no  provided,  at  least,  that  they  exercised  some  control  over 
the  management  of  the  defense.111  The  secret  payment  of  the 
expenses  of  the  defense,112  or  the  public  filing  of  a  brief  upon 
an  appeal,113  in  the  first  suit,  is  insufficient;  but  a  party  who 


105  Sclirader  v.  Manufacturers' 
Nat.  Bank,  133  U.  S.  67,  33  L.  ed. 
564.  Cf.  Ward  v.  Joslin,  C.  C.  A., 
105   Fed.  224. 

106  New  Orleans  v.  Citizens'  Bank, 
167  U.  S.  371,  380,  402,  42  L.  ed. 
202.  205,  212.  See  Union  &  Plant- 
ers' Bk.  v.  Memphis,  189  U.  S.  71, 
47  L.  ed.  712. 

107  Williford  v.  Kansas  City,  M. 
&  B.  R.  Co.,  154  Fed.  514. 

108  Calculagraph  Co.  v.  Automatic 
Time    Stamp   Co.,    154   Fed.   166. 

109  Plumb  v.  Crane,  123  U.  S.  560, 
31  L.  ed.  268 ;  Bank  of  Ky.  v.  Stone, 
88  Fed.  383.  396;  Lane  v.  Welds, 
C.  C.  A..  99  Fed.  286;  Penfield  v. 
C.  &  A.  Potts  &  Co.,  C.  C.  A.,  126 
Fed.  475;  Sacks  v.  Kupferle,  127 
Fed.  569. 

no  Cramer  v.  Singer  Mfg.  Co.,  93 
Fed.  630;  Greenwich  Ins.  Co.  v. 
X.  &  M.  Friedman  Co.,  C.  C.  A., 
142  Fed.  944;    Confectioners'  Mach. 


&  Mfg.  Co.  v.  Racine  Eng.  &  Mach. 
Co.,  163  Fed.  914. 

HI  Rumford  Chemical  Works  v. 
Hygienic  Chemical  Co.,  215  U.  S. 
156,  54  L.  fid.  137;  Confectioners' 
Mach.  &  Mfg.  Co.  v.  Racine  Eng.  & 
Mach.    Co.,    163    Fed.    914. 

H2  Cramer  v.  Singer  Mfg.  Co.,  93 
Fed.  636;  Litchfield  v.  Goodnow, 
123  U.  S.  549,  31  L.  ed.  199;  Hanks 
Dental  Ass'n  v.  International  Tooth 
Crown  Co.,  C.  C.  A.,  122  Fed.  74; 
Westinghouse  Electric  &  Mfg.  Co. 
v.  Jefferson  Electric  Light,  Heat  & 
Power  Co.,  135  Fed.  365;  Jefferson 
Electric  Light,  Heat  &  Power  Co.  v. 
Westinghouse  Electric  &  Mfg.  Co., 
C.  C.  A..  139  Fed.  385;  Rumford 
Chemical  Works  v.  Hygienic  Chemi- 
cal Co.,  14S  Fed.  862,  affd  215  U. 
S.   156.   54   L.   ed.   137. 

nsstryker  v.  Goodnow,  123  TJ.  S. 
527,  31  L.  ed.  194. 


§    187]  RES  AD  JUDICATA.  G69 

intervenes  upon  an  appeal  will  be  estopped  by  the  decree.114 
A  decree  in  a  suit  brought  by  one  on  behalf  of  those  of  a  class 
who  come  in  and  contribute  to  the  expense  of  the  suit  does 
not  bind  the  rest  unless  they  come  in  and  contribute.115  It 
has  been  said  that  the  rule  is  otherwise  in  a  tax-payer's  suit.116 
Where  joint  defendants  appeared  and  answered  separately  by 
different  attorneys  and  separate  judgments  were  rendered  as 
to  each,  it  was  held  that,  in  the  absence  of  cross  pleadings,  a 
judgment  against  or  in  favor  of  either  created  no  estoppel  be- 
tween them  in  a  subsequent  action  for  contribution.117 

§  187.  Form  of  defense  of  res  judicata.  In  pleading  a 
judgment  or  decree,  it  is  not  necessary  to  set  it  forth,  nor  the 
proceedings  upon  wThich  it  was  founded,  at  length,1  but  so  much 
of  the  decree  and  pleadings  should  be  averred  as  will  show  that 
the  same  point  was  in  issue,2  together  with  the  commencement 
and  service  of  process  in  the  former  suit,  its  general  character 
and  object,  the  relief  therein  prayed,  and  sufficient  averments 
of  the  facts  to  show  that  there  is  an  identity  of  subject-matter.3 
In  case  of  such  a  plea,-  under  the  former  practice,  the  court 
might  require  that  the  decree  be  pleaded  at  length,  or,  if  the 
plea  set  up  matter  of  record  in  the  same  court,  that  the  record 
be  shown  before  the  plaintiff  is  required  to  take  action  upon 
the  plea.4  Where  a  decree  in  a  former  suit  is  introduced  in 
evidence  on  stipulation  without  the  objection  that  it  has  not 
been  properly  pleaded,  it  will  be  given  full  effect  as  a  bar.5 

A  prior  decree  can  usually  be  put  in  evidence  without  hav- 

114  Martin   v.   Peoples'   Bank,   115  U7  City  of  Owensboro  v.  Westing- 
Fed.  226.  house.  Church,  Kerr  &  Co.,  C.  C.  A., 

us  Wabash  R.  R.  Co.  v.  Adelbert  165  Fed.  3S5. 

College,  208  U.  S.  38,  58,  52  L.  ed.  §   187.     1  Mcintosh    v.    Pittsburg, 

379,   388;    Compton   v.  Jesup,   C.   C.  112  Fed.  705. 

A..    6S    Fed.   263,   285,    (both    these  2Ricardo    v.    Garcias.    12    CI.    & 

cases   relate   to  the   same   bondhold-  F.    368;     Story's    Eq.    PL,    §    783; 

ers'  suit);   Hart  v.  Globe  Ins.   Co.,  Mound   City   Co.  v.  Castleman,   J7I 

113    Fed.    309     (a    creditors'    suit)  ;  Fed.  520. 

Jackson  Co.  v.  Gardiner  Inv.  Co.,  C.  3  Mound    City    Co.    v.    Castleman. 

C.  A.,  200  Fed.  113,  117.   (a  bill  filed  171    Fed.  520. 

by  stockholders,  which  was  not  ex-  4  Emma    S.    M.    Co.    v.    Emma    S. 

pressly      tiled      on     behalf     of     the  M.  Co.  of  X.  Y.,  1  Fed.  39. 

others.)      See  supra,  §§   114-116.  5  Tbid. 

116  Gamble   v.   City  of  San   Diego, 
79  Fed.  487. 


070 


ANSWERS. 


[§  187 


ing  been  pleaded  where  the  pleading  of  the  party  sets  up  the 
facts  which  were  adjudicated  by  the  decree;  and  the  decree  is 
then  conclusive  evidence  of  such  facts.6  It  has  been  held  that 
where  a  defendant  does  not  raise  the  objection  in  the  court  of 
first  instance,  he  waives  the  defense  that  two  separate  actions 
cannot  be  brought  upon  a  single  demand.7  It  has  been  said 
that  by  pleading  a  defense  against  a  former  decree  a  party 
waives  his  right  to  claim  an  estoppel  under  the  same.8  But 
offering  evidence  of  such  facts  while  the  former  decree  was 
merely  interlocutory  does  not  waive  the  right  to  claim  that 
it  is  a  bar  after  it  has  ripened  into  a  final  decree.9  The  fact 
that  a  decree  was  interlocutory  when  the  suit  was  brought  does 
not  prevent  it  from  becoming  a  bar  as  soon  as  a  final  decree 
to  the  same  effect  has  been  entered.10  Where  an  interlocutory 
decree  did  not  become  final  until  after  an  interlocutory  decree 
had  been  entered  in  a  subsequent  suit;  it  was  held:  that,  if 
presented  before  the  final  decree  in  the  latter,  it  was  conclusive 
upon  the  merits  of  that  suit.11  A  person  is  not  chargeable 
with  laches  in  presenting  a  prior  adjudication  as  a  bar,  where 
it  was  set  up,  in  a  petition  filed  before  the  final  decree,  and 
within  a  month  after  the  dismissal  by  the  Supreme  Court  of 
the  United  States  of  a  petition  for  a  writ  of  certiorari  to  review 
the  same.12  Where  the  adjudication,  upon  which  the  defendant 
relies,  is  made  subsequent  to  the  defendant's  answer,  he  should 
regularly  plead  the  same  by  a  supplemental  answer;13  but  it 
may  be  considered  when  raised  by  an  amended  answer,14  or  in 
a  petition.15  A  decree  based,  in  whole  or  in  part,  upon  a  plea 
of  res  adjudicata,  will  be  reversed  upon  appeal ;  where,  subse- 


6  David  Bradley  Mfg.  Co.  v. 
Eagle  Mfg.  Co.,  58  Fed.  721 ;  South- 
on.  Pac.  R.  Co.  v.  U.  S.,  168  U.  S. 
1,  57.  42  L.  ed.  355.  379. 

i  Southern  Pac.  Ry.  Co.  v.  U.  S., 
C.  ('.  A.,  18G  Fed.  737. 

8  Mack  v.  Levy,  60  Fed.  751. 

9  David  Bradley  Mfg.  Co.  v.  Ea- 
gle Mfg.  Co.,  57  Fed.  980;  Bredin 
v.  National  Metal  Weatherstrip  Co., 
147  Fed.  741;  David  Bradley  Mfg. 
Co.  v.  Eagle  Mfg.  Co..  C.  C.  A..  57 
Fed.   980. 

10  David  Bradley   Mfg.  Co.  v.  Ea- 


gle Mfg.  Co.,  57  Fed.  980;  Bredin 
v.  National  Metal  Weatherstrip 
Co.,  147  Fed.  741. 

ll  Penfield  v.  C.  &  A.  Potts  & 
Co.,   C.   C.   A.,   126   Fed.   475. 

l2Penlield  v.  C.  &  A.  Potts  & 
Co..   C.   C.   A.,   126   Fed.   475. 

13  Warren  Featherhone  Co.  v. 
De  Camp,  154  Fed.  198;  infra,  § 
195. 

14  See  infra,  §§  212-214. 

15  Penfield  v.  ('.  &  A.  Potts  & 
Co.,  C.  C.  A.,  126  Fed.  475. 


188]  PATENT  CASES. 


G71 


quent  to  its  entry,  the  judgment  held  to  constitute  an  estoppel 
has  been  reversed;  and  the  appellate  court  in  the  second  suit 
will  take  judicial  notice  of  such  reversal;16  even  when  it  was 
by  a  State  court ; 17  but  where  the  judgment,  as  first  rendered, 
was  in  accordance  with  the  law  of  the  State,  as  declared  by  its 
highest  court,  and  the  reversal  overruled  former  decisions,  a 
Federal  court  refused,  upon  a  bill  to  review,  to  set  aside  its 
decree,  founded  upon  res  ad  judicata™  although  it  is  no  ground 
for  reversal  that,  in  subsequent  litigation,  the  State  court  has 
overruled  the  doctrine  which  was  the  foundation  of  the  decision 
that  is  pleaded.19  It  has  been  held:  that  a  judgment  of  the 
Supreme  Court  of  a  State  is  no  bar  to  a  subsequent  suit  in  a 
Circuit  Court  of  the  United  States,  where  it  has  been  taken  by 
writ  of  error  to  the  Suprenie  Court  of  the  United  States  and 
is  there  pending  undetermined. 

§  188.  Defenses  peculiar  to  patent  cases.  The  Kevised 
Statutes  provide:  "In  any  action  for  infringement  the  defend- 
ant may  plead  the  general  issue,  and  having  given  notice  in 
writing  to  the  plaintiff  or  his  attorney,  thirty  days  before,  may 
prove  on  trial  any  one  or  more  of  the  following  matters: 
First,  that  for  the  purpose  of  deceiving  the  public  the  descrip- 
tion and  specification  filed  by  the  patentee  in  the  Patent  Office 
was  made  to  contain  less  than  the  whole  truth  relative  to  his 
invention  or  discovery,  or  more  than  is  necessary  to  produce 
the  desired  effect;  or,  second,  that  he  had  surreptitiously  or 
unjustly  obtained  the  patent  for  that  which  was  in  fact  in- 
vented by  another,  who  was  using  reasonable  diligence  in  adapt- 
ing and  perfecting  the  same;  or,  third,  that  it  had  been 
patented  or  described  in  some  printed  publication  prior  to  his 
supposed  invention  or  discovery  thereof ;  or,  fourth,  that  he  was 
not  the  originator  and  first  inventor  or  discoverer  of  any  ma- 
terial and  substantial  part  of  the  thing  patented;  or,  fifth, 
that  it  had  been  in  public  use"  or  on  sale  in  this  country  for 

16  Ransom  v.  St.  Pierre,  C.  C.  A.,  "Board     of     Councilmen    v.    De- 

1(11    Fed.    665;    Empire    State-Idaho  posit   Bank,   C.   C.   A..    124    Fed.   18. 

Mining  &  Developing  Co.  v.  Bunker  19  Virginia-Carolina  Chemical  Co. 

Hill    &    S.    Mining   &    Concentrating  v.  Kirven,  215   V.  S.  252,  54   L.  ed. 

Co.,    C.   C.    A..    121    Fed.   073;    Hen-  179. 

nessy  v.  Tacoma  Smelting  &  Relin-  20  Eastern    B'g    &    Loan    Ass'n    v. 

ing  Co..  C.  C.  A.,  129  Fed.  40.  Welling,  103  Fed.  352. 

n  Ibid. 


H72  AisrswEBS.  [§  133 

more  than  two  rears  before  his  application  for  a  patent,  or 
had  been  abandoned  to  the  public.  And  in  notices  as  to  proof 
of  previous  invention,  knowledge  or  use  of  the  thing  patented, 
the  defendant  shall  state  the  names  of  patentees  and  the  dates 
of  their  patents,  and  when  granted,,  and  the  names  and  resi- 
dences of  the  persons  alleged  to  have  invented,  or  to  have  had 
the  prior  knowledge  of  the  thing  patented,  and  where  and  by 
whom  it  had  been  used;  and  if  any  one  or  more  of  the  special 
matters  alleged  shall  be  found  for  the  defendant,  judgment 
shall  be  rendered  for  him  with  costs.  And  the  like  defenses 
may  be  pleaded  in  any  suit  in  equity  for  relief  against  an 
alleged  infringement ;  and  proofs  of  the  same  may  be  given 
upon  like  notice  in  the  answer  of  the  defendant,  and  with  the 
like  effect."  1  A  denial  in  the  answer  in  a  suit  for  infringement 
of  a  patent  that  the  patentee  was  the  first  inventor  of  the  im- 
provement described  in  the  patent  named  in  the  bill,  specify- 
ing it  by  number,  is  sufficient  to  raise  the  issue  of  invention,  al- 
though the  title  of  the  patent  as  stated  in  the  answer  may  be 
technically  inaccurate.2  Where  a  bill  alleged  past  and  present 
infringement,  and  that,  defendant  then  had  on  hand  a  large 
number  of  infringing  machines  which  it  was  offering  for 
sale,  it  was  held :  that  an  answer  which  admitted  that  defend- 
ant had  previously  sold  a  machine  which  had  been  adjudged  an 
infringement,  but  alleged  that  it  had  ceased  selling  the  same 
"long  prior"  to  the  beginning  of  the  suit  and  returned  the 
parts  on  hand  to  the  manufacturer,  and  since  •"that  time"  had 
sold  no  machines  of  that  character,  was  indefinite  and  evasive 
and  not  responsive,  and  must  be  treated  as  admitting  the  aver- 
ment that  defendant  had  infringing  machines  on  hand  which  it 
was  offerino-  for  sale.3  When  defendants  avoided  answerino* 
specific  interrogatories  concerning  a  charged  infringement,  but 
merely  denied  the  use  of  any  machinery  "in  violation  and  in- 
fringement of  any  rights  of  the  plaintiff,  or  that  they  are  using, 
or  have  made,  or  sold,  or  used  any  machines  not  protected  or 
covered  by  the  proviso  in  the  act  of  Congress ;"  it  was  said  that 
they      thereby     presumptively      admitted      the      infringement 

§  ]S8.     1U.  S.  R.  S.,  §  4920.     Cf.  2  Robinson    v.    American    Car    & 

Anderson  v.  Miller,  129  U.  S.  70,  Foundry  Co.,  C.  C.  A.,  135  Fed.  693. 
32  L.  ed.  635.  3  Deere  &  Webber  Co.  v.  Dowage- 

iac  Mfg.  Co.,  C.  C.  A.,  153  Fed.  177. 


188] 


PATENT    CASES. 


673 


charged.4  The  notice  need  not  be  under  oath,  and  a  consent  to 
an  order  that  the  answer  be  considered  as  amended  by  the  in- 
sertion of  such  defense  and  notice  is  a  waiver  of  any  further 
oath.5  Under  this  statute  it  has  been  held  that  no  evidence 
can  be  admitted  in  support  of  any  of  these  defenses  unless  it 
has  been  properly  pleaded  and  the  requisite  notice  has  been 
given  to  the  complainant ; 6  and  the  complainant's  patent  is 
then  prima  facie  evidence  of  the  priority  of  his  invention;7 
but  that  the  respondent,  after  pleading  these  defenses  or  some 
of  them,  with  the  names  of  such  of  the  persons  therein  referred 
to  as  he  knows,  may  also  plead  a  general  allegation  "that  the 
same  had  been  previously  invented  and  known  and  used  by 
many  other  persons  whose  names  are  unknown  to  the  respond- 
ent, which,  when  known,  the  respondent  prays  leave  to  insert 
and  set  forth  in  the  answer."8  Upon  the  subsequent  discov- 
ery of  any  such  persons,  testimony  concerning  them  may  be 
taken,  and  leave  obtained  from  the  court  to  insert  their  names 
in  the  answer  by  amendment  nunc  pro  tunc.  An  order  to  this 
effect  may  be  obtained  before  or  after  the  testimony  has  been 
taken.9  An  averment  that  a  patent  "was  obtained  upon  false 
and  fraudulent  representations  by  the  plaintiff,  or  some  of  them, 
made  to  the  Commissioner  of  Patents,  and  is  wholly  void  at 
law,"  is  too  uncertain  to  be  sufficient  to  constitute  a  defense.10 
In  pleading  prior  patents,  it  is  sufficient  to  give  their  number 


4Agawam  Co.  v.  Jordan.  7  Wall. 
583,  609,  19  L.  ed.  177,  184.  An 
admission  in  an  answer  that  the 
defendant  had  made  locks  of  the 
kind  described  in  the  patent  sued 
upon,  "is  satisfied  by  assuming  that 
the  smallest  number  of  locks  were 
made  consistent  with  the  use  of 
that  word  in  the  plural,  and  with 
the  use  by  the  defendants  of  any 
part  of  the  patent  which  is  valid." 
See  Miller,  J.,  in  Jones  v.  More- 
head.  ]  Wall.  155,  165,  17  L.  ed. 
C62,  004.  But  compare  Troy  I.  & 
N.  Factory  v.  Corning,  0  Blatchf. 
328,   330.   337. 

5  Campbell  v.  Mayor  of  X.  Y.,  45 
Ted.   243. 

6  Teese    v.    Huntington,    23    How. 

Fed.  Prac.  Vol.  I.— 43. 


2,  10  L.  ed.  479;  Agawam  Co.  v. 
Jordan,  7  Wall.  583,  19  L.  ed.  177; 
Blanchard  v.  Putnam,  8  Wall.  420, 
19  L.  ed.  433;  Bates  v.  Coe,  98  U. 
S.  31,  25  L.  ed.  68:  Pitts  v.  Ed- 
monds, 2  Fisher,  52,  54;  Salaman- 
der Co.  v.  Haven,  3  Dill.  131;  Jen- 
nings v.  Pierce,  15  Blatchf.  42; 
Williams  v.  Boston  &  A.  R.  Co.,  17 
Blatchf.  21;  Decker  v.  Grote.  10 
Blatchf.  331  ;  Morton  v.  Llewellyn, 
C.  C.  A..  104  Fed.  693. 

7  Fay  v.   Mason,  120  Fed.  500. 

8  Roemer  v.  Simon,  95  U.  S.  214, 
220,  24  L.  ed.  384,  386;  Brown  v. 
Hall,  6  Blatchf.  405. 

9  Ibid. 

10  Clark  v.  Scott,  5  Fisher,  245. 


674 


ANSWERS. 


[§  188 


and  date  and  the  name  of  the  patentee.11  In  pleading  prior 
publications,  they  must  be  clearly  identified  or  a  copy  thereof 
must  be  filed.12  In  pleading  prior  use,  the  time  and  place  there- 
of must  be  set  forth  with  such  directness  and  certainty  as  will 
enable  complainant  to  go  upon  the  ground  and  determine  what 
acts  there  done  may  be  relied  on.13  The  omission  of  the  place 
of  the  use  makes  the  notice  fatally  defective.14  But  a  notice 
is  not  defective  for  failure  to  state  the  particular  place  within 
a  specified  city  at  which  the  defendant  proposes  to  prove  the 
previous  use.15  Evidence  stated  in  a  notice  to  be  proposed  for 
one  purpose  cannot  be  used  for  another.16  The  defenses  that 
complainant  was  not  the  the  original  inventor  and  that  the 
thing  patented  had  been  in  public  use  or  on  sale  for  more  than 
two  years  before  his  application,  or  had  been  abandoned,  are 
distinct  from  each  other,  and  if  the  defendant  relies  upon  both 
he  must  give  notice  accordingly.17  It  seems  that  when  a  pre- 
vious patent  has  not  been  referred  to  in  an  answer,  such  patent 
may  still  be  proved,  as  evidence  of  a  prior  use  of  the  invention, 
which  has  been  properly  pleaded,18  to  show  the  state  of  the  art 
at  the  date  of  the  complainant's  alleged  invention,19  and  to  aid 
in  the  proper  construction  of  the  patent  in  suit.20  The  state  of 
the  art  can  always  be  pleaded  without  notice.21  It  has  been 
held  that  a  witness  may  be  asked  whether  the  defendant's 
machine  is  similar  to  a  model  of  the  plaintiff's  patented  ma- 
chine, although  no  notice  of  such  testimony  has  been  given.22 
The  defense  of  want  of  patentability  need  not  be  pleaded  in 
the  answer.23    It  is  unsettled  whether  the  defense  of  insufficient 


11  Corrugated  Metal  Co.  v.  Patti- 
son,  197  Fed.  577. 

12  Ibid. 

13  Tbid. 

14  Scbenck  v.  Diamond  Match  Co., 
C.  C.  A.,  77  Fed.  208;  s.  c,  71  Fed. 
521,. 

15  Wise  v.  Allis.  9  Wall.  737,  19 
L.  ed.  784. 

16  Pennoek  v.  Dialogue,  4  Wash. 
538:  s.  c.  2  Pet.  1,  7  L.  ed.  327. 

17  Meyers   v.   Busby,   32    Fed.   670. 

18  Atlantic  Works  v.  Brady,  107 
U.  S.  192,  27  L.  ed.  438.  But  see 
Parks  v.  Booth,   102   I".   S.   90.   105, 


26  L.  ed.  54,  57 ;   Kennedy  v.  Solar 
Eef.  Co.,  69  Fed.  -715. 

19  Am.  S.  Co.  v.  Hogg,  1  Holmes, 
133;  s.  c,  6  Fisher,  67:  Stevenson 
v.  Magowan,  31  Fed.  824:  Morton 
v.  Llewellyn,  C.  C.  A..  164  Fed.  693. 

20  Morton  v.  Llewellyn,  C.  C.  A., 
164   Fed.  693. 

21  Vance  v.  Campbell,  1  Black, 
427.  17  L.  ed.  168;  Brown  v.  Piper, 
9]   U.  S.  37.  23  L.  ed.  200. 

22  Evans  v.  Hettick.  7  Wheat.  453, 
469.  5  L.  ed.  496,  500. 

23  May  v.  Juneau  County,  137 
U.  S.  408,  34  L.  ed.  729;   Stevenson 


§  188] 


PATENT    CASKS. 


075 


description  can  be  set  up  without  alleging  an  intent  to  deceive 
the  public.24  The  statute  requires  notice  of  the  names  and 
residences  of  the  inventors  and  of  those  who  have  the  prior 
knowledge  of  the  thing-  patented,  not  the  names  of  the  wit- 
nesses.25 Notice  of  the  time  when  the  person  named  possessed 
a  knowledge  or  use  of  the  invention  is  not  required.26  The 
notice  is  not  a  pleading  and  should  be  served  upon  the  plain- 
tiff.27   It  is  the  better  practice  to  file  the  notice  with  the  plead- 


v.  Magowan,  31  Fed.  824;  Wills  v. 
Scranton  Cold  Storage  &  Warehouse 
Co.,  C.  C.  A.,  155  Fed.  181.  It  has 
been  said  concerning  the  defense  of 
want  of  novelty:  "Where  the  thing 
patented  is  an  entirety,  consisting 
of  a  separate  device  or  of  a  single 
combination  of  old  elements  incapa- 
ble of  division  or  separate  use,  the 
respondent  cannot  make  good  the 
defense  in  question  by  proving  that 
a  part  of  the  entire  invention  is 
found  in  one  prior  patent,  printed 
publication,  or  machine,  and  an- 
other part  in  another,  and  so  on 
indefinitely,  and  from  the  whole  or 
any  given  number  expect  the  court 
to  determine  the  issue  of  novelty 
adversely  to  the  complainant." 
.  .  .  "Defenses  of  the  kind,  if  the 
tiling  patented  is  an  entirety,  in- 
capable of  division  or  separate  use, 
must  be  addressed  to  the  invention, 
and  not  to  a  part  of  it,  or  to  one 
or  more  claims  of  the  patent,  of 
less  than  the  entire  invention. 
More  than  one  patent  may  be  in- 
cluded in  one  suit,  and  more  than 
one  invention  may  be  secured  in  the 
same  patent;  in  which  cases  the 
several  defenses  may  be  made  to 
each  patent  in  the  suit,  and  to  each 
invention,  to  which  the  charge  of 
infringement  relates."  Mr.  Justice 
Clifford,  in  Parks  v.  Booth,  102  U. 
S.  96,  104,  26  L.  ed.  54.  57;  citing 
Bates  v.  Coe,  98  U.  S.  31,  25  L.  ed. 
68.     It  has  been  said  that  a  defense 


charging  that  the  original  patentee 
"fraudulently  and  surreptitiously 
obtained  the  patent  for  that  which 
he  well  knew  was  invented  by  an- 
other, unaccompanied  by  the  fur- 
ther allegation  that  the  alleged  first 
inventor  was  at  the  time  using  rea- 
sonable diligence  in  adapting  and 
perfecting  the  invention,  is  not  suf- 
ficient to  defeat  the  patent,  and 
constitutes  no  defense  to  the  charge 
of  infringement."  Clifford.  J.,  in 
Agawam  Co.  v.  Jordan,  7  Wall.  583, 
597,  19  L.  ed.  177,  180. 

24  Loom  Co.  v.  Higgins,  105  U.  S. 
580,  5S8,  589,  26  L.  ed.  1177,  1180, 
1181;  Grant  v.  Raymond,  6  Pet. 
218,  8  L.  ed.  376;  Whittemore  v. 
Cutter,  1  Gall.  429;  Lowell  v.  Lewis, 
1  Mason,  182;  Gray  v.  James,  Pet. 
C.   C.   394. 

25  Woodbury  P.  Mach.  Co.  v. 
Keith,  101  U.  S.  479,  25  L.  ed.  939; 
Roemer  v.  Simon,  95  U.  S.  214,  24 
L.  ed.  384. 

26  Phillips  v.  Page,  24  How.  164, 
16  L.  ed.  639. 

27  Cottier  v.  Stimson,  20  Fed. 
906.  See.  also,  10  Saw.  212;  Henry 
v.  U.  S..  22  Ct.  CI.  75.  The  defend- 
ant may  also  plead  his  defense  spe- 
cially if  he  so  desires.  Cottier  v. 
Stimson,  20  Fed.  906.  907:  Evans  v. 
Eaton,  3  Wheat.  454:  Grant  v.  Ray- 
mond, 6  Pet.  218;  Phillips  v.  Comb- 
stock,  4  McLean.  525 ;  Day  v.  X.  E. 
C.  S.  Co.,  3  Blatchf.  179.  Tn  such  a 
case  it  seems  that  no  notice  may  be 


676 


ANSWERS. 


[§  188 


ings  after  it  has  been  served.28  The  pendency  of  a  previous 
suit  for  the  infringement  of  certain  claims  of  a  patent,  specified 
by  number  in  the  bill,  is  not  a  bar  to  a  second  suit  in  the  same 
court,  between  the  same  parties,  for  an  infringement  of  different 
claims  of  the  same  patent,  also  specified  in  the  latter  bill,  where 
the  two  sets  of  claims  cover'  distinct  and  separate  devices  in 
the  same  machine.29  When,  after  a  bill  has  been  filed  to  re- 
strain the  infringement  of  a  patent  and  to  obtain  an  account 
of  profits,  the  defendant  continues  his  infringements,  the  pen- 
dencv  of  the  first  is  no  objection  to  a  second  bill  seeking  an  in- 
junction, and  an  account  founded  upon  the  subsequent  infringe- 
ments.30 And  notwithstanding  a  decree  for  an  injunction  in 
the  former  suit,  a  decree  for  an  injunction  and  account  was 
granted  in  that  for  the  subsequent  infringements,  the  second 
injunction  being  useless  except  to  support  the  equitable  juris- 
diction.31 The  pendency  of  a  suit  for  the  infringement  of  a 
patent  in  one  district  is  no  bar  to  a  suit  against  the  same  de- 
fendant for  the  infringement  of  the  same  patent  in  another 
district ;  but,  in  the  latter  suit,  the  court  will  only  consider  and 
adjudicate  upon  alleged  infringements  within  its  district  if 
the  defendant  resides  or  has  made  a  general  appearance  in  the 
former.32  It  has  been  held  that  defenses  impugning  the  valid- 
ity of  complainant's  patent33  and  the  defense  of  non-infringe- 
ment,34 are  not  waived  by  a  further  defense  of  license.  It  was 
held  at  common  law  that  the  defendant  might  plead  the  gen- 
eral issue,  and  also  a  special  plea  that  the  combination  covered 


given.  Cottier  v.  Stimson,  20  Fed. 
906,  907;  Evans  v.  Eaton,  3  Wheat. 
454:  Grant  v.  Raymond.  6  Pet.  218; 
Phillips  v.  Combstoek.  4  McLean, 
525;  Day  v.  X.  E.  C.  S.  Co..  3 
Blatchf.  179.  A  plea  stricken  out 
by  the  court  is  not  a  sufficient  legal 
notice.  Silsby  v.  Foote,  1  Blatchf. 
44.1;  s.  c,  14  How.  18.  No  demur- 
rer lies  to  a  notice.  Henry  v.  U.  S., 
22  Ct.  CI.  75.  A  defect  in  the  notice 
may  be  remedied  by  a  second  notice 
without  leave  of  the  court.  Teese  v. 
Huntingdon,  23  How.  2.  10. 

28  Teese   v.    Huntington,   23   How. 
2,  10,  16  L.  ed.  479,  482. 


29  Bates    Mach.    Co.    v.    Wm.    A. 
Force  &.  Co.,  139  Fed.  74(1. 

30  Wheeler       v.       McCormick,       8 
Blatchf.    2G7 ;    Roemer   v.   Newman, 
19   Fed.  98;    Higby  v.   Columbia   R 
Co.,    18    Fed.    601.      Contra,   Gold   & 
Stock    Tel.    Co.    v.    Pearce,    19    Fed 
419*. 

31  Horton  v.  X.  Y.  C.  &  H.  R.  R 
Co..  0.3  Fed.  897. 

32  Warren    Bros.    Co.    v.    City    of 
Montgomery.  172  Fed.  414. 

33  Nat.  Mfg.  Co.  v.  Meyers,  7  Fed. 
355. 

34  Niagara   Fire   Extinguisher  Co. 
v.  Hibbard,  C.  C.  A.,  179  Fed.  844. 


40 


§    188]  PATENT    CASES.  677 

by  the  patent  was  not  an  invention,  and  a  further  plea  that 
the  invention  was  not  patentable.35  Ownership  or  part-owner- 
ship by  defendant  of  the  patent  which  is  the  foundation  of 
the  bill,36  a  license,37  and  estoppel,38  are  affirmative  defenses 
which  must  be  pleaded.  But  where  the  defendant  has  pleaded 
a  patent  of  prior  date  to  that  alleged  in  the  bill  and  the  com- 
plainant undertakes  to  carry  the  date  of  his  invention  further 
back  without  having  so  alleged  in  his  pleading,  the  defendant 
may,  it  has  been  held,  meet  such  proof  by  the  defense  of  laches 
or  abandonment  without  pleading  the  same.39  It  has  been  held : 
that  the  Federal  statute  of  limitations,  six  years,  to  the  recov 
erv  of  profits  or  damages  for  the  infringement  of  a  patent 
need  not  be  pleaded  in  the  answer,  nor  need  it  be  negatived  in 
the  bill,41  but  it  is  a  defense  as  to  which  the  defendant  bears  the 
burden  of  proof  ;42  that  the  plaintiff  has  the  burden  of  proof  as 
to  infringement,  even  when  the  defendant  pleads  a  license 
as  well  as  non-infringement ; 43  that  where  the  answer  admit? 
that  defendant,  during  the  time  alleged  in  the  bill,  had  made 
and  used  articles  conforming  to  the  claims  of  the  patent,  no 
further  proof  on  the  issue  of  infringement  is  required  from 
complainant,44  and  that  the  defendant  has  the  burden  of  prov- 

35Brickill    v.    Hartford.    57    Fed.  « Ibid.     The  fact  that  the  owner 

216.      It    has   been    said    that    "the  of    a    patent    permitted    a    suit    for 

respondent   cannot   set   up   as  a   de-  its    infringement    to    be    dismissed 

fense   that    if    complainant's    patent  without  a  trial  on  the  merits  is  not 

be    so    construed    aas    to    cover    the  such  laches  .as  to  bar  a  second  suit 

machine    made    and    sold    by    him,  against    the   same    defendant.    Wels- 

then  the  machine  embraced  in  said  bach    Light    Co.    v.    Cohn,    ]S1    Fed. 

patent  was   known    and   used   prior  322. 

to  the  invention  thereof  by  the  pat-  43  Niagara   Fire  Extinguisher  Co. 

eritee."     Graham  v.  Mason,  4  Cliff.  v.  Hibbard,  C.  C.  A.,  179  Fed.  844. 

88.  44  Fox   v.   Knickerbocker    F.ngrav- 

36Puetz    v.    Bransford,    31     Fed.  ing  Co..  C.  C.  A.,  165  Fed.  442.     In 

45S.  a  suit  for  infringement  against  the 

37  Watson   v.   Smith,   7    Fed.   350;  Hygienic  Chemical  Company  of  New 
Puetz  v.  Bransford,  31  Fed.  458.  York,  where  it  was  shown  that  de- 

38  Pennsylvania    Co.    v.    Cole,    132  fendant  was  a  selling  company  only. 
Fed.  668;  supra,  §  183.  while   the    Hygienic   Chemical    Com- 

39  Curtain     Supply     Co.     v.     Nat.  pany   of   New   Jersey    was    a    manu- 
Lock  Washer  Co..  174  Fed.  45.  factoring    company    only,    the    testi- 

40  29  St.  at  L.  694:   supra,  §  180.  mony    of    a    witness    that    he    pur- 

41  Peters  v.  Hanger,  C.  C.  A.,  134  chased    an    article    shown    to    he    an 
Fed.  586.  infringement     from     the     "' Hygienic 


678  answebs.  [§  188 

ing  the  defenses  of  anticipation  and  prior  nse  beyond  a  rea- 
sonable doubt.45  A  judgment  in  an  action  for  royalties  is 
an  estoppel  against  the  same  defendant  in  a  suit  for  royalties 
accruing  subsequently,  when  he  pleads  a  defense  different  from 
that  set  up  in  the  first  suit.46  A  decree  for  a  perpetual  injunc- 
tion and  for  damages  and  profits  in  a  patent  case  is  an  estoppel 
against  a  second  suit  for  damages  and  profits  on  account  of  in- 
fringements committed  during  the  period  covered  by  the  first 
suit  of  which  no  evidence  was  given  nor  recovery  prayed.47 
But  it  does  not  prevent  a  second  perpetual  injunction  against 
the.  same  acts  to  support  a  decree  for  an  accounting  of  profits 
caused  by  infringements  subsequent  to  the  first  suit.48  A  decree 
in  a  suit  to  enjoin,  the  infringement  of  a  patent  which  declared 
that  the  same  was  valid,  binds  upon  this  question  the  same 
defendant  in  a  second  suit  to  enjoin  similar  infringements, 
although  the  only  issue  raised  by  the  pleadings  in  the  former 
suit  related  to  the  title.49  But  where  apparently  there  was  no 
such  finding  in  the  first  decree,  and  the  only  question  then  lit- 
igated had  been  the  defendants'  claim  of  a  license,  it  was  not 
estopped  from  contesting  the  validity  of  the  patent  in  a  second 
suit.50  A  decree  enjoining  the  infringement  of  a  patent, 
upon  a  bill  alleging  that  the  defendant  claimed  the  right  to 
make  the  articles  infringed  under  the  authority  of  another 
patent,  which,  however,  was  not  pleaded  in  the  defendant's 
answer,  did  not  estop  parties  in  privity  with  the  defendants 
from  setting  up  the  latter  patent  as  a  defense  to  a  subsequent 
suit  upon  the  same  patent  of  the  plaintiffs,  where  the  former 
decree  did  not  expressly  adjudicate  the  validity  of  the  plain- 
tiffs' patent.51    Where  the  owner  of  a  patent  had  sued  a  manu- 

Chemical    Company"    in    New   York  48  Ibid. 

is   sufficient,   prima   facie,   to  estab-  49  Empire  S.  N.   Co.  v.  American 

lish   infringement  by  the  defendant.  S.  L.  B.  Co.,  C.  C.  A.,  74  Fed.  864. 

Rumford    Chemical    Works    v.    Hy-  50  Lublin  v.  Stewart  H.  &  M.  Co., 

gienic   Chemical   Co.,   C.   C.   A.,   159  75  Fed.  294. 

Fed.  43G.  51  Leonard    v.    Simplex   El.   Heat- 

45  Beckwith     v.     Malleable     Iron  ing  Co.,   145  Fed.  946.     See  a  note 
Range  Co.,  174  Fed.  1001.  to  Westinghouse  El.  &   Mfg.  Co.  v. 

46  Johnson    Co.    v.    Wharton,    152  Stanley  Instrument  Co.,  68  C.  C.  A. 
I".  S.  252,  38  L.  ed.  429.  541. 

47Horton  v.  X.  Y.  C.  &  H.  R.  R. 
Co.,  63  Fed.  897. 


§  188]  PATENT  CASES.  679 

facturer  for  infringement,  in  which  suit  the  Cirenit  Conrt  of 
Appeals  of  one  circuit  had  adjudicated  in  favor  of  the  defend- 
ant ;  and  he  subsequently,  in  a  suit  in  another  circuit  against 
the  seller  of. a  similar  article,  not  made  by  the  former  defend- 
ant, obtained  an  adjudication  in  his  favor  by  the  Circuit  Court 
of  Appeals ;  it  was  held :  that  the  defendant  in  the  first  suit 
might  enjoin  him  from  bringing  similar  suits  in  any  part  of 
the  United  States  against  any  of  that  defendant's  customers ;  al- 
though that  defendant  had  assumed  the  defense  of  the  second 
suit.52  But  such  an  injunction  will  not  lie  against  an  exclusive 
licensee  in  another  circuit  when  he  acquired  his  rights  before 
the  first  decision  was  rendered.53  A  decree  for  a  permanent 
injunction  in  one  circuit,  which  excepted  therefrom  a  prohibi- 
tion against  the  defendant  selling  infringing  articles  made  in 
another,  where  the  patent  had  been  held  to  be  invalid,  was 
held  to  be  not  an  adjudication  of  the  defendant's  right  to  sell 
such  articles  in  the  latter  circuit,  but  merely  a  reservation 
of  the  question  until  it  should  arise  in  a  proper  case.54  A  gen- 
eral verdict  of  a  jury  in  an  action  at  common  law  awarding 
damages  for  the  infringement  of  a  patent  establishes  the  valid- 
ity thereof  as  between  the  parties,  but  does  not  disclose  the  con- 
struction placed  upon  it  by  the  jury,  nor  what  claims  in  the  suit 
were  held  to  be  valid.55  It  does  not,  consequently,  afford  a  basis 
upon  which  a  court  of  equity  in  a  subsequent  suit  between  the 
same  parties  can,  without  further  evidence,  determine  the 
question  of  infringement  by  a  different  device.56  Since  the 
owner  of  a  patent  cannot  split  up  his  cause  of  action,  a  judg- 
ment for  damages  in  an  action  at  law,  although  conclusive  in 
his  favor  on  the  questions  of  validity  and  infringement,  is  a 
bar  to  the  right  to  an  accounting  in  a  subsequent  suit  in  equity 
against  the  same  defendant  for  other  sales  made  prior  to  the 
commencement  of  the  action  at  law.57  A  person  who  has  as- 
sumed and  conducted  the  defense  of  a  patent  case  is  bound  by 
the  decree,  although  not  a  party  to  the  same.58     A  corporation 

52Ressler    v.    Eldred,    206    U.    S.  sit  Development  Co.,   197   Fed.  563. 

285,    51    L.    ed.    1065.      See    §    186,  56  ibid. 

supra,  §  269,  infra.  57  Panoulais    V.    Xat.    Equipment 

MHurd  v.  James  Goold  Co.,   197  Co.,  198  Fed.  493. 

Fed.  756.  58  Rumford     Chemical     ^Vorks     v. 

541-Iurd  v.  Seim,  189  Fed.  591.  Hygienic    Chemical    Co.,    C.    C.    A., 

55  Cheatham  El.  S.  D.  Co.  v.  Tran-  159   Fed.   436;    Confectioners'   Mach. 


680 


ANSWERS. 


[§  188 


which,  pending  the  suit,  acquires  the  subject-matter  of  the 
patent  in  suit,  is  estopped  by  the  decree  therein;59  and  where 
his  assignee  was  successful,  the  decree  is  an  estoppel  in  his 
favor  against  the  opposite  party  or  his  privies.60*  Purchasers 
of  articles  subsequent  to  a  decree  in  a  patent  suit  are  not  privies 
to  the  decree,  nor  protected  by  the  same.61  A  decree  dismissing 
a  bill  in  equity  upon  the  merits  for  an  infringement  of  a  pat- 
ent is  a  bar  to  a  subsequent  action  at  law 62  or  suit  in  equity 
for  an  infringement  of  the  same  patent  by  the  same  device,63 
notwithstanding  the  fact  that  the  complainant,  by  notice,  re- 
stricted his  proofs  and  contention  to  certain  specified  claims, 
which  are  not  in  issue  in  the  subsequent  suit.64  A  decree  sus- 
taining the  validity  of  a  patent  awarding  a  permanent  in- 
junction against  infringement  and  directing  an  accounting,  is 
interlocutory-,  and  is  not  final,  and  is  not  conclusive  of  the 
validity  of  the  patent  in  a  subsequent  suit  between  the  parties,65 
although  it  has  been  affirmed  by  the  Circuit  Court  of  Appeals.66 
A  plea  to  a  bill  for  an  injunction  to  restrain  the  infringement 
of  a  reissued  patent,  which  set  up  that  the  claim  had  been 
unlawfully  expanded  so  as  to  embrace  subsequent  improve- 
ments covered  by  later  patents,  was  held  good.67  A  plea  to  a 
bill  filed  under  section  4918  of  the  Kevised  Statutes  against 
the  owner  of  a  patent  interfering  with  that  of  the  complainant, 
which  set  up  that-the  invention  described  in  the  complainant's 
patent  was  described  in  a  previous  English  patent  published  in 
the  United  States,  and  filed  in  the  Patent  Office  here  before 


&  Mfg.  Co.  v.  Racine  Eng.  &  Macli. 
Co.,  163  Fed.  914;  Bryant  El.  Co. 
v.  Marshall,  169  Fed.  426,  aff'd.  C. 
C.  A.,  185  Fed.  499.  See  supra, 
§  186. 

59  Confectioners'  Mach.  &  Mfg. 
Co.  v.  Racine  Eng.  &  Mach.  Co.,  163 
Fed.  914. 

60  Confectioners'  Mach.  &  Mfg. 
Co.  v.  Racine  Eng.  &  Mach.  Co.,  163 
Fed.  914. 

eiHurd  v.  Seim,  189  Fed.  591. 

62  Robinson  v.  Am.  Car  &  Foun- 
dry Co.,  C.  C.  A.,  159  Fed.  131. 

63  Marshall   v.   Bryant   El.  Co.,  C. 


C.  A.,  185  Fed.  499;  affirming  Bry- 
ant El.  Co.  v.  Marshall,  169  Fed. 
426. 

64  Marshall  v.  Bryant  El.  Co.,  C. 
C.  A.,  185  Fed.  499;  affirming  Bry- 
ant El.  Co.  v.  Marshall,  169  Fed. 
426. 

65  Australian  Knitting  Co.  v. 
Gormly,  138  Fed.  92;  Whittemore 
Bros.  &  Co.  v.  World  Polish  Mfg. 
Co.,  159  Fed.  480. 

66  Australian  Knitting  Co.  v. 
Gormly,  138  Fed.  92. 

67Hubbell  v.  De  Land,  14  Fed. 
471. 


§    190]  FRAME    OF    ANSWER.  C>1 

the  issue  of  the  complainant's  patent,  was  held  bad  and  over- 
ruled.*8, 

§  189.  Proceedings  to  compel  answer.  By  the  Equity 
Rules  of  1012,  if  the  defendant  fails  to  file  his  answer  or  other 
defense  to  the  bill  in  the  clerk's  office  within  the  time  named  in 
the  subpoena,  "the  plaintiff  may,  at  his  election,  take  an  order 
as  of  course  that  the  bill  be  taken  pro  confesso;  and  thereupon 
the  cause  shall  be  proceeded  in  ex  parte."  1  "Averments  other 
than  of  value  or  amount  of  damage,  if  not  denied,  shall  be 
deemed  confessed,  except  as  against  an  infant,  lunatic  or  other 
person  non  compos  and  not  under  guardianship."  2  They  con- 
tain no  other  provision  for  proceedings  to  compel  an  answer. 
By  the  rules  of  1S42:  "The  plaintiff,  if  he  requires  any  dis- 
covery or  answer  to  enable  him  to  obtain  a  proper  decree,  shall 
be  entitled  to  process  of  attachment  against  the  defendant  to 
compel  an  answer,  and  the  defendant  shall  not,  when  arrested 
upon  such  process,  be  discharged  therefrom,  unless  upon  filing 
his  answer,  or  otherwise  complying  with  such  order  as  the  court 
or  a  judge  thereof  may  direct,  as  to  pleading  to  or  fully  answer- 
ing the  bill,  within  a  period  to  be  fixed  by  the  court  or  judge, 
and  undertaking  to  speed  the  cause." 3  The  ancient  practice 
upon  the  subject  was  substantially  the  same.  If  the  defendant 
did  not  file  an  answer  within  due  time,  he  was  in  contempt  and 
an  attachment  was  issued  against  him.4  If  the  sheriff  was 
unable  to  attach  the  defendant  and  returned  accordingly  non 
est  inventus,  a  commission  of  rebellion  would  issue.5  If  that 
proved  insufficient,  it  was  followed  by  a  writ  of  sequestration.6 

§  190.  Frame  of  answer.  An  answer  should  be  entitled  in 
the  cause,  so  as  to  agree  with  the  names  of  the  parties  as  they 
appear  in  the  bill  at  the  time  the  answer  is  filed.1  It  seems 
that  the  defendant  may  not  correct  or  alter  the  names  of  the 
parties  as  they  appear  in  the  bill,  and  that  if  there  is  a  mistake 

68  Pentlarge  v.  Pentlarge,  19  Fed.  5  Boudinot    v.    Symmes,    Wall.    C. 

817;    s.   c,   22    Fed.   412.     But   see  C.    139;    Smith's    Ch.    Pr..    (2d    ed., 

Foster  v.  Lindsay.  3  Dill.  126,  131.  1837),   183,  18G. 

§   189.     lEq.   Rule   ]6.  6  Smith's     Ch.     Pr.,     (Second     ed. 

2  Kq.  Pule  30.  1837)     183-188;    Daniell's    Ch.    Pr., 

3  E<|.    Rule    18   of    1842.  ( First  Am.  ed.)  f)43;  Davis  v.  Ham- 
*  Matter    of  Yanderbilt.   4   J.   Ch.  mond,  5  Sim.  9. 

(N.  Y.)    58.     See  Daniell's  Ch.  Pr.,  §   190.     1  Daniell's    Ch.    Pr.     (5th 

(First  Am.  ed.)   538.  Am.  ed.)    731. 


682  ANSWERS.  [§    190 

he  must  correct  it  in  the  part  following  the  title  of  the  cause ; 
thus,  "The  answer  of  the  defendants,  the  mayor,  aldermen,  and 
commonalty  in  the  bill  called  the  mayor,  aldermen,  and  cit- 
izens of  the  city  of  INTew  York."  2  The  answer  should  begin 
substantially  thus:  "The  answer  of  John  Aber,  one  of  the 
above-named  defendants,  to  the  bill  of  complaint  of  the  above- 
named  plaintiff;"  if  the  bill  has  been  amended  after  answer, 
"to  the  amended  bill  of  complaint."  3  If  two  or  more  defend- 
ants join  in  the  same  answer,  it  usually  begins,  "The  joint  and 
several  answer;"4  unless  they  are  husband  and  wife,  when  it 
is  "The  joint  answer;"5  but  an  answer  is  not  defective  if  put 
in  by  several  as  a  joint  answer  merely.6  When  discovery  is 
required,  all  of  the  defendants  who  join  in  an  answer  must 
swear  to  the  same.7  When  the  same  solicitor  is  employed  for 
two  or  more  defendants,  and  separate  answers  are  filed,  or 
other  proceedings  had  by  two  or  more  defendants  separately, 
costs  are  not  allowed  for  such  separate  answers  or  other  pro- 
ceedings, unless  a  master,  upon  reference  to  him,  certifies  that 
such  separate  answers  and  other  proceedings  were  necessary  or 
proper,  and  ought  not  to  have  been  joined  together.8  A  female 
defendant  who  has  married  since  the  filing  of  the  bill,  usually 
begins :  "The  answer  of  John  Aber  and  Anna,  his  wife,  lately 
in  the  bill  called  Anna  Brown,  spinster,"  or  widow,  as  the  case 
may  be.9  A  title,  "the  several  answer  of  John  Peck,  Esq.,  one 
of  the  defendants  to  the  bill  of  complaint  of  Anna  Baines,  alias 
Green,  assuming  to  herself  the  name  of  Anna  Peck,  as  pretended 
wife  of  John  Peck,  Esq.,  deceased,  and  of  Anna  Maria  Green, 
assuming  to  herself  the  name  of  Anna  Maria  Peck,  as  daughter 
of  the  said  John  Peck,  Esq.,  deceased,"  was  held  scandalous.10 
An  answer  by  a  person  defending  by  guardian  or  next  friend 
should  state  that  fact:     "James  Fifield  by  Edward  Jennings, 

2  Atty.    Gen.    v.    Worcester    Corp.  6  Davis    v.    Davidson,    4    McLean, 

1    C.   P.   Cooper,    18;    DanielPs    Ch.  136. 

Pr.    (5th  Am.  ed.)    731.  7  Bailey  W.  M.   Co.  v.   Young,   12 

3Daniell's  Ch.  Pr.    (5th  Am.  ed.)  Rlatchf.   190. 

731;    Rigby  v.   Rigby,   9   Beav.   3H,  SRule  62. 

313.  9  DanielPs  Ch.  Pr.   (5th  Am.  ed.) 

4  Davis    v.    Davidson,    4    McLean,  731. 

136.  10  Peck  v.  Peck,  Moseley,  45. 

SDaniell's  Ch.  Pr.    (  3th  Am.  ed.) 
731. 


191] 


SIGNATURE    AND    SEAL. 


683 


his  next  friend/'  u  Xext  followed  formerly  a  clause  reserving 
to  the  defendant  any  and  all  advantages  that  might  lie  taken  by 
exception  to  the  bill.12  This  was  always  useless13  and  is  forbid- 
den by  the  Equity  Rules  of  1912. 14  Then  conies  the  substantive 
part  of  the  answer,  setting  up  the  matters  of  affirmative  defense 
and  giving  the  discovery  required.15  Next  should  be  inserted 
any  counter-claim  or  set-off  upon  which  the  defendant  relies.16 
It  is  the  safer  practice  to  specifically  describe  the  matter  thus 
pleaded  as  a  counter-claim  or  set-off,  as  the  case  may  be.1'  The 
answer  usually  closes  with  a  general  traverse  inserted  out  of 
abundant  caution,  denvino-  the  unlawful  combination  charged 
in  the  bill,  and  all  other  matters  therein  contained.18  In  the 
answers  of  infants  and  other  persons  under  a  disability,  the 
reservation  and  general  traverse  have  always  been  deemed 
properly  granted.19  The  answer  in  such  cases  generally  is  that 
the  infant  knows  nothing  of  the  matter,  and  therefore  neither 
admits  nor  denies  the  charges,  but  leaves  the  plaintiff  to  prove 
them  as  he  shall  be  advised,  and  throws  himself  on  the  protec- 
tion of  the  court.20  But  if  such  a  defendant  has  any  substantive 
defense,  he  should  plead  the  same.21 

§  191.  Signature  and  seal  to  answer.  The  answer  must 
be  signed  individually  by  one  or  more  solicitors  of  record.1 
If  the  former  practice  is  followed,  an  answer  must  be  signed  by 
the  defendant,  making  it;  even,  it  seems,  when  an  answer  under 
oath  has  been  waived,2  unless  he  answer  by  guardian,  when  the 


11  Darnell's  Ch.  Pr.  (5th  Am. 
ed.)    731. 

12  Mitford's  PL,  ch.  2,  §  2,  part 
3;   Story's  Eq.  PL,  §  870. 

•13  Story's  Eq.  PL,  §  870;  Rules 
39,  44. 

13a  Eq.  Pule  30. 

"Mitford's  PL.  cli.  2,  §  2,  part  3. 

14a  See  Eq.  Rule  30. 

"b  Bates  v.  Rosekrans,  37  X.  Y. 
409;  Ward  v.  Conegys,  2  How.  Pr. 
N,  S.  (N.  Y.)  428:  Burke  v.  Thorne, 
44  ftirb.  (X.  Y.I  303;  Burral  v.  De 
Groot,  5  Duer  (X.  Y.)  379;  Equita- 
ble Life  Ass'n.  v.  Cuyler,  75  X.  Y. 
511,    aflirming    12    Hun,    247.      But 


see  Acer  v.  Hotchkiss,  97  X.  Y.  395. 
•  15  Mitford's  PI.,  ch;  2,  §  2,  part  3, 
Story's  Eq.  PI.,  §  870. 

16  Story's  Eq.  PL,  §  871. 

17  Chancellor  Kent  in  Mills  v. 
Dennis.  3  J.  Ch.    (X.  Y.)    367,  368. 

18  Holden  v.  Hearn,  1  Beav.  445, 
455;  Lane  v.  Hardwicke,  9  Lea  v. 
148,  149. 

§   191.     lEq.  Rule  24. 

2  Story's  Eq.  PL,  §  875;  Davis  v. 
Davidson,  4  McLean.  130;  Bayley 
v.  De  Walkiers,  10  Yes.  441  ;  Fulton 
Bank  v.  Beach,  2  Paige  (X.  Y.i, 
307;  Denison  v.  Bassford,  7  Pais*! 
(X.  ¥.),  370. 


(is4 


ANSWERS. 


[§  192 


latter  should  sign  it,3  or  unless  an  order  has  been  obtained  dis- 
pensing with  such  signature  on  account  of  the  defendant's  ab- 
sence, or  for  some  other  reason.4  A  person  answering  in  a  dual 
capacity  need  sign  but  once.5  An  answer  by  a  corporation 
must  be  under  its  corporate  seal.6  In  such  a  case  it  is  advisable 
to  have  the  seal  attested  by  one  of  the  corporate  officers.7  When 
an  answer  is  made  without  oath,  the  signature  of  the  defend- 
ant should  also  be  attested.8  This  is  usually  done  by  his  solic- 
itor.9 

§  192.  Oath  to  answer.  Under  the  former  practice,  un- 
less an  answer,  under  oath,  was  waived  in  the  bill,  a  defendant, 
if  a  natural  person,  was  obliged  to  swear ; 1  or  "if  conscientiously 
scrupulous  of  taking  an  oath,  in  lieu  thereof  make  solemn  af- 
firmation to  the  truth  of  the  facts  stated  by  him."  2  jSTo  oath 
was  necessary  to  an  answer  by  a  corporation.3  The  present 
rules  are  silent  upon  the  question  as  to  whether  an  answer  must 
be  verified.4    They  provide :  "Every  pleading  which  is  required 


3  Anon.,  2  J.  &  W.  553;  Daniell's 
Ch.  Pr.    (5th  Am.  ed.)    733. 

4  Story's  Eq.  PL,  §   875;   v. 

Lake,  6  Ves.  171;   v.  Gwillim, 

6  Ves.  285. 

5  Anon.,  2  J.  &  W.  553. 

6  Haight  v.  Proprietors  Morris 
Aqueduct,  4  Wash.  601.  605;  Mon- 
arch Vacuum  Cleaner  Co.  v.  Cacuum 
Cleaner  Co.  194  Fed.  172. 

7  Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
735,  note  2. 

8  Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
738. 

9  Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
738. 

§  192.  1  Fulton  Bank  v.  Beach, 
2  Paige  (N.  Y.)  307;  Daniell's  Ch. 
Pr.,   (5th  Am.  ed.)    735. 

2Eq.  Rule  91  of  1842,  which  so 
far  as  it  applies  to  cases  in  which 
an  oath  is  required,  re-enacted  in 
Eq.  Pviile  78  of  1912.  See  U.  S.  R. 
S.,  §  5013. 

3  Union  Bank  of  Georgetown  v. 
Geary,  5  Pet.  99,  110,  8  L.  ed.  60. 
64;   Wallace  v.  Wallace,  Halst.    (N. 


J.)  Dig.  173;  Smith  v.  St.  Louis 
M.  Ins.  Co.,  2  Tenn.  Ch.  599; 
Burpee  v.  First  Nat.  Bank,  5  Biss. 
405;  Coca  Cola  Co.  v.  Gay-Ola  Co., 
C.  C.  A.,  200  Fed.  720,  726.  But 
see  Kittredge  v.  Claremont  Bank,  3 
Story,  590;   s.  c,  1  W.  &  M.  245. 

4  Although  the  English  Judicature 
Act  and  orders  and  rules  are  silent 
upon  the  subject,  the  English  courts 
do  not  require  an  oath  to  be  annexed 
to  the  defense  in  equity,  which  is 
the  pleading  corresponding  to  our 
answer.  The  writer  is  indebted  for 
this  information  through  the  cour- 
tesy of  Francis  A.  Stringer,  Esq.,"  of 
the  Central  Office,  Royal  Courts  of 
Justice,  one  of  the  editors  of  "Annu- 
al Practice."  There,  however,  in 
certain  cases,  upon  plaintiff's  affi- 
davit that  in  his  belief  there  is  no 
defense  to  the  action,  the  defendant 
is  not  allowed  to  defend  without 
permission  of  the  court.  Order  XIV. 
For  verification  by  a  corporation 
when  required,  see  §  174,  supra. 


§    193]  MOTIONS   UPON.  685 

to  be  sworn  to  by  statute,  or  these  rules,  may  be  verified  before 
any  justice  or  judge  of  any  court  of  the  United  States,  or  of 
any  State  or  Territory,  or  of  the  District  of  Columbia,  or  any 
clerk  of  any  court  of  the  United  States,  or  of  any  Territory, 
or  of  the  District  of  Columbia,  or  any  notary  public."  5  An 
answer  can  be  verified  without  the  United  States  before  com- 
missioners appointed  for  that  purpose;6  or  probably  before 
any  secretary  of  legation  or  consular  officer  at  the  post,  port, 
place,  or  within  the  limits  of  his  legation,  consulate,  or  com- 
mercial agency.7  The  following  form  of  oath  or  affirmation  is 
given  by  Daniell  in  his  valuable  work  on  Chancery  Practice: 
"You  swear,  or  solemnly  affirm,  that  what  is  contained  in  this 
your  answer  (or  plea  and  answer),  as  far  as  concerns  your  own 
act  and  deed,  is  true  to  your  own  knowledge,  and  that  what  re- 
lates to  the  act  and  deed  of  any  other  person  or  persons,  you  be- 
lieve to  be  true."8  When  sworn  to  in  a  foreign  country,  it 
seems  that  it  must  be  "administered  in  the  most  solemn  form 
observed  by  the  laws  and  usages"  of  that  country.9  Every  al- 
teration and  interlineation  in  the  answer  should  be  authenticat- 
ed by  the  initials  of  the  officer  who  administers  "the  oath.,, 
When  the  verification  of  an  answer  is  in  the  form  of  an  affi- 
davit, the  name  of  the  defendant  making  it  must  be  subscribed 
at  the  foot  of  the  affidavit.  When  in  the  form  of  a  certificate 
of  the  officer  administering  the  oath,  the  defendant's  name 
should  be  subscribed  at  the  foot  of  the  answer.10 

§  193.  Motions  to  take  answers  off  the  file.  When  an  an- 
swer is  any  respect  irregular,1  or  is  filed  by  a  person  not  named 
as  a  defendant  in  the  bill,2  or  is  filed  too  late,  it  may  upon  the 
plaintiff's  motion  be  taken  off  the  file.3  This  may  also  be  done 
when  the  paper  purporting  to  be  an  answer  is  so  evasive  that 

5Eq.  Rule  36.  Paige    (N.  Y.)    173,  176;   Pincers  v. 

6  Read  v.  Consequa,  4  Wasji.  335.  Robertson,  9  C.  E.  Green   (24  N.  J. 

7U.    S.    R.    S.,    §    1750.      But   see  Eq.)    348. 

Read  v.  Consequa,  4  Wash.  335.  §  103.     l  Bailey    W.    M.    Co.    v. 

8  2  Daniell's  Ch.  Pr.,  ch.  15,  §  2,  Young,  12  Blatehf.  199. 

p.  270 ;   Story's  Eq.  PI.,  §  872,  note  2  Putnam  v.  New  Albany,  4  Biss. 

4-  365,  367. 

9  Read  v.  Consequa,  4  Wash.  335.  3  Allen    v.    Mayor    and    Board    of 

10  Daniell's     Ch.     Pr.,     (5th     Am.       Ed.,  18  Blatehf.  239. 
ed.)     743;    Hathaway    v.    Scott,    11 


<;><; 


ANSWERS. 


[§  194 


it  is  in  fact  no  answer.4  If  it  is  taken  off  the  file  for  an  error 
in  form,  the  court  may  allow  the  same  paper  to  be  corrected,  and 
then  filed  anew.5  By  setting  the  cause  down  for  a  hearing  npon 
bill  and  answer,6  or  by  filing  a  reply  or  taking  any  other  step 
in  the  cause  without  raising  the  objection,  such  a  defect  would 
be  waived.7  A  failure  to  enter  an  order  taking  a  bill  as  con- 
fessed, does  not  authorize  the  filing  of  an  answer  after  the  pre- 
scribed time.8 

§  194.  Exceptions  for  insufficiency.  "Exceptions  for  in- 
sufficiency of  an  answer  are  abolished."  *  The  sufficiency  of  an 
affirmative  defense  may  be  tested  by  a  motion  to  strike  out  the 
same.2  In  case  of  insufficiency  in  admissions  or  denials,  the 
matters  not  properly  denied  are  deemed  confessed,  except  as 
against  a  person  non  compos  and  not  under  guardianship.3  By 
the  former  practice,  exceptions  to  the  insufficiency  of  the  dis- 
covery could  be  filed  within  a  limited  time,4  except  in  the  case 
of  an  answer  by  an  infant  or  other  person  under  a  disability.5 
Where  such  an  exception  was  sustained  and  a  further  answer 
put  in,  which  the  plaintiff  deemed  still  insufficient,  by  the 
former  English  practice  he  had  three  weeks  wherein  to  refer 
the  same  to  a  master  upon  the  old  exceptions ;  otherwise  the 
further  answer  was  deemed  sufficient.6  If  the  further  answer 
was  found  insufficient,  the  defendant  was  required  to  put  in  a 
third  answer;  and  if  that  too  was  found  insufficient,  he  was 
committed  to  the  Fleet,  and  examined  upon  interrogatories.7 
When  an  order  was  obtained  after  answer,  allowing  the  plain- 


4  Tomkin  v.  Lethbridge,  9  Ves. 
178;    Smith   v.  Searle, -14  Ves.  415. 

5  Bailey  W.  M.  Co.  v.  Young,  12 
Blatchf.  199. 

6  Besson  &  Co.  v.  Goodman,  et  al., 
147  Fed.  S87. 

7  Fulton  Bank  v.  Beach,  2  Paige 
(N.  Y.),  307;  Glassington  v. 
Thwaites,  2  Buss.  458,  461. 

8  Allen   v.   Mayor,   7   Fed.  483. 
§    194.      lEq.    Rule   33. 

2Eq.  Rule  33:   infra,  §  237. 
3Eq.  Rule  30. 

4  Read  v.  Consequa.  4  Wash.  33.i. 
Uhlmann  v.  Arnholt  &  S.  B.  Co., 


41  Fed.  309;  Colgate  v.  Compagnie 
Francaise.  23  Fed.  82.  But  see 
United  States  v.  McLaughlin,  24 
Fed.  823;  MeCormick  v.  Chamber- 
lin.  11  Paige  (N.  Y.),  543;  Shep- 
pard    v.    Akers,    1    Tenn.    Ch.    326. 

5  Copeland  v.  Wheeler,  4  Brown, 
Ch.  C.  250;  Lucas  v.  Lucas.  13  Yes. 
274;  Micklethwaite  v.  Atkinson,  1 
Coll.  173;  Daniell's  Ch.  Pr.  (5,tfa 
Am.  ed.)    109. 

6  Smith's  Ch.  Pr.  (2d  ed.  1830), 
285. 

t  Smith's  Ch.  Pr.  (2d  ed.  1S36). 
2S5,  280. 


196] 


DISCLAIMERS. 


687 


tiff  to  amend  his  bill,  and  requiring  the  defendant  to  answer 
the  amendments  and  the  exceptions  to  the  answer  to  the  original 
hill  together ;  upon  such  answer  the  plaintiff  could  only  file 
new  exceptions  for  a  failure  to  fully  answer  the  amendments.8 
The  insufficiency  of  a  defense  in  an  answer  could  not  be  thus 
determined.9 

§  195.  Supplemental  answers.  A  supplemental  answer 
was  formerly  filed  to  bring  to  the  attention  of  the  court  some 
fact  which  was  not  inserted  in  the  original  answer  through 
mistake  or  ignorance,1  or  which  had  occurred  subsequently  to 
the  filing  of  the  same.2  They  could  only  be  filed  bv  leave  of 
the  court,  which  might  impose  terms  upon  the  applicant.3  The 
Equity  Rules  now  provide:  "Upon  application  of  either  party 
party  the  court  or  judge,  may,  upon  reasonable  notice  and  such 
terms  as  are  just,  permit  him  to  file  and  serve  a  supplemental 
pleading,  alleging  material  facts  occurring  after  his  former 
pleading,  or  of  which  he  was  ignorant  when  it  was  made, 
including  the  judgment  or  decree  of  a  competent  court  rendered 
after  the  commencement  of  the  suit  determining  the  matters 
in  controversy  or  a  part  thereof."  4  This  provides  merely  for 
supplemental  answers  of  the  second  class.  Such  supplemental 
answers  have  been  little  considered  in  the  books.  Their  func- 
tions might  also  be  performed  by  cross-bills.  It  was  too  late 
after  answer  and  decree  to  object  to  the  regularity  of  a  pro- 
ceeding in  which  facts  were  set  up  by  petition  when  cross- 
bill or  supplemental  answer  would  have  been  the  proper  prac- 
tice.5 

§  196.  Disclaimers.  A  disclaimer  by  the  defendant  is  a 
pleading  by  which  he  renounces  all  claim  to  property  which  the 
plaintiff  seeks  in  his  bill  to  obtain.1     It  is  said  that  it  is  dis- 


8  Partridge  v.  Haycraft,  11  Ves. 
570,  581;  Smith's  Ch.  Pr.  (2d  ed. 
1836),  286. 

9  Manhattan  Tr.  Co.  v.  Chicago 
El.  Traction  Co.,  188  Fed.  1006. 

§  195.  l  Smith  v.  Babcock.  3 
Sumner,  583;  Williams  v.  Gibbes, 
20  How.  535,  15  L.  ed.  1013;  Caster 
y.  Wood,  1  Baldw.  289;  Suydam  v. 
Truesdale,  6  McLean,  459. 

2Kelsey    v.    Hobby,    16    Pet.   269, 


277,   10   L.   ed.   961,   963;    Talmadge 
v.  Pell,  9   Paige    (N.  Y.),  410,  413. 

3  Smith  v.  Babcock,  3  Sumner, 
583;  Caster  v.  Wood,  1  Baldw.  289. 

4  Eq-.  Rule  34. 

Mvelsey  v.  Hobby.  16  Pet.  269, 
277,  10  L.  ed.  961.  963;  Coburn  v. 
Cedar  V.  L.  &  C.  Co.,  138  U.  S.  196, 
222.  34  L.  ed.  876,  886. 

§  196.  !  Mounsey  v.  Burnham.  1 
Hare,  15. 


688 


ANSWERS. 


[§  196 


tinct  in  its  substance  from  an  answer,  although  sometimes  con- 
founded with  one.2  By  the  former  practice,  it  must  in  most 
cases  be  accompanied  by  an  answer,  for  where  a  defendant  had 
been  made  a  party  by  mistake,  having  had  an  interest  with 
which  he  has  parted,  the  plaintiff  might  require  an  answer 
sufficient  to  ascertain  what  the  facts  were,  and  t<>  whom  he 
had  transferred  his  interest.3  Moreover,  a  defendant,  although 
he  may  disclaim  an  interest,  cannot  disclaim  a  liability.4  The 
only  cases  in  which  a  disclaimer  without  an  answer  wras  deemed 
to  be  sufficient  seemed  to  have  been  those  where  the  bill  simply 
alleged  that  the  defendant  claims  an  interest  in  the  property 
in  question  without  specifying  the  claim.5  Under  very  special 
circumstances,  a  disclaimer  may  be  withdrawn,  and  an  answer 
filed  setting  up  a  claim.6  Where  a  disclaimer  is  made,  and  it 
appears  that  the  defendant  was  made  a  party  without  apparent 
reason,  the  bill  will  be  dismissed  with  costs.  Otherwise,  a 
decree  may  be  entered  without  costs  against  the  defendant  and 
all  claiming  under  him  since  the  filing  of  the  bill.8  If  a  dis- 
claimer and  answer  by  the  same  defendant  are  inconsistent, 
the  matter  will  be  taken  most  strongly  against  the  defendant 
upon  the  disclaimer.9  The  following  is  a  form  of  a  mere  dis- 
claimer: "The  disclaimer  of  Richard  Flagg,  the  defendant,  to 
the  bill  of  complaint  of  Robert  Aber,  complainant.  This  de- 
fendant, saving  and  reserving  to  himself  [here  follows  the 
usual  general  reservation  in  an  answer],  saith,  that  lie  doth 
not  know-  that  he,  this  defendant,  to  his  knowledge  and  belief, 
ever  had,  nor  did  he  claim  or  pretend  to  have,  nor  doth  he 
now  claim,  any  right,  title,  or  interest  of,  in,  or  to  the  estates 


2  Story's  Eq.  PI.,  §  838. 

3  Story's  Eq.  PI.,  §  838.  See  Ells- 
worth v.  Curtis.  10  Paige  (N.  Y.), 
105;  Carrington  v.  Lentz,  40  Fed. 
18. 

4  Glassington  v.  Thwaites,  2  Russ. 
458:  Graham  v.  Coape,  9  Sim.  93, 
102;  s.  c,  3  Myl.  &  Cr.  638.  An 
averment  that  the  defendant,  prior 
to  the  beginning  of  the  suit,  had 
ceased  selling  an  alleged  infringing 
machine,  and  that  it  had  no  inten- 
tion of  using  or  selling  any  ma- 
chines   embodying    the    features    of 


the  patent,  was  held  not  to  be  such 
a  disclaimer  as  would  deprive  the 
complainant  of  the  right  to  an  in- 
junction. Deere  &  Webber  Co.  v. 
Dowagiac  Mfg.  Co.,  C.  C.  A.,  153 
Fed.  177. 

5  Story's  Eq.  PL.  §  838.  See  Gra- 
ham v.  Coape,  9  Sim.  93,  102;  S.  c, 
3  Myl.  &  Cr.  038. 

See  Eq. 


6  Story's  Eq. 

PL,  §  842. 

Jule   30. 

7  Story's  Eq. 

PL.  §  842. 

8  Story's  Eq. 

PL.  §  842. 

9  Mitford's  PL,  ch.  2,  §  2,  part  2. 


§    196]  DISCLAIMERS.  689 

and  premises,  situate  [describing  them],-  in  the  said  complain- 
ant's bill  set  forth,  or  any  part  thereof;  and  this  defendant  doth 
disclaim  all  right, .  title,  and  interest  to  the  said  estate  and 
premises  in  [naming  their  situation],  in  the  said  complainant's 
bill  mentioned,  and  every  part  thereof."  A  disclaimer  con- 
cludes in  the  same  way  as  an  answer.10 

10  Story's  Eq.  PI.,   §   844,  note  6; 
Fed.  Prac.  Vol.  I.— 44. 


CHAPTER  X. 

CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS. 

§  197.  Definition  and  origin  of  cross-bills.  A  cross-bill* 
is  a  bill  filed  by  a  defendant  in  a  suit  in  equity  against  one  or 
more  of  the  other  parties,  in  order  to  obtain  either  discovery 
of  facts  in  aid  of  his  defense,  or  complete  relief  to  all  parties 
as  to  the  matters  charged  in  the  original  bill.1  It  was  auxiliary 
to  the  original  suit  and  dependent  thereon.2-  It  was  borrowed 
through  the  canon  from  the  reconventio  of  the  civil  law,3  and 
from  it  is  derived  the  counter-claim  of  code-pleading.4  It 
was  originally  used  chiefly  for  the  .purposes  of  set-off  and  dis- 
covery, which  modern  statutory  enactments  make  it  possible  to 
obtain  in  a  simpler  way ;  but,  except  in  a  few  cases,  without  one 
no  relief  could  be  obtained  by  a  defendant  against  the  complain- 
ant in  the  same  suit,5  beyond  what  resulted  necessarily  from  the 
denial  of  the  prayer  of  the  original  bill.6  The  ordinary  cases  in 
which  a  defendant  could  obtain  relief  without  a  cross-bill  were : 
suits  for  an  account,7  for  the  specific  performance  of  contracts,8 


§  197.  !  Nelson,  J.,  in  Ayres  v. 
Carver,  17  How.  591,  595,  15  L.  ed. 
179,  180;  Springfield  M.  Co.  v.  Bar- 
nard, C.  C.  A.,  81  Fed.  261. 

2TJ.  S.  v.  Reese,  166  Fed.  347; 
Lovell  v.  Latham  &  Co.,  186  Fed. 
002. 

3  Story's  Eq.  PL,  §  402 ;  Langdell's 
Eq.  Pl.,"§§  152,  154. 

4  See  Brande  v.  Gilchrist,  18  Fed. 
465. 

5  Carnochan  v.  Christie,  11  Wheat. 
440.  6  L.  ed.  516;  Ford  v.  Douglas. 
a  How.  143.  12  L.  ed.  89 ;  Chapin  v. 
Walker.  6  Fed.  794;  Brande  v.  Gil- 
christ, 18  Fed.  465;  Denver  &  R.  G. 
Ry.  Co.  v.  Denver,  S.  P.  &  P.  R.  Co., 
17  Fed.  867;  Lewis  v.  Glass,  92 
Tenn.  147;  s.  c,  20  S.  W.  571:   In 


ternational  Tooth  Crown  Co.  v.  Car- 
michael,  44  Fed.  350;  Stanwood  v. 
Des  Moines  Sav.  Bank,  C.  C.  A., 
178  Fed.  670;  Asbestos  Shingle,  S. 
&  S.  Co.  v.  H.  W.  Johns-Manville 
Co.,  189  Fed.  611,  613;  Taylor  v. 
Herndon,  C.  C.  A.,  194  Fed.  946; 
Mitchell  v.  International  Tailoring 
Co.,  169  Fed.  145. 

6  Langdell's  Eq.  PI.,  §  123.  See 
Hilton  v.  Barrow,  1  Vesey  Jr.  284. 

7  Clarke  v.  Tipping,  4  Beav.  588; 
Toulmin  v.  Reid,  14  Beav.  499;  Jer- 
vis  v.  Berridge,  L.  R.  S  Ch.  357; 
Campbell  v.  Campbell,  4  Halst.  Eq. 
(N.  J.)  740;  Little  v.  Merrill,  62 
Me.  328. 

8  Fife  v.  Clayton,  13  Ves.  546; 
Stapylton    v.    Scott,    13    Ves.    425; 


GOO 


§  197] 


DEFINITION. 


691 


to  compel  the  issue  of  patents  in  interference  cases,9  contribu- 
tion between  co-defendants,10  and  a  few  instances  for  incidental 
and  collateral  questions  between  defendants,11  or  when  it  was 
impossible  to  give  the  plaintiff  the  relief  to  which  he  was  en- 
titled when  first  deciding  a  question  between  them.12  No  cross- 
bill was  necessary  for  such  relief  as  might  be  allowed  a  de- 
feudant  by  means  of  a  conditional  decree  imposing  terms  upon 
the  complainant  in  accordance  with  the  maxim  that  "he  who 
seeks  equity  must   do  equity." 13     The   subject-matter  of   the 


cross-bill  must  be  germane  to  that  of  the  original  bill 


14 


Bradford  v.  Union  Bank  of  Tenn., 
13  How.  57,  14  L.  ed.  49 ;  Northern 
R.  Co.  v.  0.  &  L.  C.  R.  Co.,  18  Fed. 
815.  But  see  s.  c,  20  Fed.  347.  See 
Newton  v.  Gage,  155  Fed.  598 ;  Det- 
tering  v.  Nordstrom  (C.  C.  A.),  148 
Fed.  81. 

9  Lockwood  v.  Cleveland,  6  Fed. 
721;  Foster  v.  Lindsay,  3  Dill.  127; 
Electrical  Accum.  Co.  v.  Brush  El. 
Co.,  44  Fed.  602;  but  may  be  filed 
if  the  defendant  so  chooses.  Ameri- 
can C.  B.  Co.  v.  Ligowski  C.  P.  Co., 
31  Fed.  466;  Electrical  Accum.  Co. 
v.  Brush  El.  Co.,  44  Fed.  602,  607. 
Contra,  Lockwood  v.  Cleveland,  6 
Fed.  721,  727. 

10  La  louche  v.  Lord  Dunsany,  1 
Sch.  &  Lef.  137,  166,  167;  s.  c,  as 
Chamley  v.  Lord  Dunsany,  2  Sch.  & 
Lef.  690,  718;  Langdell's  Eq.  PL, 
§   125. 

11  Federal  M.  &  S.  Co.  v.  Bunker 
Hill  &  Sullivan  M.  &  C.  Co.,  187 
Fed.  474;  Hood  v.  Clapham,  19 
Beav.  90.  See  Elliott  v.  Pell,  1 
Paige    (N.   Y.),  263. 

12  Langdell's  Eq.  PI.,  §  125. 

13  Farmers'  L.  &  Tr.  Co.  v.  Den- 
ver, L  &  G.  R.  Co.  (C.  C.  A.).  126 
Fed.  46;  supra,  §  153:  infra.  §  400. 

14  Bowker  v.  U.  S.,  186  U.  S.  135, 
46  L.  ed.  1090;  Great  Northern  Ry. 
Co.  v.  Western  Union  Tel.  Co.,  C. 
C.  A.,  174  Fed.  321;  Lovell  v.  Lath- 


am &  Co.,  186  Fed.  602 ;  U.  S.  Light 

6  Heating  Co.  v.  J.  B.  M.  El.  Co., 
C.  C.  A.,  194  Fed.  866 ;  Ledbetter  v. 
Mandell,  141  App.  Div.  (N.  Y.)  556, 
558,  affirmed  205  N.  Y.  537;  Great 
Northern  Ry.  Co.  v.  Western  Union 
Tel.  Co.,  174  Fed.  321;  Miller  v.  Uhl- 
man,  178  Fed.  233;  Langdell's  Eq. 
PI.,  §  124;  Daniell's  Ch.  Pr.  (5th 
Am.  ed.)    1550;   Field  v.  Schieffelin, 

7  J.  Ch.  (N.  Y.)  250,  11  Am.  Dec. 
441. 

Where  the  plaintiff's  right  de- 
pended upon  an  instrument  or  con- 
veyance which  is  not  void,  but  mere- 
ly voidable  on  account  of  fraud,  or 
otherwise,  the  defendant  could  in 
most  cases  only  set  up  the  facts 
showing  its  invalidity  by  a  cross- 
bill. Ford  v.  Douglas,  5  How.  143, 
12  L.  ed.  89;  Langdell's  Eq.  PI., 
§  131;  Jacobs  v.  Richard,  18  Beav. 
300 ;  Beddoes  v.  Pugh,  26  Beav.  407. 
416.  417;  Holderness  v.  Rankin,  2 
De  Gex,  F.  &  J.  258;  Eddleston  v. 
Collins,  3  De  Gex,  M.  &  G.  1,  16; 
Cliapin  v.  Walker,  2  McCrary,  175 ; 
Manley  v.  Mickle,  55  N.  J.  Eq.  563  j 
s.  c,  37  Atl.  738.  But  see  Dayton 
v.  Melick;  27  N.  J.  Eq.  (12  C.  E. 
Green),  362;  Pitts  v.  Pbwledge,  56 
Ala.  147:  Kennedy  v.  Green.  3  My. 
&  K.  699.  718;  Eyry  v.  Hughes;  2 
Ch.  D.  148;  Osborne  v.  Barge.  36 
Fed.  805;  Green  v.  Turner,  80  Fed. 


692 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS.     [§    197 


41.  So  where  the  defendant  claimed 
that  a  contract  upon  which  the 
plaintiff  relied  did  not  express  the 
true  agreement  between  the  parties, 
he  was  required,  except  when  the  bill 
prayed  specific  performance,  to  file  a 
cross-bill  for  the  reformation  of  the 
contract.  Commonwealth  T.  T.  & 
Tr.  Co.  v.  Cummings,  83  Fed.  767; 
Green  v.  Stone,  54  N.  J.'Eq.  387,  55 
Am.  St.  Rep.  577,  s.  c,  34  Atl. 
1099.  In  a  suit  to  set  aside  a 
contract,  the  defendant  could  not 
have  the  contract  enforced  unless  he 
filed  a  cross-bill,  Meissner  v.  Buck, 
28  Fed.  161 ;  Carnochan  v.  Christie, 
11  Wheat.  446,  447,  6  L.  ed. 
516;  when  in  a  proper  case  he 
could  also  obtain  a  decree  declar- 
ing the  contract  to  be  void.  La  Dow 
v.  E.  Bement  &  Sons,  66  Fed.  198; 
Duggar  v.  Dempsey,  43  Pac.  357; 
s.  c,  13  Wash.  396;  Bernhard  v. 
Bruner,  65  111.  App.  641;  North 
British  L.  &  N.  Ins.  Co.  v.  Lathrop, 
C.  C.  A.,  70  Fed.  429. 

Where  a  bill  was  filed  by  one 
tenant  in  common  of  a  mortgage 
against  the  two  others,  who  had 
bought  in  separate  parcels  the  mort- 
gaged property,  the  complainant 
seeking  to  recover  from  them  his 
share  of  the  purchase-money;  it  was 
held  that  a  cross-bill  could  not  be 
filed  by  one  defendant  against  the 
other  to  recover  a  balance  due  him 
"resulting  from  the  price  severally 
paid  and  to  be  paid  by  them,  as 
compared  with  the  respective 
amounts"  of  their  interests  in  the 
mortgage.  Weaver  v.  Alter,  3 
Woods,  152.  Where  a  receiver  of  a 
bank  filed  a  bill  to  set  aside  a  trans- 
fer of  shares  of  its  stock  by  one  de- 
fendant to  another,  and  to  hold  the 
transferor  liable  to  the  creditors  of 
the  bank  ;  it  was  held  that  the  trans- 
feree  could   not   file  a   cross-bill   to 


set  aside  the  transaction  as  between 
transferor  liable  to  the  creditors  of 
him  by  the  others.  Stuart  v.  Hay- 
den,  C.  C.  A.,  72  Fed.  402.  In  a 
suit  by  a  depositor  against  a  bank 
to  recover  the  amount  of  checks 
paid  on  forged  indorsements,  it  was 
held  that  defendant  could  not  file 
a  cross-bill  against  a  second  bank 
seeking  to  recover  over  in  case  it 
was  held  liable  to  plaintiff.  Pollard 
v.  Wellford,  99  Tenn.  113,  42  S.  W. 
23. 

Where  a  bill  was  filed  against  the 
stockholders  of  an  insolvent  corpo- 
ration to  collect  out  of  their  unpaid 
subscriptions  the  amount  of  a  judg- 
ment against  it,  a  cross-bill  filed  by 
one  who  had  paid  a  larger  propor- 
tion of  his  subscription  than  the 
rest,  praying  for  an  accounting,  and 
that  the  others  be  compelled  to  pay 
the  judgment,  was  held  bad  upon 
demurrer.  Putnam  v.  New  Albany, 
4  Biss.  365,  373.  Where  a  bill  was 
filed  by  a  remainderman  under  a 
will,  claiming  that  certain  provi- 
sions of  the  will  establishing  estates 
prior  to  his  own  were  invalid,  and 
praying  that  the  trustees  appointed 
by  the  will  convey  the  property  de- 
vised either  to  him,  or  to  the  heirs- 
at-law,  or  to  the  State;  a  bill  filed 
by  the  heirs-at-law,  not  impugning 
the  estate  of  the  equitable  tenant 
for  life,  but  praying  that  the  es- 
tates in  remainder,  some  of  which 
were  to  persons  yet  unborn,  should 
be  declared  invalid,  was  held  im- 
proper as  a  cross-bill.  Cross  v.  De 
Valle,  1  Wall.  5,  17  L.  ed.  515.  See 
Neal  v.  Foster,  34  Fed.  496,  498; 
Osborne  v.  Barge,  30  Fed.  805. 

Where,  on  a  bill  by  several  per- 
sons to  restrain  the  infringement  of 
a  patent  and  for  an  account,  the 
defenses  being  invalidity  of  the  pat- 
ent and  a  license,  the  court  sustains 


§  197] 


CROSS-BILLS. 


693 


the  patent  and  decrees  damages;  a 
bill  was  not  sustained  as  a  cross- 
bill which  set  up  a  judgment  in  an- 
other suit  against  one  of  the  com- 
plainants, and  prayed  that  they  all 
set  forth  and  discover  what  share 
of  the  damages  is  claimed  by  each, 
so  that  the  defendant  who  filed  the 
cross-bill  might  set  off  his  judgment 
against  the  share  claimed  by  his 
judgment  creditor.  Rubber  Co.  v. 
Goodyear,  9  Wall.  807. 

In  a  suit  by  an  administrator  to 
recover  assets  it  was  held  that  a 
cross-bill  was  demurrable  which 
sought  an  accounting  of  the  admin- 
istration of  the  estate  of  the  intes- 
tate's father;  although  that  would 
have  resulted  in  increasing  the  es- 
tate held  by  the  plaintiff  and  all 
the  necessary  parties  were  before 
the  court.  Harrison  v.  Perea,  168 
U.  S.  311,  42  L.  ed.  478;  s.  c.  as 
Perea  v.  Harrison,  7  N.  H.  666,  41 
Pac.  529.  Where  to  a  bill  for  the 
cancellation  of  certain  certificates  of 
stock  because  unlawfully  issued,  the 
defendants  alleged  by  a  cross-bill 
that  defendant  corporation  had  de- 
cided to  cease  the  manufacture  of 
goods  for  a  time,  and  that  complain- 
ants had  directed  the  concern  to 
continue  operations,  and  asked  to 
have  complainants  restrained  from 
further  interference;  it  was  held 
that  the  cross-bill  should  be  stricken 
out  as  foreign  to  the  subject-matter 
of  the  original  bill.  Allen  v.  Fury, 
53  N.  J.  Eq.  35,  30  Ail.  551.  On 
a  suit  to  restrain  the  enforcement 
of  a  judgment,  and  to  establish  as 
a  set-off  a  legal  claim,  a  cross-bill 
seeking  a  settleemnt  of  a  partner- 
ship alleged  to  have  formerly  ex- 
isted between  the  parties  was 
stricken  out  as  foreign  to  the  sub- 
ject-matter of  the  original  bill. 
O'Neill  v.  Perryman,   102  Ala.   522, 


14  South.  898.  Where  the  plain- 
tiff, claiming  the  exclusive  right 
under  a  contract  to  use  the  name 
of  defendant  in  the  sale  of  patent 
medicines,  filed  a  bill  against  the 
latter  to  enjoin  a  violation  thereof, 
and  the  latter  filed  an  alleged  cross- 
bill to  enjoin  complainant  from 
making  use  of  the  name  not  au- 
thorized by  the  contract  it  was  held 
that  this  latter  bill  was  not  a  true 
cross-bill,  but  an  original  bill. 
Chattanooga  Medicine  Co.  v.  Thed- 
ford,  58  Fed.  347.  See  also  Colton 
v.  Scott,  97  Ala.  447.  Where  a  bill 
was  filed  to  restrain  a  sale  under  an 
execution,  the  defendant  was  allowed 
to  file  a  cross-bill  praying  a  decree, 
declaring  that  he  had  a  lien  upon  the 
property  on  which  he  had  levied,  ap- 
pointing a  receiver,  and  directing 
the  sale  of  such  property.  Chica- 
go, M.  &  St.  P.  Ry.  Co.  v.  Third 
Nat.  Bank,  134  U.  S.  276,  33  L.  ed. 
900.  See  Remer  v.  McKay,  38  Fed. 
164.  Where  the  mortgagee  filed  a 
bill  to  collect  rents  from  a  lessee 
and  a  sublessee  of  the  mortgaged 
railroad,  and  for  a  declaration  that 
the  lease  was  binding  upon  the  sub- 
lessee, a  cross-bill  by  the  lessee 
against  the  mortgagor,  who  was  a 
defendant  to  the  original,  seeking 
a  cancellation  of  the  lease,  was  held 
properly  filed.  Jesup  v.  Illinois 
Cent-.  R.  Co.,  43  Fed.  483.-  It  has 
been  held  that  a  cross-bill  might  be 
filed  in  a  suit  to  foreclose  a  me- 
chanic's lien,  for  the  cancellation  of 
the  record  of  the  lien  with  damages 
for  a  breach  of  the  mechanic's  con- 
tract (Springfield  M.  Co.  v.  Bar- 
nard S.  Mfg.  Co.,  81  Fed.  261)  ;  in 
a  suit  to  foreclose  a  vendor's  hen, 
for  the  foreclosure  of  a  subsequent 
vendor's  lien  after  the  cross-eom- 
plainant  had  secured  the  payment 
of    the    amount    due    the    original 


694 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS".     [§    198 


§  198.  Counter-claims.  In  the  New  York  Code  of  Pro- 
cedure, David  Dudley  Field  substituted  a  counter-claim  for  a 
cross-bill.  His  reform  was  adopted  in  the  English  Judicature 
Act.1  The  new  Equity  Rules  have  followed  these  precedents 
and  provide :  that  the  answer  "may,  without  cross-bill,  set  out 
any  set-off  or  counter-claim  against  the  plaintiff  which  might  be 
the  subject  of  an  independent  suit  in  equity  against  him,  and 
such  set-off  or  counter-claim,  so  set  up,  shall  have  the  same  effect 
as  a  cross-suit,  so  as  to  enable  the  court  to  pronounce  a  final 
judgment  in   the   same   suit  both   on  the   original  and  cross- 


plaintiff  (Cox  v.  Price,  2  Va.  Dec. 
170,  22  S.  E.  512)  ;  in  a  suit  for  the 
cancellation  of'  a  lease  for  the  re- 
turn of  property  delivered  thereun- 
der (Pullman's  P.  C.  Co.  v.  Central 
Tr.  Co.,  171  U.  S.  138,  43  L.  ed. 
108)  ;  in  a  suit  by  a  street  railway 
company  to  enjoin  a  city  from  for- 
feiting a  franchise,  by  a  mortgagee 
for  the  appointment  of  a  receiver  to 
borrow  the  funds  needed  for  payment 
to  prevent  the  forfeiture.  Union 
Street  Ry.  Co.  v.  City  of  Saginaw, 
115  Mich.  300,  73  N.  W.  243.  Where 
an  insurance  company  had  procured 
an  injunction  against  a  suit  upon 
a  policy  which  contained  a  limita- 
tion clause,  the  court  sustained  a 
cross-bill  for  a  recovery  of  the 
amount  of  the  policy  on  the  ground 
that  a  State  court  of  common  law 
might  hold  that  the  injunction  did 
not  extend  the  period  for  bringing 
suit.  North  B.  &  M.  Ins.  Co.  v. 
Lathrop,  C.  C.  A.,  63  Fed.  508.  In 
a  suit  to  foreclose  a  mortgage,  giv- 
en to  secure  a  note  for  the  price  of 
property  sold;  it  was  held,  that  an 
answer  setting  up  fraud  in  the  in- 
ducement of  the  sale  as  a  defense  to 
the  note,  and  a  cross-bill  for  a  re- 
.-.ei^ion  of  the  contract,  because  of 
the  same  fraud,  were  not  incon- 
sistent.    Richardson  v.  Lowe,  C.  C. 


A.,  149  Fed.  G25.  It  has  been  held 
that  a  discharge  in  bankruptcy 
pending  a  suit  (Banque  Franco- 
Egyptienne  v.  Brown,  24  Fed.  106, 
107),  the  right  to  equitable  set-off 
(Meek  v.  McCormick  (Tenn.  Ch.), 
42  S.  W.  458.  See  Carlwright  v. 
Clark,  4  Mete.  (Mass.)  104;  Derby 
v.  Gage,  38  111.  27),  and  the  right 
of  sureties  to  subrogation  (Stokes 
v.  Little,  65  111.  App.  255),  and  an 
agreement  to  settle  the  litigation, 
made  pending  the  suit  (Snyder  v. 
De  Forest  Wireless  Telegraph  Co., 
154  Fed.  142),  can  only  be  pleaded 
by  a  defendant  in  a  cross-bill.  In 
such  eases,  the  cross-bill  is  in  the 
nature  of  a  supplemental  bill.  In- 
fra, §  231.  A  decree  dismissing,,  a 
bill  to  enjoin  an  action  of  ejectment 
cannot  determine  the  title  to  the 
land  in  the  absence  of  a  cross-bill. 
Wood  v.  Collins,  60  Fed.  130.  But 
it  has  been  held  that  a  defendant 
who  is  not  in  possession  of  land, 
when  a  bill  is  filed  against  him  to 
remove  a  cloud  to  the  title  to  the 
same,  may,  if  he  can  show  a  better 
title  than  that  of  the  complainant, 
obtain  possession  of  the  land  by 
cross-bill.  Greenwalt  v.  Duncan,  16 
Fed.  35. 

§  19S.     136  Vic.  c  66,  §  24,  Or- 
der XXI. 


§  198] 


COUNTER-CLAIMS. 


69; 


claims."  2  If  the  counter-claim  is  one  which  affects  the  rights 
of  other  defendants  they  or  their  solicitors  shall  be  served  with 
a  copy  of  the  same  within  ten  days  from  the  filing  thereof.''  3 
These  rules  impose  no  penalty  for  a  failure  to  state  a  counter- 


2Eq.  Rule,  30. 

3Eq.  Rule  31.     Under  the  former 
practice  in  a  case  where  the  origi- 
nal bill  prayed  a  confirmation  of  a 
title  under  a  deed  absolute  in  form, 
a   cross-bill   by    one   of   the   defend- 
ants, claiming  that  the  deed  be  de- 
clared a  trust  deed  for  her  sole  ben- 
efit, was  held  to  be  germane  to  the 
subject-matter  of  the  suit,  and  suf- 
ficient to  support  a  decree  binding 
the  other  defendants  as  well  as  the 
plaintiff.      Kingsbury    v.    Ruckner, 
134  U.  S.  650,  677,  33  L.  ed.  1047, 
1057.      See    Griffin    v.    Griffin,    112 
Mich.  87,   70  N.  W.  423;    Feige  v. 
Rabcock,  111  Mich.  538,  70  N.  W.  7. 
A   defendant   to   a   foreclosure    suit 
may  file  a  cross-bill,  to  enforce  an 
agreement  by  a  codefendant  to  con- 
vey   him    part    of    the    mortgaged 
premises.      Peacock,    Hunt   & .  West 
Co.    v.    Thaggard,    128    Fed.    i005. 
Upon  a  bill  to  set  aside  deeds,  the 
grantors     and    grantees     of     which 
were  defendants,  the  court  allowed 
a  cross-bill  by  the  grantees  against 
their  codefendant,  the  grantor,   for 
the  recovery  of  the  purchase  money 
paid  by  them  for  the  land,  and  for 
the  cancellation  of  notes  given  for 
deferred  payments,  in  case  the  deeds 
should  be  set  aside.     Craig  v.  Door, 
C.  C.  A.,  145  Fed.  307.     In  suits  to 
establish   and   protect  water   rights 
against    separate    appropriators    of 
water  from  the  same  stream,  cross- 
bills, were  allowed  between  the  sev- 
eral defendants  to  protect  their  re- 
spective   rights  against  each   other. 
Ames  Realty  Co.  v.  Rig  Indian  Min. 
Co..  146  Fed.  166;   Miller  &  Lux  v. 
Rickev  Land  &  Cattle  Co.,  146  Fed. 


574.      Rut   it   was   held  that   cross- 
bills by  the  defendants  against  the 
complainant,   asserting  their   rights 
and    seeking    for    affirmative    relief, 
were  demurrable.     Miller  &  Lux  v. 
Rickey  Land  &  Cattle  Co.,  146  Fed. 
574;  Van  Vibbler  v.  Hilton,  84  Cal. 
585,  24  Pac.  308.    In  a  suit  to  fore- 
close a  mortgage,  it  was  held  that 
a  defendant   holding  another   mort- 
gage on  the  same  and  other  proper- 
ty  might,   by   cross-biri,   obtain   af- 
firmative   relief    against    other    de- 
fendants, judgment  creditors  of  the 
mortgagor,   and   thus   establish   the 
validity    of    his    mortgage.       First 
Nat.   Rank  v.  Salem  Capital   Flour 
Mills  Co.,  31  Fed.  580.    Rut  a  cross- 
bill was  not  allowed  upon  a  credit- 
or's bill,  when  the  defendant  sought 
thus  to  have  adjusted  the  indebted- 
ness  between   themselves.      Vanner- 
son  v.  Leverett,  31  Fed.  376.    Where 
the  mortgagee  filed  a  bill  to  collect 
rents  from  a  lessee  and  a  sublessee 
of  the  mortgaged  railroad,  and  for 
a    declaration    that    the    lease    was 
binding  upon  the  sublessee,  a  cross- 
bill by  the  lessee  against  the  mort- 
gagor, who  was  a  defendant  to  the 
original,    seeking   a    cancellation    of 
the   lease,   was   held   properly   filed. 
Jesup   v.   Illinois   Cent.    R.   Co.,   43 
Fed.  483.    It  was  said  that  where  an 
original    bill    sought    to    enforce    an 
equitable   title    against    several    de- 
fendants, it  was  improper  for  a  de- 
fendant to   file  a   cross-bill   seeking 
the    enforcement    of    a    title    para- 
mount    against     his     codefendants. 
Ayres   v.   Carver,    17   How.   594,   15 
L.  ed.  179. 


GOG 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS.     [§    198 


claim  arising  out  of  the  transaction  which  is  the  subject-matter 
of  the  suit,  but  by  implication  they  forbid  their  assertion  in  an 
independent  suit,  and  a  judgment  against  the  defendant  would 
undoubtedly  be  a  bar  to  any  subsequent  attempt  to  assert  them.4 
In  determining  when  a  counter-claim  arises  out  of  the  trans- 
action which  is  the  subject-matter  of  the  suit,  cases  under  the 
former  practice  in  equity  and  those  under  the  code  practice 
may  be  considered.  Where  pending  a  suit  by  an  insurance  com- 
pany to  cancel  a  policy  for  misrepresentation  the  insured  died 
and  by  supplemental  bill  the  beneficiary  was  restrained  from 
suing  at  law  upon  the  policy,  it  was  held  that  he  could  only 
assert  his  claim  by  a  cross-bill.5  It  has  been  held  under  the 
Xew  York  Code  of  Civil  Procedure  that  the  following  causes 
of  action  arise  out  of  the  contract  or  transaction  set  forth  in 
the  complaint  as  the  foundation  of  the  plaintiff's  claim  or  were 
connected  with  the  subject  of  the  action :  In  an  action  brought 
to  recover  the  purchase  price  of  stock,  a  claim  that  the  con- 
tract of  sale  was  procured  by  fraudulent  representations,  with  a 
prayer  that  it  should  be  rescinded.6  In  an  action  by  an  heir  to 
set  aside  so  much  of  a  will  as  created  a  trust,  a  counter-claim 
by  the  defendant  trustee  for  the  rents  of  the  land  collected 
by  the  plaintiff  since  the  testator's  death.7  In  a  foreclosure 
suit,  a  counter-claim  for  usury  and  to  set  aside  an  equity  by  the 
mortgage  on  the  title  to  the  premises.8  In  an  action  to  enforce 
the  statutory  lien  created  on  an  award  in  condemnation  pro- 
ceedings, a  counter-claim  for  a  breach  of  a  contract  for  the  sale 
of  the  premises  condemned,  which  was  made  during  the  con- 
demnation proceedings.9  In  an  action  to  enjoin  a  foreclosure 
action,  a  counter-claim  for  rent  due  from  the  eqYiitable  owner  of 
the  mortgage.10  It  has  been  held,  in  England,  that  in  an  action 
by  the  vendor  for  specific  performance,  the  defendant  may,  by 
a  counter-claim,  pray  for  the  review  of  a  previous  decision  as 


4  Odger's    Pleading.    4th    ed.,    pp. 
228-230,  supra,  §  186. 

5  Royal  Union  Mut.  Life  Ins.  Co. 
v.  Wynn,  177  Fed.  289. 

6  Delano  v.  Rice,  23  App.  Div.   (N. 
Y.)    327. 

7  O'Brien  v.  Garniss,  25  Hun   (X. 
Y.)   446. 

8  Myers  v.  Wheeler,  24  App.  Div. 


(X.  Y.)  327.  48  X.  Y.  Supp.  611; 
Queen  City  Bank  v.  Brown,  75  Hun, 
(X.  Y.)  250,  58  St.  Rep.  286.  28  X. 
Y.  Supp.  1016. 

9  Cottle  v.  X.  Y.,  W.  S.  &  B.  Ry. 
Co.,  27  App.  Div.  (X.  Y.)  604.  50 
X.  Y.  Supp.  1008. 

10  Austin  v.  Rapelye,  45  St.  Rep. 
480. 


§  198] 


COUNTER-CLAIMS. 


697 


to  the  title.11  The  following  cases,  amongst  others,  under  the 
New  York  Code  have  held  that  counter-claims  could  not  be 
pleaded.  In  an  action  brought  to  restrain  a  party  from  inter- 
ference with  the  plaintiff's  trade,  a  counter-claim  for  damages 
arising  out  of  the  breach  of  a  contract  between  some  of  the 
plaintiffs  and  the  assignor  of  the  defendant.12  In  an  action 
to  set  aside  an  assignment  and  to  procure  a  reassignment  of 
bonds  and  mortgages,  a  counter-claim  that  the  agent,  acting  un- 
der a  power  of  attorney  from  the  plaintiff,  together  with  two 
others,  acting  under  a  previous  power  of  attorney,  had  subse- 
quently assigned  to  the  defendant  three  other  bonds  and  mort- 
gages which  plaintiff  refused  to  deliver.13  In  an  action  to  re- 
cover money  collected  under  color  of  a  contract,  by  fraud,  a 
counter-claim  for  a  balance  due  for  work  under  the  contract.14 
In  an  action  to  recover  a  debt  for  which  a  lien  had  been  filed, 
a  counter-claim  for  the  expense  of  removing  the  lien  and  of 
preparation  of  the  defense  of  an  action  anticipates  to  foreclose 
the  same.15  The  rules  furthermore  permit  any  set-off  or  coun- 
ter-claim which  might  be  the  subject  of  an  independent  suit 
in  equity  against  the  plaintiff.16  This  abrogates  the  former 
doctrine,  that  a  cross-bill  must  be  germane  to  the  subject-matter 
of  the  original  bill.17  The  distinction  between  a  set-off  and  a 
counter-claim  may  be  one  of  importance,  since  in  case  of  bank- 
ruptcy or  insolvency  of  the  complainant  the  defendant  might  be 
allowed  the  full  amount  of  his  set-offs  and  be  obliged  to  share 
proportionately  with  the  other  creditors  in  the  dividend  upon 
his  counter-claims.18     "A  set-off  is  a  statutory  defense  to  an 


"Scott  v.  Alvarez,  (1895),  1  Ch. 
596. 

12  Sugden  v.  Magnolia  Metal  Co., 
58  App.  Div.    (N.  Y.)    236. 

13  Bradhurst  v.  Townsend,  11 
Hun    (N.  Y.)    104. 

14  People  v.  Dennison,  84  N.  Y. 
272,  affirming  81  N.  C.  (N.  Y.)  129, 
affirming  59  How.  Pr.    (N.  Y.)    157. 

is  Biershenk  v.  Stokes,  18  N.  Y. 
Supp.  854,  reversing  43  St.  Rep.  (N. 
Y.)    788. 

16  Eq.  Rule  .".0. 

17  Jt  has  been  held  that  a  cross- 
bill   may    be    filed    in    a    suit    to 


foreclose  a  mechanic's  lien,  for  the 
cancellation  of  the  record  of  the  lien, 
with  damages  for  a  breach  of  the 
mechanic's  contract  (Springfield  M. 
Co.  v.  Barnard  S.  Mfg.  Co.,  81  Fed. 
261)  ;  in  a  suit  to  foreclose  a  ven- 
dor's lien,  for  the  foreclosure  of  a 
subsequent  vendor's  lien  after  the 
cross-complainant  has  secured  the 
payment  of  the  amount  due  the 
original  plaintiff  (Cox  v.  Price,  2 
Va.  Dec.  170,  22  S.  E.  512).  See 
supra,  note  3  and  §  197,  note  14. 

iSOdgers   Principles   of  Pleading, 
4th  ed.,  p.  228. 


698 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS.     [§    198 


action;  a  counterclaim  is  a  cross-action."19  In  England,  it  lias 
been  said  that  "set-off  is  the  creature  of  statute ;  to  be  allowed 
a  set-off  you  must  show  a  statutory  right."  20  There  a  set-off 
remains  precisely  what  it  used  to  be  under  the  statutes  of  George 
II.21  It  must  there  be  a  cross-claim  for  a  liquidated  amount  and 
it  can  be  pleaded  only  to  a  liquidated  claim.22  There  may  also 
be  some  importance  in  the  distinction  between  a  defense  and  a 
counter-claim,  since  a  reply  is  required  to  the  latter,  but  not 
without  special  order  to  the  former.23  The  former  cases  holding 
when  a  cross-bill  should  be  filed  and  when  not  may  consequently 
be  useful  in  this  respect.  If  the  facts  which  a  defendant  wishes 
to  set  up  destroy  the  plaintiff's  apparent  cause  of  action,  they 
constitute  a  defense  and  should  be  so  pleaded ;  but  if  they  only 
furnish  a  reason  why  the  court  should  make  a  bill  depriving  the 
plaintiff  of  his  cause  of  action,  they  must  be  set  forth  as  a 
counter-claim.24  It  was  formerly  held  that  a  discharge  in  bank- 
ruptcy pending  a  suit,25  and  the  right  of  sureties  to  subro- 
gation,26 and  an  agreement  to  settle  the  litigation  made  pending 
the  suit,27  could  only  be  pleaded  by  a  defendant  in  a  cross-bill. 
In  such  cases,  the  cross-bill  was  in  the  nature  of  a  supple- 
mental bill.28 

In  England,  a  counterclaim  must  always  seek  relief  against 
the  plaintiff,  either  alone  or  along  with  some  third  person ;  29  but 
to  a  joint  claim  by  two  plaintiffs,  a  counter-claim  against  them 
jointly,  or  a  separate  counter-claim  against  each  of  them  has 


19  Lord  Esher,  M.  R.,  in  Sykes  v. 
Sacerdoti,  15  Q.  B.  D.  423. 

20  Liskeard,  etc.,  Ry.  Co.  v.  Lis- 
keard  &  Caradon  Ry.  Co.,  18  Times 
Rep.  1;    Ann.  Pr.   1913,  p.  360. 

212  Geo.  II,  Chi  22;  8  Geo.  II, 
Ch.  24. 

22Rees  v.  Watts,  11  Ex.  410; 
Ann.  Pr.  1013,  p.  360. 

23  Eq.  Rule  31. 

24  See  Langdell's  Eq.  PL,  §  155. 
Therefore,  when  a  bill  is  iiled  by 

a  mortgagor  against  a  mortgagee 
for  redemption,  if  the  defendant  can 
only  show  that  the  plaintiff  is  not 
entitled    to    redeem,    he    might    ob- 


tain the  benefit  of  a  foreclosure 
without  filing  a  cross-bill  for  the 
purpose;  for  the  dismissal  of  a  bill 
to  redeem  upon  its  merits  is  itself 
a  foreclosure.  Langdell's  Eq.  PL, 
§  123.  See  Hilton  v.  Barrow,  1  Ves. 
Jr.  284. 

25  Banque  Franco-Egyptienne  v. 
Brown,  24  Fed.  106.  107. 

26  Stokes  v.  Little,  65  111.  App. 
255. 

27  Snyder  v.  De  Forest  Wireless 
Telegraph  Co.,  154  Fed.  142. 

28  infra.   §§   231,  234. 

29  Furness  v.  Booth,  4  Ch.  D.  586; 
Harris  v.  Gamble,  6  Ch.  D.  748; 
Ann.  Pr.  1913,  p.  363. 


199] 


NEW    PARTIES. 


699 


been  allowed ; 30  or  the  defendant  may  counter-claim  against  one 
plaintiff  and  deny  all  liability  to  the  other,  and  then  recover  a 
judgment  against  one  of  them.31  It  has  been  held  in  England 
that  the  plaintiff  may  plead  a  counter-claim  against  a  counter- 
claim interposed  by  the  defendant;32  provided,  at  least,  that  he 
does  not  pray  for  an  affirmative  judgment  upon  the  same.33  It 
has  been  held  that  matter  described  in  the  answer  as  an  "an- 
swer by  way  of  counter-claim,"  may  be  treated  as  a  counter- 
claim ; 34  but  that  where  the  matter  was  described  as  a  defense 
and  nothing  was  shown  to  indicate  that  the  pleader  intended  to 
set  up  a  counterclaim  as  such,  he  was  precluded  from  insisting 
that  he  set  one  up.35  Where  the  matter  was  not  described  as 
a  counter-claim,  but  the  prayer  asked  that  the  paper  be  made  a 
cross-petition  against  the  plaintiff,  who  replied  to  the  same,  it 
was  treated  as  a  counter-claim.36 

§  199.  New  parties  to  cross-bills  and  counter-claims. 
It  was  said  by  a  judge  of  great  authority  that  new  parties  could 
not  be  introduced  into  a  case  by  a  cross-bill.1  It  was  held,  that 
this  could  not  be  done  when  the  result  would  be  to  arraign 
parties  of  the  same  citizenship  upon  different  sides  of  a  contro- 
versy, that  arose  before  the  suit  was  brought  and  over  which  a 
Federal  court  could  not  have  original  jurisdiction.2  A  junior 
mortgagee  was  not  allowed  to  file  a  cross-bill  in  a  foreclosure  suit, 
so  as  to  procure  the  foreclosure  of  his  own  mortgage,  when,  on 
account  of  his  citizenship,  the  court  would  have  had  no  juris- 


30  M.,  S.  &  L.  Ry.  Co.  v.  Brooks,  2 
Ex.  D.  243. 

31  Hall  v.  Fairweather,  18  Times 
Rep.  58;  Ann.  Pr.  1913,  p.  363. 

32Toke  v.  Andrews,  8  Q.  B.  D. 
428. 

33Renton  Gibbs  &  Co.,  L'd.  v. 
Neville  &  Co.,   (1900),  2  Q.  B.  181. 

34  Johnson  v.  Sherwood,  34  Ind. 
App.  490,  73  N.  E.   180. 

35  Lafond  v.  Lassere,  26  Misc.  (N. 
Y.)  77,  50  X.  Y.  Supp.  459;  State 
v.  Ceughran,  19  South  Dak.  271,  103 
N.  W.  31.  Contra,  Mills  v.  Rosen- 
baum.  103  Ind.  152,  2  N.  E.  313. 
But  see   Mason  v.  Mason,  46  Misc. 


(N.  Y.)  361,  94  N.  Y.  Supp.  868, 
34  Civ.  Pro.  R.  193. 

36  Hutchings  v.  Dean,  11  Ky.  Law 
Rep.  310. 

§  199.  iMr.  Justice  Curtis  in 
Shields  v.  Barrow,  17  How.  130, 
145,  15  L.  ed.  158,  162.  See  Ran- 
dolph v.  Robinson,  2  N.  J.  L.  171  : 
Patton  v.  Marshall,  C.  C.  A.,  26 
L.R.A.(N.S.)    127,  173  Fed.  350. 

2  Shields  v.  Barrow,  17  How.  130, 
15  L.  ed.  158;  Patton  v.  Marshall, 
C.  C.  A.,  26  L.R.A.(N.S.)  127,  173 
Fed.  350.  Similar  is  Wright  v. 
Frank,  61  Miss.  32. 


■oo 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS.     [§    199 


diction  of  an  original  bill  for  that  purpose.3  It  has  been  said: 
that  a  cross-bill  cannot  be  filed  to  set  aside  a  compromise  of  the 
original  suit,  under  which  deeds  have  been  made  to  a  person  not 
an  original  party  thereto.4 

In  a  suit  in  equity  by  the  purchaser  of  coal  rights  in  lands  for 
a  specific  enforcement  of  the  contract,  the  terms  of  which  were 
in  dispute  between  the  parties,  the  defendant  cannot  by  cross- 
bill bring  in  as  parties  defendant  the  agents  who  made  the  con- 
tract, on  his  behalf  and  with  his  approval,  to  have  their  right 
to  commissions  determined,  a  controversy  which  has  no  rele- 
vancy to  the  principal  suit,  and  in  which  complaint  has  no  in- 
terest.5 It  has  been  said  that  when  the  interests  of  the  defend- 
ant require  the  presence  of  new  parties,  he  should  take  the  ob- 
jection of  non-joinder  and  compel  the  plaintiff  to  amend.6  It 
was  said  later  that  such  an  objection  could  be  raised  only  by 
the  new  parties  thus  sought  to  be  brought  in.7  The  rule  seems 
now  to  be  well  established  that,  although  new  parties  cannot  be 
introduced  by  a  cross-bill  which  seeks  discovery  only  or  which 
is  purely  defensive,  they  may  when  it  seeks  affirmative  relief 
against  the  complainants  and  their  presence  is  necessary  to  the 
determination  of  the  controversy  as  thus  enlarged.8  A  citizen  of 
the  District  of  Columbia,  who  had  bought  an  interest  in  the 
property  affected  pending  the  litigation,  was  allowed  to  file  a 
cross-bill  to  protect  his  interest  in  the  property.9  Upon  a  bill  in 
equity  filed  by  the  lessors  of  an  oil  lease  against  the  lessee,  for 
a  discovery,  an  accounting  of  royalties,  and  specific  performance 


3  Newton  v.  Gage,  155  Fed.  598. 
But  see  Lilienthal  v.  MeCormiek, 
C.  C.  A.,  117  Fed.  89,  96. 

4Bunel  v.  O'Day,  125  Fed.  303, 
319. 

5  Pattern  v.  Marshall.  C.  C.  A.,  26 
L.R.A.(N.S.)    127,  173  Fed.  350. 

6  Patton  v.  Marshall.  C.  C.  A.,  20 
L.E.A.(N.S.)    127.  173  Fed.  350. 

?  Brandon  Mfg.  Co.  v.  Prime,  14 
Blatchf.  371.  Contra.  Gregory  v. 
Pike.  C.  C.  A.,  67  Fed.  837.  holding 
that  the  complainant  mar  object  to 
a  cross-bill  filed  by  a  stranger  claim- 
ing an  interest  in  the  subject  of  the 
litigation.       See     Thurston     v.     Big 


Stone  Gap  Imp.  Co.,  86  Fed.  4S4. 

8  Brandon  Mfg.  Co.  v.  Prime,  14 
Blatchf.  371 :  Kanawha  Lodge  v. 
Swann,  37  W.  Va.  170;  s.  c,  16  S. 
E.  462:  Allen  v.  Tritch.  5  Colo.  222, 
228;  Hurd  v.  Case,  32  111.  45,  83 
Am.  Dec.  249;  Jones  v.  Smith.  14 
111.  229;  Blodgett  v.  Hobart,  IS  Vt. 
414:  Hildebrand  v.  Beasley,  41  S. 
(Tenn.)  121,  123;  Sharp  v.  Pike's 
Adm'r,  5  B.  Mon.  (Ky. )  155;  Cos- 
ter's Ex'rs  v.  Bank  of  Ga.,  24  Ala. 
39. 

9  Ulman  v.  Iaeger's  Adm'r,  155 
Fed.  1011. 


§    199]  NEW    PARTIES.  701 

of  the  contract  to  deliver  oil  as  royalty,  the  defendant  was 
allowed  to  file  a  cross-bill,  bringing  in  as  defendants  other  claim- 
ants of  ownership  to  parts  of  the  land,  and  praying  that  their 
rights  be  determined  bv  the  court.10  In  a  suit  to  restrain  the 
infringement  of  a  patent,  a  cross-bijl  was  sustained;  which 
brought  in  as  defendant  to  it  a  new  party,  the  assignor  of  the 
patent  to  the  original  complainant;  claimed  that  that  assignor 
had  previously  assigned  the  equitable  title  thereto  to  the  orator 
of  the  cross-bill,  and  that  the  legal  assignee  had  bought  with 
notice  thereof;  and  prayed  a  conveyance  of  the  patent  and  an 
injunction  against  further  annoyance.11  Parties  brought  in  as 
defendants  to  a  cross-bill  may,  in  turn,  exhibit  cross-bills  when 
the  same  are  necessary  or  proper  to  terminate  the  litigation.12 
A. stranger  to  a  suit  cannot  file  a  cross-bill  without  permission 
from  the  court.13  A  cross-bill  filed  by  a  stranger  without  such 
permission  may  be  stricken  from  the  file.14  Permission  will  not 
be  granted  if  his  claim  is  not  germane  to  that  set  forth  in 
the  original  bill.15  Thus,  when  a  trustee  in  bankruptcy  sued  to 
set  aside  a  preferential  transfer  and  to  recover  the  proceeds  of 
the  same,  a  party  claiming  the  lien  upon  the  fund  was  not 
permitted  to  intervene  and  to  enforce  the  same  by  cross-bill.16 
It  has  been  said  that  under  the  practice  of  the  Federal  courts 
one  claiming  an  interest  in  the  subject  of  litigation  cannot 
properly  be  made  a  party  defendant  against  the  objection  of 
complainant,  and  hence  a  cross-bill  filed  by  a  person  thus  com- 
ing into  the  cause  should  be  dismissed.17  In  a  suit  to  foreclose 
a  chattel  mortgage,  a  party  claiming  a  prior  chattel  mortgage,, 
made  by  one  of  the  original  defendants  upon  part  of  the  prop- 
erty, may  be  allowed  to  intervene  and  file  a  cross-bill  to  estab- 

10  Robinson  v.  Brast,  C.  C.  A.,  149  l*  Bronson  v.  La  Crosse  &  M.  R. 
Fed.  149.  Co.,  2  Wall.  283,  294,  303.  17  L.  ed. 

11  Brandon  Mfg.  Co.  v.  Prime,  14  725,  729;  Putnam  v.  New  Albany, 
Blatclif.   371.  4   Biss.   365,   3G7. 

12  Blair  v.  Illinois  S.  Co.,  42  X.  15  Lovell  v.  Latbam  &  Co.,  186 
E.  895;  s.  c,  159  111.  350.  31  L.R.A.  Fed.   6<i2. 

269.  i6  1 1' id. 

13  Bronson  v.  La  Crosse  &  M.  R.  « Gregory  v.  I'ike,  C.  C.  A.,  67 
Co..  2  Wall.  283,  17  L.  ed.  725:  Fed.  837.  See  Tbruston  v.  Big  Stone 
Forbes   v.   Memphis,   E.   P.   &   P.   R.  G.  I.  Co.,  86  Fed.  484. 

Co..  2  Woods,  323:  Gregory  v.  Pike, 
67  Feu.  837:  infra,  §  258. 


'02 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS.     [§    199 


lish  his  rights.18  It  has  been  held  that  upon  a  stockholders'  bill 
to  set  aside  a  transfer  of  property  because  of  the  fraud  and 
gross  negligence  of  its  president,  such  president,  although  not 
an  original  party,  may  be  allowed  to  intervene  and  file  a  cross- 
bill to  controvert  the  charges  against  him  in  the  bill.19  Upon 
a  stockholder's  bill  for  an  injunction,  against  the  election  of 
directors  at  the  annual  meeting  of  the  stockholders  of  a  corpor- 
ation, other  stockholders  not  original  defendants,  were  allowed 
to  file  a  cross-bill  praying  for  a  modification  of  a  preliminary 
injunction,  granted  in  accordance  with  the  prayer  of  the  origi- 
nal bill,  so  as  to  permit  the  election  of  the  directors  under  the 
supervision  of  a  master  in  chancery,  at  a  time  to-be  fixed  by  the 
court.20  Whether  under  the  new  Equity  Rules  a  new  party 
can  be  brought  in  by  a  counter-claim  has  not  yet  been  decided. 
In  England,  the  defendant  may  plead  a  counterclaim  against 
a  third  person  jointly  with  the  plaintiff;  provided  that  the 
relief  thus  sought  relates  to,  or  is  connected  with,  the  subject- 
matter  of  the  plaintiff's  claim  ;  21  even  though  such  third  person 
could  not  be  a  party  to  the  plaintiff's  original  claim ; 22  but  the 
plaintiff  must  be  a  party  to  such  a  counter-claim ; 23  and  a  third 
person  may  be  joined  with  the  plaintiff  as  defendant  to  the 
counterclaim,  although  he  would  be  liable  only  in  one  of  two 
inconsistent  alternatives;24  but  such  third  person  cannot 
counter-claim  in  the  action  against  either  plaintiff  or  defend- 
ant.25 A  joint  claim  against  two  partners  may  there  be  set  up 
as  a  counter-claim  against  a  separate  claim  by  one  of  them.28 
In  New  York  it  has  been  held  that  where  the  liability  was  joint 
and  several,  a  counter-claim  or  set-off  might  be  interposed ; 27 
but  otherwise  a  joint  demand  could  not  be  set  up  as  a  counter- 


is  Osborne  &  Co.  v.  Barge,  30  Fed. 
805. 

19  Brinckerhoff  v.  Holland  Tr.  Co., 
159  Fed.  191. 

20Bartlett  v.  Gates,  118  Fed.  66. 

21  Baker  v.  Gent.  9  Times  Bep. 
159;  Re  A  Debtor,  (1907),  23  Times 
Rep.  169 ;  S.  F.  Edge,  L'd.  v.  Weigel, 
<1907),  97  L.  T.  447. 

22  Turner  v.  Hednesford  Gas  Co., 
3  Ex.  D.  145. 


23  Furness  v.  Booth,  4  Ch.  D.  586; 
Harris  v.  Gamble,  6  C.  D.  748. 

24  Child  v.  Stenning,  5  Ch.  D.  695. 

25  Street  v.  Gover,  2  Q.  B.  D. 
498 ;  Alcoy,  etc.,  Co.  v.  Greenhill, 
(1896),  1  Ch.  19.  "Annual  Prac- 
tice,"  1912,  I,  361. 

26  Eyre  v.  Moreing,  W.  N.  1844, 
58.  See  Hodson  v.  Mochi,  8  Ch.  D. 
569. 

27  American  Guild  v.  Damon,  186 
N.  Y.  360. 


§    201]  PROCEEDINGS.  T03 

claim  when  one  only  of  the  obligors  28  or  obligees  29  was  a  party 

to  the  suit. 

§  200.  Time  of  filing  set-offs,  counter-claims  and  cross- 
bills. The  Equity  Kules  provide  for  the  assertion  of  set-offs 
and  counter-claims  in  the  answer  of  the  defendant,1  which  must 
be  filed  within  twenty  days  after  service  of  the  subpoena,  unless 
the  time  is  enlarged.2  They  authorize  the  subsequent  filing  of 
supplemental  pleadings  by  permission  of  the  court.3  Set-offs 
and  counter-claims  could  undoubtedly  then  be  filed,  provided 
they  arose  subsequent  to  the  original  answer  or  the  complainant 
was  ignorant  of  them  when  such  answer  was  made.4  Under 
the  former  practice,  a  cross-bill  might  be  filed  at  any  time  be- 
fore the  final  decree.5 

§  201.  Proceedings  upon  cross-bills.  It  was  the  better 
practice  for  a  defendant  to  apply  for  leave  before  filing  a  cross- 
bill.1 Permission  might  be  denied  for  laches.2  Ordinarily,  a 
refusal  to  grant  leave  would  not  be  reviewed  upon  an  appeal ; 3 
but  it  was  held  that  a  cross-bill  by  a  party  to  the  suit  might  be 

28  Baldwin  v.  Briggs,  53  How.  80;  §  201.  1  Indiana  &  St.  L.  R.  Co. 
Spofford  v.  Rowan,  6  N.  Y.  St.  Rep.  v.  Liverpool,  L.  &  G.  Ins.  Co.,  109 
250;  P.  &  S.  Mfg.  Co.  v.  Noel,  GO  U.  S.  168,  27  L.  ed.  895;  Brown  v.  L. 
N.  Y.  Superior  Ct.  207,  affirmed  138  C.  &  M.  W.  R.  Co.,  2  Wall.  283,  17 
N.  Y.  606.  L.  ed.  725;  International  T.  C.  Co. 

29  Windecker  v.  Mutual  Life  Ins.  v.  Carmichael,  44  Fed.  350 ;  Mercan- 
Co.,  12  App.  Div.  (N.  Y.)  73,  77  tile  Tr.  Co.  v.  Missouri,  K.  &  T.  Ry. 
N.  Y.  St.  Rep.  358,  43  N.  Y.  Supp.  Co.,  41  Fed.  8;  Brush  El.  Co.  v. 
358;  Nat.  St.  Bank  v.  Boylan,  2  Brush-Swan  El.  Co.,  43  Fed.  701; 
Abb.  N.  C.  (N.  Y.)  216;  Bockover  Brown  v.  Bell,  4  Hay.  (Tenn.),287; 
v.  Harris,  43  N.  Y.  Superior  Ct.  548.  Indiana  Mfg.  Co.  v.  Nichols  &  Shep- 

§  200.     1  Eq.  Rule  30.  ard  Co.,  190  Fed.  579.     Contra,  Neal 

2Eq.  Rules  12,  10.  v.  Foster,  34  Fed.  496,  498;   Beau- 

3Eq.  Rule  34;  infra,  §  231.  champ  v.  Putnam,  34  111.  378,  381. 

4  Ibid.  2  Under-Feed  Stoker  Co.  of  Amer- 

5  Morgan's  La.  &  T.  R.  &  S.  Co.  v.  ica  v.  Am.  Stoker  Co.,  169  Fed.  891. 
Texas  C.  R.  Co.,  137  U.  S.  171,  34  3  Indiana  &  St.  L.  R.  Co.  v.  Liv- 
L.  ed.  625,  a  cross-bill  for  a  fore-  erpool,  L.  &  G.  Ins.  Co.,  109  U.  S. 
closure  upon  a  default  subsequent  168,  27  L.  ed.  895.  Contra,  Beau- 
to  the  appointment  of  a  receiver  in  champ  v.  Putnam,  34  111.  378,  381. 
a  bill  quia  timet.     See  §  201,  infra* 


704 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS.     [§    201 


filed  with  the  answer  without  permission  of  the  court.  A 
cross-bill  should  not  be  filed  before  the  answer  to  the  original 
bill.5  It  should  regularly  be  filed  with,  or  immediately  after, 
the  defendant's  answer ; 6  but  may  be  allowed  any  time  before 
the  final  decree.7  In  a  case  where  the  defendant,  after  answer, 
learned  of  facts  tending  to  show  that  the  plaintiff  had  before 
suit  parted  with  all  interest  in  the  subject-matter  to  a  citizen 
of  the  same  State  as  the  defendant,  the  proceedings  were  stayed 
until  the  complainant  answered  a  cross-bill,  charging  such  a 
transfer.8  A  cross-bill  in  a  suit  by  a  State  may  be  served  upon 
the  Attorney-General  when  he  filed  the  original  bill.9  It  has 
been  held  at  Circuit  that  a  subpoena  to  answer  a  cross-bill 
may,  by  express  leave  of  the  court,  be  served  by  substitution 
upon  the  attorney  for  the  complainant  to  the  original  bill  when 
his  client  is  beyond  the  jurisdiction  of  the  court.10  In  one  case 
the  court  said:  "The  reason  of  this  rule  would  seem  to  limit 
it  in  equity  cases  to  cross-bills,  either  wholly  or  partly  defensive 
in  their  character,  and  to  deny  its  application  to  cross-bills 


4  Christmas  Gold  Mining  Co.  v. 
Milliken,  200  Fed.  316,  and  cases 
cited.  In  Columbus  v.  Mercantile 
Tr.  Co.,  218  U.  S.  645,  663,  54  L.  ed. 
1193,  1199,  the  complainant  sued  to 
enjoin  an  act  alleged  to  be  in  vio- 
lation of  a  contract  and  defendant 
filed  a  cross-bill  seeking  a  declara- 
tion that  the  contract  had  been  for- 
feited for  nonperformance;  it  was 
held  that  a  decree  dismissing  the 
■original  bill  upon  the  merits  must 
•contain  a  clause  granting  the  prayer 
of  the  cross-bill. 

5  Allen  v.  Allen,  Hempst.  58.  A 
cross-bill  filed  before  the  complain- 
ant therein  has  filed  his  answer  to 
the  original  bill  might  be  stricken 
from  the  files  on  motion.  Ballard 
v.  Kennedy,  16  So.  327;  s.  c,  34 
Fla.  483. 

BDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1745;  White  v.  Buloid,  2  Paige  (N. 
Y.),  164;  Allen  v.  Allen,  Hempst. 
58. 


7  Morgan's  C.  &  T.  R.  S.  S.  Co. 
v.  Texas  C.  R.  Co.,  137  U.  S.  171, 
34  L.  ed.  625.  The  old  practice  un- 
der which  a  cross-bill  must  ordi- 
narily be  filed  before  publication 
has  been  abrogated.  Neal  v.  Fos- 
ter, 34  Fed.  496;  Rogers  v.  Reissner, 
31  Fed.  592;  Pullman's  P.  C.  Co.  v. 
Central  Tr.  Co.,  46  Fed.  261;  Huber 
v.  Diebold,  25  X.  J.  Eq.  170. 

8  Young  v.  Pott,  4  Wash.  521.  But 
see  Westinghouse  El.  &  N.  Co.  v. 
Mustard,  87  Fed.  336.  It  has  been 
said  that  an  objection  of  a  defect 
of  parties  must  precede  the  filing 
of  a  cross-bill.  Plum  v.  Smith  (N. 
J.  Ch.),  39  Atl.  1070. 

9  Port  Royal  &  A.  Ry.  Co.  v.  South 
Carolina,  60  Fed.  552. 

10  Lowenstein  v.  Glidewell,  5  Dill. 
325;  Kingsbury  v.  Buckner,  134  U. 
S.  650,  676,  33  L.  ed.  1047,  1057; 
Peay  v.  Schenck  &  Bliss,  Woolw. 
175 ;  Johnson  R.  R.  S.  Co.  v.  Union 


201] 


PROCEEDINGS. 


705 


setting  up  facts  not  alleged  in  the  original  bill,  and  which 
new  facts,  though  they  relate,  as  they  must,  to  the  subject-matter 
of  the  original  bill,  are  made  the  basis  for  the  affirmative  re- 
lief." u  Leave  to  make  substituted  service  was  refused  in  a 
case  where  the  plaintiffs  offered  to  stipulate  that  the  matter 
sought  to  be  pleaded  by  cross-bill  might  be  set  up  by  answer ; 12 
and  where  the  cross-bill  set  up  new  matter  not  set  out  in  the 
original  bill,  germane  to  the  case  made  by  the  original  bill, 
and  sought  to  make  such  new  matter  the  basis  of  independent 
affirmative  relief.13  Service  by  publication  of  a  subpoena  upon 
a  cross-bill  was  held  to  be  improper.14  It  has  been  held  that 
a  cross-bill  may  be  dismissed  upon  motion  before  an  answer 
or  a  hearing  when  it  sets  up  matter  improper  for  such  a  plead- 
ing, even  though  it  was  filed  by  leave  of  the  court.15  A  de- 
murrer might  however,  be  filed  to  a  cross-bill  for  want  of  equity, 
for  multifariousness,  for  presenting  matter  improper  for  a 
cross-bill,  or  for  objections  which  would  be  grounds  of  de- 
murrer to  an  original  bill.16  Where  a  cross-bill  in  equity  asked 
relief  foreign  to  the  litigation,  in  behalf  of  parties  who  had 
a  right  of  action  at  law,  it  was  held  that  it  should  be  dismissed 
"without  prejudice,"  and  not  "for  want  of  equity."17  Upon 
demurrer,  part  of  a  cross-bill  was  sustained  as  substantially  a 
plea  to  the  jurisdiction.18  The  testimony  taken  under  the 
cross-bill  may  be  read  for  or  against  the  original  bill;  and  the 
testimony  taken  under  the  original  bill  can  be  read  for  or 
against  the  cross-bill.  In  either  case  a  formal  order  granting 
leave  to  do  this,  "saving  all  just  exceptions,"  should  first  be 
obtained  ex  parte.19     Both  bills  were  usually  heard  together 


S.  &  S.  Co.,  43  Fed.  331.  But  see 
Rubber  Co.  v.  Goodyear,  9  Wall. 
807,  810,  8lT,  19  L.  ed.  587,  589, 
590;  §  165  and  citations. 

11  Caldwell,  J.,  in  Lowenstein  v. 
Glidewell,  5  Dill.  325,  328.  See 
Rubber  Co.  v.  Goodyear.  9  Wall. 
807,  810,  811,  19  L.  ed.  587,  589, 
590;  and  supra,  §  1G5. 

12  Heath  v.  Erie  Ry.  Co.,  9 
Blatcbf.  316. 

13  Fidelity  T.  &  S.  Y.  Co.  v.  Mo- 
bile St.  Ry.  Co.,  53  Fed.  850.  See 
Lowenstein   v.  Glidewell,   50  Dillon, 

Fed.  Prac.  Vol.  L— 45. 


325;  Ledbetter  v.  Mandell,  141  App. 
Div.  556,  affirmed  205  N.  Y.  537. 

14  Webster  Loom  Co.  v.  Short,  10 
Off.  Gaz.  1019. 

15  Dickerman  v.  Northern  Trust 
Co.,  80  Fed.  450. 

16  Harrison  v.  Perea,  168  U.  S. 
311,  42  L.  ed.  478;  American  &  G. 
M.  &  I.  Corp.  v.  Marquam,  62  Fed. 
960. 

"Barrett  v.  Short,  41  111.  App. 
25. 

18  Marvin  v.  Ellis,  9  Fed.  367. 
WDaniell's  Ch.  Pr.  (5th  Am.  ed.) 


TOG 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS.     [§    201 


both  in  the  first  instance20  and  upon  appeal.21  "When  a  decree 
had  been  made  dismissing  a  cross-bill  before  a. decree  upon  the 
original  bill,  it  was  held  that  an  appeal  therefrom  taken  before 
a  decree  upon  the  original  bill  must  be  dismissed.22  A  decree 
upon  the  -original  bill  would  supersede  a  previous  decree  upon 
a  cross-bill  if  the  two  were  inconsistent.23  Where  the  cross- 
bill sought  affirmative  relief,  the  voluntary  dismissal  of  the 
original  bill  would  not  dismiss  the  cross-bill.24  It  is  otherwise 
where  the  cross-bill  merely  sought  discovery.25  It  was  said 
that  a  dismissal  of  the  original  bill  by  the  court  after  a  hearing 
operated  as  a  dismissal  of  a  cross-bill  between  the  defendants, 
even  though  the  cross-bill  showed  a  good  case  for  relief;  "but 
as  a  cross-bill,  it  must  follow  the  fate  'of  the  original  bill."  26 
But  the  later  authorities  held  that  where  the  cross-bill  was  not 
purley  defensive,  but  sought  original  relief  and  contained  in 
itself  sufficient  allegations  for  an  original  bill,  it  might  not  be 
affected  bv  such  a  dismissal,27  and  that  where  there  was  no 


1552,    1553;    Lubiere    v.    Genou,    2 
Yes.  Sen.  579. 

20Ayres.v.  Carver,  17  How.  591, 
15  L.  ed.  179;  Moore  v.  Hunting- 
ton, 17  Wall.  417,  422,  21  L.  ed. 
642,  643;  Ex  parte  Eailroad  Co.,  95 
U.  S.  221,  24  L.  ed.  355;  Daniell's 
Ch.  Pr.  (2d  Am.  ed.)  1751.  See 
Blythe  v.  Hinckley.  84  Fed.  228. 

21  Ayres  v.  Carver,  17  How.  591, 
15  L.  ed.  179;  Ex  parte  Eailroad 
Co.,  95  U.  S.  221,  24  L.  ed.  355. 

22  Ayres  v.  Carver,  17  How.  591, 
15  L.  ed.  179. 

23  Ex  parte  Railroad  Co.,  95  U. 
S.  221,  225,  24  L.  ed.  355,  356; 
Blythe  v.  Hinckley,  84  Fed.  22S. 

24  Lowenstein  v.  Glidewell,  5  Dill. 
325 :  Chicago  &  A.  R.  Co.  v.  Union 
R.  M.  Co.,  109  U.  S.  702,  27  L.  ed. 
1081. 

25  Donohoe  v.  Marposa  L.  &  M. 
Co.,  1  Pac.  Coast  L.  J.  211.  219. 

26  Mr.  Justice  Field  in  Dows  v. 
Chicago.  11  Wall.  108.  112.  20  L. 
ed.  65,  67;  U.  S.  v.  California  & 
Oregon    Land    Co.,    192    U.    S.    355, 


360,  48  L.  ed.  476,  479.  See  also 
Cross  v.  De  Valle,  1  Wall.  5,  14,  17 
L.  ed.  515,  518.  But  see  Wabash, 
St.  L.  &  P.  Ry.  Co.  v.  Central  T.  Co., 
22  Fed.  138,  142;  Donohoe  v.  Mari- 
posa L.  &  M.  Co.,  1  Pac.  Coast  L. 
J.  211;  Jesup  v.  Illinois  Cent.  R. 
Co.,  43  Fed.  483,  495.  It  was  held 
that  where  the  original  bill  was  dis- 
missed ''without  prejudice,"  the 
cross-bill  must  also  be  dismissed 
"without  prejudice."  Blewitt  v. 
Blewitt  (Miss.),  12  So.  249.  Where 
one  who  filed  a  cross-bill  was  held 
to  have  no  standing  in  court  it  was 
held  that  other  parties  who  at- 
tempted to  come  in  under  the  cross- 
bill must  abide  by  the  result  de- 
clared against  him  who  filed  it. 
Stainback  v.  Junk  Bros.  L.  &  Mfg. 
Co.,  98  Tenn.  306,  39  S.  W.  530.  See 
also  Richman  v.  Donnell,  53  N.  J. 
Eq.  32. 

27  San  Diego  Flume  Co.  v.  South- 
er, 90  Fed.  164,  167:  Sunflower  Oil 
Co.  v.  Wilson,  142  U.  S.  313,  35  L. 
ed.  1025;   Holgate  v.  Eaton,  116  U. 


§  201] 


PROCEEDINGS. 


707 


jurisdiction  in  equity  of  the  matter  set  up  by  the  original  bill, 
the  filing  of  a  cross-bill  alleging  matters  of  equitable  cognizance 
grave  the  court  jurisdiction  of  the  original  bill  as  well,28  at  least 
where  the  cross-bill  might  have  been  sustained  as  an  original 
bill.29  When  an  abatement  took  place  after  a  cross-bill  had  been 
filed,  it  seems  that  there  should  have  been  a  bill  of  revivor  filed 
in  both  the  original  and  the  cross  cause.30  Where  a  cross-bill 
assumed  the  character  of  an  original  bill  it  was  dismissed  for 
jurisdiction  if  the  parties  to  the  controversy  thereby  presented 
were  citizens  of  the  same  State  and  no  Federal  question  was 
involved.31  Otherwise,  proceedings  upon  cross-bills  were  sub- 
stantially the  same  as  those  upon  original  bills.32 


S.  33,  29  L.  ed.  538;  Chicago  &  A. 
R.  Co.  v.  Union  Rolling  Mill  Co., 
109  U.  S.  702,  27  L.  ed.  1081 ;  Jack- 
son v.  Simmons,  C.  C.  A.,  98  Fed. 
768;  Coogan  v.  McCarron,  50  N.  J. 
Eq.  611,  25  Atl.  330;  Kirby  v.  Am. 
Soda  Fountain  Co.,  194  U.  S.  141, 
48  L.  ed.  911;  Blythe  v.  Hinckley, 
84  Fed.  228,  236,  237 ;  Badger  Gold 
Min.  &  Mill  Co.  v.  Stockton  G«ld 
&  Copper  Min.  Co.,  139  Fed.  838. 
But  see  U.  S.  v.  California  &  Ore- 
gon Land  Co.,  192  U.  S.  355,  360, 
48  L.  ed.  476,  479. 

28  Sanders  v.  Riverside,  C.  C.  A., 
118  Fed.  720. 


29  Kirby  v.  Am.  Soda  Fountain 
Co.,  194  U.  S.  141,  145,  48  L.  ed. 
911,  912. 

30  Story's  Eq.  PL,  §  363. 
3iPatton   v.    Marshall,    173    Fed. 

350. 

32  See,  however,  Lautz  v.  Gordon, 
28  Fed.  264 ;  Puetz  v.  Bransford,  31 
Fed.  458.  For  a  case  where  an  an- 
swer to  a  cross-bill  was  held  respon- 
sive, see  Prentiss  Tool  &  Supply  Co. 
v.  Godchaux,  66  Fed.  234.  See  on 
the  general  subject  Noel  v.  King,  2 
Madd.  392;  Hannah  v.  Hodgson,  30 
Beav.  12;  Gray  v.  Haig,  13  Beav. 
65. 


CHAPTER  XI. 


REPLIES. 

§  202.  Definition  and  history  of  replies.  A  reply  is  a 
pleading  by  which  the  plaintiff  puts  in  issue  the  matters  pleaded 
in  a  defendant's  answer.  They  were  formerly  called  replica- 
tions.1 Replications  were  formerly  of  two  kinds,  general  and 
special.2  A  general  replication  consists  of  a  general  denial  of 
the  truth  of  the  defendant's  plea  or  answer,  and  of  the  suffi- 
ciency of  the  matter  alleged  therein  to  bar  the  plaintiff's  suit, 
together  with  an  assertion  of  the  truth  and  sufficiency  of  the 
bill.3  A  special  replication  sets  up  new  matter  in  avoidance  of 
a  substantive  defense  contained  in  the  answer  or  plea.4  To  this 
the  defendant  was  obliged  to  file  a  rejoinder,  giving  the  discov- 
ery required  in  it.5  This  might  then  be  succeeded  by  a  surre- 
joinder and  a  rebutter.6  Special  replications  and  their  conse- 
quences were,  on  account  of  the  inconvenience  therefrom  re- 
sulting, almost  obsolete  by  the  time  of  Lord  Eldon.7  A  special 
replication  to  the  answer  was  forbidden  by  the  Equity  Rules  of 
1842,  which  provided  that  "no  special  replication  to  any  answer 
shall  be  filed.  But  if  any  matter  alleged  in  the  answer  shall 
make  it  necessary  for  the  plaintiff  to  amend  his  bill,  he  may 
have  leave  to  amend  the  same  with  or  without  the  payment  of 
costs,  as  the  court  or  a  judge  thereof  may  in  his  discretion 
direct."  8  The  body  of  a  general  replication  was  substantially 
in  the  following  form :  "This  repliant,  saving  and  reserving  to 
himself  all  and  all  manner  of  advantage  of  exception,  which 

§  202.     1  Mason  v.  Hartford,  P.  &  7  Mitford's  PL,  ch.  3 ;  Story's  Eq. 

F.  R  Co.,  10  Fed.  334.  PL,  §  S78. 

2  Mitford's  PL.  ch.  3.  8  Rule  45  of  1842.     See  Mason  v. 

3  Story's  Eq.  PL,  §  878.  Hartford,  P.   &   F.   E.   Co.,   10   Fed. 

4  Story's  Eq.  PL,  §  878.  334;   Vattier  v.   Hinde,  7   Pet.  252, 

5  Mitford's  PL.  ch.  3;  Story's  Eq.  273,  8  L.  ed.  675,  683;  Duponti  v. 
PL,  §  878.  Mnssy,  4  Wash.  128;  Wren  v.  Spen- 

6 Mitford's  PL,  ch.  3;  Story's  Eq.       cer  0.  Mfg.  Co.,  18  Off.  Gaz.  857. 
PL,  §  S78. 

708 


§    203]  WHEN    PKOPER.  700 

may  be  had  and  taken  to  the  manifold  errors,  uncertainties,  and 
insufficiencies  of  the  answer  of  the  said  defendants,  for  repli- 
cation thereunto,  saith,  that  he  doth  and  will  aver,  maintain,  and 
prove  his  said  bill  to  be  true,  certain,  and  sufficient  in  the  law 
to  be  answered  unto  by  the  said  defendants,  and  that  the  answer 
of  the  said  defendants  is  very  uncertain,  evasive,  and  insufficient 
in  law,  to  be  replied  unto  by  his  repliant;  without  that,  that 
any  other  matter  or  thing  in  the  said  answer  contained,  material 
as  effectual  in  the  law  to  be  replied  unto,  confessed  or  avoided, 
traversed  or  denied,  is  true ;  all  which  matters  and  things  this 
repliant  is  ready  to  aver,  maintain,  and  prove  as  this  honorable 
court  shall  direct,  and  humbly  prays  as  in  and  by  his  said  bill 
he  hath  already  prayed."9  The  signature  of  counsel  was  un- 
necessary.10 Replications  have  now  been  abolished ;  and  the  new 
Equity  Rules,  following  the  Xew  York  Code  of  Procedure  and 
the  English  orders  in  chancery,  now  provide  as  follows. 

§  203.  When  a  reply  should  be  filed.  "Unless  the  answer 
assert  a  set-off  or  counter-claim,  no  reply  shall  be  required  with- 
out special  order  of  the  court  or .  judge,  but  the  cause  shall 
be  deemed  at  issue  upon  the  filing  of  the  answer,  and  any  new 
or  effectual  in  the  law  to  be  replied  unto,  confessed  or  avoided, 
plaintiff.  If  the  answer  include  a  setoff  or  counter-claim,  the 
party  against  whom  it  is  asserted  shall  reply  within  ten  days 
after  the  filing  of  the  answer,  unless  a  longer  time  be  allowed 
by  the  court  or  judge.  If  the  counter-claim  is  one  which  affects 
the  rights  of  other  defendants  they  or  their  solicitors  shall  be 
served  with  a  copy  of  the  same  within  ten  days  from  the  filing 
thereof,  and  ten  days  shall  be  accorded  to  such  defendants  for 
filing  a  reply.  In  default  of  a  reply,  a  decree  pro  confesso  on 
the  counter-claim  may  be  entered  as  in  default  of  an  answer  to 
the  bill."  x  Where  there  are  several  defendants  a  replication 
should  be  filed  within  the  prescribed  time  after  one  of  them 
has  filed  an  answer  with  a  counter-claim,  although  the  others 
may  not  have  done  so,2  and  a  separate  replication  after  the 
other  answers  have  come  in  if  they  set  up  counter-claims.  It 
has  been  held  that  the  pendency  of  a  motion  affecting  the  an- 
swer will  excuse  the  plaintiff  from  replying  until  the  motion  lias 

9  Story's  Eq.  PL,  §  878,  note  4.  §  203.     1  See  Smith's  Ch.  Pr.   (2d 

10  Story's    Eq.    PI.,    §    881;    Dan-       EHg.  ed.) .  vol.  i.  p.  33G. 

iell's  Ch.  Pr.   (4th  Am.  ed.)   830.  2  All  is  v.  Stowell,  5  Fed.  203. 


10 


REPLIES. 


[§    203 


been  decided.3  The  court  exercises  great  liberality  in  allowing 
a  reply  filed  too  late  to  stand.4  The  taking  of  testimony  by  the 
defendant,  or  any  other  proceeding  taken  by  him  in  the  cause,, 
might  be  held  a  waiver  of  his  right  to  have  a  counter-claim  taken 
as  confessed  for  want  of  a  reply.5  An  objection  upon  this  ground 
cannot  be  raised  for  the  first  time  upon  appeal.6  Formerly  after 
a  cause  had  been  heard  upon  bill  and  answer,  the  court  would 
rarely  allow  a  replication  to  be  filed ; 7  but  it  was  said :  that  per- 
mission to  file  the  replication  should  be  granted  when  the  suit 
was  set  down  for  such  hearing  in  good  faith,  for  the  purpose  of 
testing  the  sufficiency  of  a  defense  in  the  answer.8  When  a 
complainant  is  in  default  for  not  filing  a  replication  in  due 
time,  it  is  improper  to  grant  him  any  relief  not  justified  by  ad- 
missions in  the  answer.9  The  court  may  grant  leave  to  with- 
draw a  reply,  and  amend,  or  have  the  cause  set  down  for  a  hear- 
ing upon  bill  and  answer.10  Where  a  defense  pleaded  in  an 
answer  is,  upon  its  face,  conclusive  and  raises  but  a  single  point, 
a  reply  should  usually  be  ordered.  In  New  York,  replies  have 
been  ordered  to  defenses  setting  up  the  statute  of  limitations,11 
but   not    a   foreign   statute    of   limitations ; 12   the    statute    of 


3Peirce  v.  West's  Ex'rs,  Pet.  C. 
C.  351;  Sayles  v.  Erie  Ry.  Co.,  2 
N.  J.  L.  J.  212;  Fischer  v.  Hayes. 
6  Fed.  76;  s.  c,  19  Blatchf.  26; 
Jones  v.  Brittan,  1  Woods,  667 ; 
Potts  v.  Alexander,  118  Fed.  885, 
886;  approving  text,  U.  S.  v.  Bar- 
ber Lumber  Co.,  169  Fed.  184. 

4  Fischer  v.  Hayes,  6  Fed.  76; 
s.  c,  19  Blatchf.  26. 

5  Jones  v.  Brittan,  1  Woods,  667; 
Fischer  v.  Hayes,  6  Fed.  76;  s.  c, 
19  Blatchf.  26;  Reynolds  v.  Craw- 
fordsville  First  Nat.  Bank,  112  U. 
S.  405,  28  L.  ed.  733. 

6  Clements  v.  Moore,  6  Wall.  299, 
18  L.  ed.  786;  Fretz  v.  Stover,  22 
Wall.  198,  22  L.  ed.  769. 

7  Bullinger  v.  Mackey,  14  Blatchf. 
355;  Peirce  v.  West's  Ex'rs,  Pet.  C. 
C.  351. 


8  Besson  &  Co.  v.  Goodman,  147 
Fed.  887. 

9  Harrington  v.  Union  Oil  Co., 
144  Fed.  236. 

10  Rogers  v.  Goore,  17  Ves.  130; 
Brown  v.  Ricketts,  2  J.  Ch.  (N.  Y.) 
425;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
479;  Ibid.   (3d  Am.  ed.)   830.      , 

"Hubbell  v.  Fowler,  1  Abb.  N. 
S.  1. 

I2  01sen  v.  Singer  Mfg.  Co.,  138 
App.  Div.  467;  122  N.  Y.  Supp. 
822;  Cavanagh  v.  Oceanic  S.  S.  Co., 
30  St.  Rep.  532;  9  N.  Y.  Supp.  198. 
But  see  Perls  v.  Metropolitan  Life 
Ins.  Co.,  15  Daly,  517;  29  St.  Rep. 
409,  8  N.  Y.  Supp.  532;  New  York, 
L.  E.  &  W.  R.  R.  Co.  v.  Robinson, 
25  Abb.  N.  C.  116  5  12  N.  Y.  Supp. 
208. 


§  203] 


WHEN     PEOPEE. 


711 


frauds ; 13  a  discharge  in  bankruptcy ; 14  marriage ; 15  divorce ; 16 
special  partnership;17  ratification;18  settlement  of  previous 
litigation;19  a  judgment  in  another  suit;20  a  previous  assign- 
ment of  the  claim  in  suit;21  non-payment  of  insurance  pre- 
miums and  false  statements  in  an  application  for  a  policy;21 
foreclosure.23 

In  New  York,  a  reply  will  not  be  directed  to  the  matter  al- 
leged in  an  answer  which  does  not  constitute  a  defense,24  nor  to 
defenses  which  have  been  negatived  in  the  plaintiff's  pleading,25 
nor  where  the  matter  had  been  thrashed  out  upon  a  previous  ap- 
plication for  a  receiver,26  nor  to  evidentiary  facts  in  an  answer,27 
nor  to  a  defense  which  is  supported  by  lengthy  statements  of 
facts  or  documents ; 28  nor  where  the  complaint  alleged  com- 
pliance by  plaintiff  with  all  the  conditions  of  the  contract  upon 


13  Guinzburg  v.  Joseph,  141  App. 
Div.  472;  126  N.  Y.  Supp.  324. 

M-Poillon  v.  Lawrence,  43  N.  Y. 
Superior  Ct.  385.  See  Poillon  v. 
Lawrence,  77  N.  Y.  207. 

15  Link  v.  Sprague,  cited  by  coun- 
sel in  Brinkerboff  v.  Brinkerhoff,  8 
Abb.  N.  C.  207. 

16  Brinkerboff  v.  Brinkerboff,  8 
Abb.  N.  C.  207. 

17  Williams  v.  Kilpatrick,  21  Abb. 
N.  C.  61;  Hartford  Nat.  Bank  v. 
Beinecke,  15  App.  Div.  474;  44  N. 
Y.  Supp.  486;  26  N.  Y.  Civ.  Pro. 
E.  226. 

18  Steinway  v.  Steinway,  26  N.  Y. 
Supp.  657;  52  St.  Rep.  660;  Rich- 
ards v.  Greason,  128  App.  Div.  320, 
112  N.  Y.  Supp.  675. 

19  Seaton  v.  Garrison,  116  App. 
Div.  301.  See  Twain  fey  v.  McKen- 
nell,  137  App.  Div.  574,  122  N.  Y. 
Supp.  237. 

20Timble  v.  Russell,  41  Misc. 
577;  85  N.  Y.  Supp.  109.  Held 
otherwise  when  the  judgment  was 
in  another  State,  Columbus,  H.  V. 
&  T.  R.  R.  Co.  v.  Ellis.  25  Abb.  X. 
C.  150;  11  N.  Y.  Supp.  768,  19  Civ. 
Pro.  R.  66. 


21  Toplitz  v.  Levering,  71  App. 
Div.  37;   75  N.  Y.  Supp.  678. 

22Schwan  v.  Mutual  Trust  F.  L. 
Ass'n.,  9  Civ.  Pro.  R.  82. 

23Timble  v.  Russell,  41  Misc.  (X. 
Y.)   577,  85  X.  Y.  Supp.  109. 

24\Toisin  v.  Mitchell,  96  X.  Y. 
Supp.  386;  N.  Y.,  L.  E.  &  W.  R.  R. 
Co.  v.  Robinson,  25  Abb.  N.  C.  (X. 
Y.j  116,  12  N.  Y.  Supp.  208;  Co- 
lumbus, H.  V.  &  T.  R.  R.  Co.  y. 
Ellis,  25  Abb.  N.  C.  (X.  Y.)  150, 
11  N.  Y.  Supp.  768;  Johnson  v. 
Andrews,  34  Misc.  (X.  Y.)  89.  68 
X.  Y.  Supp.  764;  City  Equity  Co. 
v.  Bodine,  141  App.  Div.  (X.  Y.) 
907,  126  N.  Y.  Supp.  439. 

25  Avery  v.  N.  Y.  C.  &  H.  R.  R.  R. 
Co.,  6  N.  Y.  Supp.  547,  24  St.  Rep. 
918  affirmed  117  N.  Y.  660;  Shaff 
v.  United  Surety  Co.,  142  App.  Div. 
465,  127  X.  Y.  Supp.  8. 

26  Ilallenborc  v.  Greene,  87  App. 
Div.  259:   84  N.  Y.  Supp.  319. 

27  Steinway  v.  Steinway.  26  X.  Y. 
Supp.  657;  52  St.  Rep.  660. 

28  Zeiner  v.  Mutual  Reserve  Fund 
Life  Ass'n..  51  App.  Div.  607.  64 
X.  Y.  Supp.  63:  Columbus.  IT.  Y.  & 
T.  R.  R.  Co.  v.  Ellis.  25  Abb'.  X.  C. 


712  REPLIES.  [§    204: 

which  he  sued,  and  the  answer  interposed  a  general  denial  and 
specified  conditions  which  it  alleged  plaintiff  had  not  per- 
formed.29 It  was  held  that  the  right  to  compel  a  reply  was 
waived  by  a  delay  until  the  action  was  referred  and  noticed  for 
hearing,30  but  not  by  service  of  a  cross-notice  of  trial.31 

The  Equity  Rules  are  silent  as  to  whether,  wThen  the  plain- 
tiff wishes  to  meet  a  defense  bv  confession  and  avoidance,  he 
can  be  permittted  to  reply  against  the  opposition  of  the  de- 
fendant. In  England,  the  rules  expressly  give  the  plaintiff  the 
right  to  reply  to  any  defense  in  an  answer  by  leave  of  the  Cir- 
cuit Court.32  Under  the  New  York  Code  of  Civil  Procedure, 
a  defense  in  an  answer  may  be  met  by  confession  and  avoidance 
without  any  reply.33 

§  204.  Effect  of  reply.'  According  to  the  former  practice, 
the  complainant  by  filing  a  general  replication  admitted  the 
sufficiency  as  regards  discovery,1  and  as  regards  the  form  of 
pleading,2  but  not  the  sufficiency  as  a  defense,3  of  the  plea  or 
answer  to  which  it  was  filed,  and  denied  every  allegation  in  the 
plea  or  answer  which  was  not  directly  responsive  to  the  bill.4 

§  205.  Frame  of  a  reply.  The  full  title  of  the  cause,  as  it 
stands  at  the  time  the  reply  is  filed,  must  be  set  forth  in  its 
heading  of  the  reply,  but  only  the  names  of  such  of  the  de- 
fendants as  have  appeared  should  be  inserted  or  inferred  to  in  its 
bodoy.  If  a  defendant's  name  has  been  misspelled  by  the  plain- 
tiff, and  such  defendant  has  corrected  the  same  by  his  answer, 

150;    11  N.  Y.  Supp.  768;    19  Civ.  2  McKim    v.    White    Hall    Co.,    2 

Proc.  R.  66.  Md.  Ch.  510. 

29  Burr  v.  Union  Surety  &  Guar-  3  Equity  Rule  33 ;  Everts  v.  Ag- 
anty  Co.,  86  App.  Div.  (X.  Y.)  545,  nes>  4  Wis-  3435  Rule  33;  Matthews 
83  X.  Y.  Supp.  756.  v-   balance  &  G.  Mfg.   Co.,  2   Fed. 

30  Sterling  v.  Mut.  Life  Ins.  Co.,  232'  But  see  M5rers  v-  Dorr>  13 
6  State  Rep.   (X.  Y.)   96.  Blatclif.    22;    Theberath    v.    Rubber 

31  Cavanagh  v.  Oceanic  S.  S.  Co.,      *  C'  H-  T'  Co~"  5  Bann'  &  A"  6M- 
30  State  Rep.   (X.  Y.)   532,  9  X.  Y.  4  Humes  v.  Scruggs,  94  U.  S.  22, 
^           -.qo                                                       24  L.  ed.  51.     It  was  held  that  the 

wr»   i     '  vTTT       a  n         -lo-io        general  replication  put  in  issue  the 

32  Order    XIII.     Ann.    Cas.    1913,  ,.„.->        *         ,     ,       , 

validity   of    a    deed    set   up    in    the 

answer  although  not  questioned  by 

33  Met.  L.  I.  Co.  v.  Meeker,  85  X.       „      .  •„      y,     ?        „      ,  •        ,  ^ 

the  bill.     Boyd  v.  Hawkins,  2  Dev. 

Y'   614'  (X.  C.)  Eq.  195.    But  see  McClane's 

§  204.     l  Story's  Eq.   PL,   §   877;  Adm'x  v.  Shepherd's  Ex'x,  21  X.  J. 

Hughes   v.   Blake,   6   Wheat.   453.   5  Eq.    76;    Cowart  v.   Perrine,   21   X. 

L.  ed.  303.  J.  Eq.  101. 


§  205]  FKAME  OF  KEPLY.  713 

but  the  plaintiff  has  not  afterwards  amended  his  bill  with  re- 
spect to  such  name,  the  correction  should  be  shown  in  the  title 
of  the  reply.  In  the  body  of  the  reply,  however,  the  correct 
name  only  should  be  inserted.  When  any  defendant  has  died 
since  the  bill  was  filed,  the  words  "since  deceased"  should  fol- 
low his  name  in  the  title,  but  his  name  should  be  omitted  in  the 
body  of  the  replication.  If  the  plaintiff  joins  issue  with  all  the 
defendants  their  names  need  not  be  repeated  in  the  body ;  it  is 
sufficient  in  such  case  to  designate  them  as  "all  the  defendants ;" 
but  if  he  does  not  join  issue  with  all,  the  names  of  tin  defend- 
ants must  be  set  out  in  the  body.1  A  reply  should  be  signed  in- 
dividually by  one  or  more  of  the  solicitors  for  the  complainant.2 
Unless  the  complainant  appears  in  person  in  the  case,  it  would 
probably  be  sufficient  for  the  defendant  to  sign  the  same  individ- 
ually.3 It  is  the  safer  practice  to  have  his  individual  signature 
acknowledged.  It  has  been  held,  in  England,  that  a  reply  must 
not  set  up  new  claims.4 

§  205.     i  Darnell's    Ch.    Pr.    (4th  3  TJ.  S.  R.  S.,  §  747. 

Am.  ed.)    830,  831.  4  Williamson  v.  L.  &  W.  Ry.  Co., 

2  Eq.  Rule  24.  12  Ch.  D.  787. 


CHAPTER  XL 

AMENDMENTS  OF  WE.ITS,  PROCESS  AND  PLEADINGS,  AT  LAW  AND 

IN  EQUITY. 

§  206.  Amendments.  In  general.  "In  reference  to 
amendments  of  equity  pleadings  the  courts  have  found  it  im- 
practicable to  lay  down  a  rule  that  would  govern  all  cases. 
Their  allowance  must,  .at  every  stage  of  the  cause,  rest  in  the 
discretion  of  the  court ;  and  that  discretion  must  depend  largely 
on  the  special  circumstances  of  each  case.  It  may  be  said, 
generally,  that  in  passing  upon  applications  to  amend,  the  ends 
of  justice  should  never  be  sacrificed  to  technical  rules  of  prac- 
tice. Undoubtedly  great  caution  should  be  exercised  where 
the  application  comes  after  the  litigation  has  continued  for 
some  time,  or  when  the  granting  of  it  would  cause  serious 
inconvenience  or  expense  to  the  opposite  side."1  The  Revised 
Statutes  provide :  "No  summons,  writ,  declaration,  return 
process,  judgment,  or  other  proceedings  in  civil  causes,  in  any 
court  of  the  United  States,  shall  be  abated,  arrested,  quashed, 
or  reversed  for  any  defect  or  want  of  form ;  but  such  court 
shall  proceed  and  give  judgment  according  as  the  right  of  the 
cause  and  matter  in  law  shall  appear  to  it,  without  regarding 
any  such  defect,  or  want  of  form,  except  those  which,  in  cases 
of  demurrer,  the  party  demurring  specially  sets  down,  together 
with  his  demurrer  as  the  cause  thereof;  and  such  court 
shall  amend  every  such  defect  and  want  of  form  other  than 
those  which  the  party  demurring  so  expresses ;  and  may  at 
any  time  permit  either  of  the  parties  to  amend  any  defect 
in  the  process  or  pleading,  upon  such  conditions  as  it 
shall,     in     its    discretion,     and     by    its     rules,     prescribe." 2 

§  206.     1  Harlan,  J.,  in  Hardin  v.  v.   Turner,    12    How.    30,   46,    13   L. 

Boyd,  113  U.  S.  756,  761,  28  L.  ed.  ed.  883,  887;   Roach  v.  Hulings,  16 

1141,   1142.     See  Nellis  v.  Pennock  Pet.   319,   10   L.  ed.  979;    Tilton   v. 

Mfg.  Co.,  38  Fed.  379.  Cofield,  93  U.  S.  163,  167,  23  L.  ed. 

2  V.   S.  R.  S.,   §   954.     See  Park3  858,  859 ;  Jacob  v.  U.  S.,  Brock.  520, 

714 


§  207] 


WRITS    AND    PROCESS. 


715 


States,3  charities4  infants,5  idiots,  and  lunatics,  are  allowed  to 
amend  in  cases  where  courts  might  hesitate  to  grant  the  privi- 
lege to  others.  Amendments  are  rarely  allowed  to  the  plaintiffs 
in  penal  actions  and  actions  to  enforce  forfeitures.6 

§  207.  Amendments  of  writs  and  process.  A  writ  may 
be  amended  by  adding  thereto :  a  date  j1  or,  in  a  removal  case, 
where  the  State  statute  so  permits,  a  seal ; 2  or,  if  it  is  under 
seal,  by  adding  the  proper  teste3  or  signature4  to  the  same; 
or  the  return  day,  when  served  after  the  original  return  clay 
had  passed ; 5  or  by  directing  it  to  a  defendant  in  his  official 
instead  of  his  individual  capacity ; 6  or  when  endorsed  by  an 
attorney  not  admitted  to  practice  in  the  Federal  court,  but 
qualified  for  such  admission,  by  substituting  another  attor- 
ney,7 or  by  admitting  the  original  attorney  to  practice  as  of 
a  date  prior  to  the  issue  of  the  writ ; 8  but  that  when  issued  in 
the  Federal  court  without  a  seal  or  signature,  the  defect  can- 
not be  cured  by  amendment.9  Petitions  and  bonds  on  removal 
are  process  within  the  statute  and  may  be  amended  in  a  proper 
case.10  It  has  been  held  that  an  omission  in  the  papers  upon 
which  an  attachment  has  been  granted  may  be  supplied  by 
amendment  in  a  case  where  the  State  practice  does  not  permit 
such  a  cure.11 


525;  Eosenbach  v.  Dreyfuss,  1  Fed. 
391 ;  U.  S.  v.  Batchelder,  9  Int.  Eev. 
Eec.  98;  Warren  v.  Moody,  9  Fed. 
673;  Thomas  v.  U.  S.,  15  Ct.  CI. 
242;  Eussell  v.  U.  S.,  15  Ct.  CI. 
168;  Gulf,  C.  &  S.  F.  By.  Co.  v. 
James,  48  Fed.  148,  150;  Am.  Alkali 
Co.  v.  Campbell,  113  Fed.  398: 
Great  Northern  Ey.  Co.  v.  Herron, 
C.  C.  A.,  136  Fed."  49;  U.  S.  E.  S., 
§§  636,  948,  914,  5595,  5596. 

3  Ehode  Island  v.  Massachusetts, 
13  Pet.  23,  10  L.  ed.  41. 

*  President  of  St.  Mary  M.  Col- 
lege v.  Sibthorp,  1   Euss.  154. 

5Serle  v.  St.  Floy,  2  P.  Wins. 
3S6;  Pritchard  v.  Quinchant,  Amb. 
147;   Story's  Eq.  PL.  §§  59,  892. 

«U.  S.  v.  Batchelder,  9  Int.  Eev. 
Eec.  98,  Fed.  Cas.  No.   14.451. 

§  207.     1  Gilbert    v.    South    Caro- 


lina I.  &  W.  I.  Exposition  Co.,  113 
Fed.  523.    . 

2  Wolf  v.  Cook,  40  Fed.  432. 

3  U.  S.  v.  Turner.  50  Fed.  734. 

4  Bryan  v.  Ker,  222  U.  S.  107,  56 
L.  ed.  114. 

SSpeare   v.   Stone,   C.   C.   A.,    193 
Fed.  375. 


v.    Herold,    184    Fed. 

Garrett,  47  Fed.  625. 

Merritt,  4  Fed.   614; 


6  Hastings 
759. 
1  Jeweti  v. 

8  Ibid. 

9  Dwight  v 
Feaslee  v.  Haberstro,  15  Blatchf. 
472.  Contra,  Chamberlain  v.  Men- 
sing,  47  Fed.  435. 

10  Kinney  v.  Columbia  Saw  &  L. 
Ass'n,  191  U.  S.  78,  48  L.  ed.  103. 
See  infra,  §§  546,  547. 

H  Bowden    v.    Burnliam,    59    Fed. 


716 


AMENDMENTS. 


[§  20! 


§  208.  Amendment  of  pleadings  at  common  law.     It 

has  been  held  that  the  time  and  manner  of  the  amendment 
of  pleadings  at  common  law  is  determined  by  the  practice  of 
the  State  where  the  court  is  held ; *  but,  in  matters  of  form,  they 
may  be  amended  in  cases  where  the  State  statute  gives  no 
such  permission.2  The  court  has  power  upon  the  trial  to  in- 
crease the  amount  of  damages  demanded  in  the  complaint.3 
Where  the  State  practice  is  silent,  amendments  at  common  law 
will  usually  be  allowed  in  cases  in  which  they  would  be  allowed 
in  equity,  and  they  have  the  same  effect. 

§  209.  When  bills  in  equity  can  be  amended.  The 
equity  rules  regulate  the  amendments  of  bills  as  follows :  "The 
plaintiff  may,  as  of  course,  amend  his  bill  before  the  defend- 
ant has  responded  thereto,  but  if  such  amendment  be  filed  after 
any  copy  has  issued  from  the  clerk's  office,  the  plaintiff  at  his 
own  cost  shall  furnish  to  the  solicitor  of  record  of  each  oppos- 
ing party  a  copy  of  the  bill  as  amended,  unless  otherwise 
ordered  by  the  court  or  judge.1  After  pleading  filed  by  any 
defendant,  plaintiff  may  amend  only  by  consent  of  the  de- 
fendant or  leave  of  the  court  or  judge."  "The  answer  may 
be  amended,  by  leave  of  the  court  or  judge,  upon  reasonable 
notice,  so  as  to  put  any  averment  in  issue,  when  justice  re- 
quires it." 2  "The  court  may  at  any  time,  in  furtherance 
of  justice,  upon  such  terms  as  may  be  just,  permit  any  process, 
proceeding,  pleading  or  record  to  be  amended,  or  material 
supplemental  matter  to  be  set  forth  in  an  amended  or  supple- 
mental pleading.  The  court,  at  every  stage  of  the  proceeding, 
must  disregard  any  error  or  defect  in  the  proceeding  which 
does  not  affect  the  substantial  rights  of  the  parties."  3     Under 


752,  754;  Erstein  v.  Rothschild,  22 
Fed.  61,  64;  Booth  v.  Denike,  65 
Fed.  43 ;  infra,  Section  on  Attach- 
ment. 

§  208.  1  Rosenbach  v.  Dreyfuss, 
1  Fed.  391.  See  U.  S.  R.  S.,  §  914. 
Contra  as  to  amendments  upon  the 
trial,  Manitowoc  Malting  Co.  v. 
Fuechtwanger,  169  Fed.  983.  See 
U.  S.  R.  S.,  §  954;  Erstein  v. 
Rothschild.  22  Fed.  61. 

2U.  S.   R.  S.,   §   954;   Manitowoc 


Malting  Co.  v.  Fuechtwanger,  169 
Fed.  983. 

3  Manitowoc  Malting  Co.  v. 
Fuechtwanger,   169  Fed.  983. 

§  209.  lEq.  Rule  28.  See  Gub- 
bins  v.  Laughtenschlager,  75  Fed. 
6f5;  Beavers  v.  C.  A.  Richardson  & 
Co.,  118  Fed.  320;  National  Bank 
v.  Carpenter,  101  U.  S.  567,  568, 
25  L.  ed.  815,  816. 

2  Eq.  Rule  30. 

3Eq.  Rule  19. 


209] 


WHEN    PROPER. 


717 


the  former  practice,  where  objections  to  the  jurisdiction  had 
been  sustained  without  any  general  appearance,  or  any  plead- 
ing by  the  defendant,  the  bill  might  always  be  amended.4 
For  the  purposes  of  the  rule  as  to  amendments,  an  answer 
which  has  been  held  or  admitted  to  be  insufficient,  was,  con- 
sidered as  no  answer.5  In  !STew  York,  it  was  held  that,  after 
an  insufficient  answer,  the  complainant  could  not  amend  by 
leaving  out  the  defendant's  name,  thus  discontinuing  the  suit 
without  costs.6  An  amendment  of  a  bill  without  payment  of 
costs  or  service  of  a  copy  on  the  defendant  might  be  with- 
drawn and  did  not  then  extend  the  defendant's  time  to  plead.7 
Under  the  old  chancery  practice,  it  was  not  usual  to  give  leave 
to  amend  when  a  general  demurrer  was  sustained,  but  in  the 
discretion  of  the  court  that  might  be  done.8  Under  the  rules 
of  1842,  if  upon  a  hearing  any  demurrer  or  plea  was  allowed, 
the  court  might,  in  its  discretion,  upon  motion  of  the  plain- 
tiff, allow  him  to  amend  his  bill  upon  such  terms  as  it  deemed 
reasonable.9  If  the  defect  in  the  bill  was  clearly  one  that  went 
to  the  whole  equity  of  the  plaintiff's  case,  leave  to  amend 
would  not  be  granted.10  Leave  to  amend  might  also  be  refused 
when  the  case  of  the  defendant  was  a  hard  one  and  he  was 
free  from  wrongdoing  while  the  plaintiff  had  had  an  oppor- 
tunity to  plead  the  new  matter  when  his  bill  was  first  drawn.11 
When  a  demurrer  had  been  sustained,  an  amendment  which 
did  not  cure  the  defect  wrould  not  be  allowed.12  After  a  case 
has  been  set  down  for  a  hearing  upon  the  facts,  and  especially 
after  such  a  hearing,  an  amendment  which  substantially  changes 
the  case  made  by  the  bill  will  rarely  be  granted,13  but  the 


4  Insurance  Co.  of  N.  A.  v.  Svend- 
sen,  74  Fed.  346. 

5Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
473.  See  Chase  v.  Dunham,  1  Paige 
(N.  Y.),  572. 

6  Chase  v.  Dunham,  1  Paige  (N. 
Y.),  5.72. 

7  Sheffield  F.  Co.  v.  Witherow,  149 
U.  S.  574,  57G,  37  L.  ed.  853,  855. 

«Wellesley  v.  Wellesley,  4  Myl. 
&  Cr.  554,  558. 

9Fq.  Rule  35,  of  1842. 

lOLangdell's  Eq.  PI.,  §  96:  Tyler 
v.  Bell,  2  Myl.   &  Cr.   89;    Lowe   v. 


Farlie,  2  Madd.'  101;  Walker  v. 
Powers,  104  U.  S.  245,  26  L.  ed. 
729 ;  McKemy  v.  Supreme  Lodge  A. 
0.  U.  W.,  C.  C.  A.,  180  Fed.  961. 

11  Dowell  v.  Applegate,  8  Fed. 
698;   s.  c,  7  Saw.  232. 

12  McKemy  v.  Supreme  Lodge  A. 
O.  U.  W.,  C.  C.  A.,  180  Fed.  961, 
965. 

13  The  Tremolo  Patent,  23  Wall. 
518,  527,  23  L.  ed.  97,  98;  Gubbins 
v.  Laughtenschlager,  75  Fed.  615; 
Bass,  R.  &  G.  v.  Feigenspau,  82  Fed. 
260;    Old   Dominion   Copper  Mining 


'18 


AMENDMENTS. 


[§  210 


courts  usually  grant  applications  for  leave  to  amend  so  as  to 
correct  clerical  errors14  and  to -make  the  pleading's  conform 
to  evidence  that  has  heen  taken  without  objection,15  and  they 
often  permit  the  necessary  jurisdiction  averments  then  to  be 
added.16  An  amendment  may  be  allowed  by  the  court  at  any 
time;  even  after  a  final  decree17  or  a  judgment  at  law  aud 
after  a  decision  upon  an  appeal.18  In  the  latter  case  ordinarily 
leave  from  the  appellate  court  to  apply  for  the  amendment  must 
be  obtained;  but  where  a  decree  upon  the  pleading  has  been 
reversed  and  the  cause  remanded  for  further  proceedings,  the 
complainant  may  be  allowed  by  the  court  of  first  instance  to 
amend  his  bill  without  express  leave  of  the  court  of  review.19 
The  power  of  the  court  of  first  instance  to  allow  an  amend- 
ment pending  an  appeal,20  or  writ  of  error,21  is  extremely 
doubtful. 

§  210.  Form  and  effect  of  amendment  of  a  bill. 
"Wherever  leave  to  amend  the  bill  is  granted,  it  is  more  proper 
to  file  an  amended  bill  than  to  interline  the  original  bill,  par- 


&.  Smelting  Co.  v.  Lewisohn.  176 
Fed.  745;  Atchison,  T.  &  S.  F.  Ry. 
Co.  v.  Gilliland,  C.  C.  A.,  193  Fed. 
608;  Healey  Ice  Machine  Co.  v. 
Green,  184  Fed.  515. 

14  Mellwood  Distilling  Co.  y.  Har- 
per, 1G7  Fed.  389,  an  error  in  the 
name  of  the  complainant. 

15  Old  Dominion  Copper  Mining 
&  Smelting  Co.  v.  Lewisohn,  176 
Fed.  745;  Pa.  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  190  Fed.  602;  Con- 
fectioners' Mach.  &  Mfg.  Co.  v. 
Eacine  Eng.  &  Mach.  Co.,  163  Fed. 
914;  Lusk  v.  Bush,  C.  C.  A.,  199 
Fed.  369;  Flint  &  P.  M.  R.  Co.  v. 
McPherson,  C.  C.  A.,  105  Fed.  210, 
44  C.  C.  A.,  449;  Freund  v.  S.  H. 
Greene  &  Sons  Corporation,  139 
Fed.  703. 

16  Baglin  v.  Title  Guaranty  & 
Surety  Co.,  166  Fed.  356:  MeEldow- 
ney  v.  Card,  393  Fed.  475;  Atchi- 
son, T.  &  S.  F.  Ry.  Co.  v.  Gilliland, 
C.  C.  A.,  193  Fed.  608:  Crosby  v. 
Cuba  R.  Co.,  158  Fed.  144. 


17  The  Tremolo  Patent,  23  Wall. 
518,  23  L.  ed.  97;  McEldowney  v. 
Card,  193  Fed.  475;  Maddox  v. 
Thorn,  60  Fed.  217.  See  Brock  v. 
Fuller  Lumber  Co.,  C.  C.  A.,  153 
Fed.  272;  Fitchburg  R.  Co.  v.  Nich- 
ols, C.  C.  A.,  85  Fed.  869. 

18  Post  v.  Beacon,  V.  P.  &  El. 
Co.,  C.  C.  A.,  89  Fed.  1,  6:  Fitch- 
burg R.  Co.  v.  Nichols,  C.  C.  A.,  85 
Fed.  869 ;  Newcomb  v.  Burbank,  C. 
C.  A.,  181  Fed.  334. 

19  Rio  Grande  Dam  &  Irrigation 
Co.  v.  U.  S.,  215  U.  S.  266,  268,  54 
L.  ed.  190,  192,  where  the  mandate 
authorized  the  court  below  "to 
grant  leave  to  both  sides  to  adduce 
further  evidence;"  Am.  Bell  Tel. 
Co.  v.  U.  S.,  68  Fed.  542,  570. 

20  RC  Sanford  Fork  &  Tool  Co., 
160  U.  S.  247,  40  L.  ed.  414:  Ber- 
liner Gramophone  Co.  v.  Seaman, 
C.  C.  A..  113  Fed.  750. 

21  St.  Louis  &  S.  F.  R.  Co.  v. 
Loughmiller,  193  Fed.  689,  693. 


§  210] 


FORM   A1N"D   effect. 


719 


ticularly  if  some  of  the  defendants  had  before  answered  that 
bill."1  "The  rule  is  that  the  amended  bill  should  state  no  more 
of  the  original  bill  than  may  be  necessary  to  introduce,  and  to 
make  intelligible,  the  new  matter,  which  should  alone  consti- 
tute the  chief  subject  of  the  bill.  The  reasons  for  this  rule 
are  obvious.  ISTot  only  is  the  incorporating  of  the  old  bill  into 
the  amended  bill  unnecessary,  but  it  increases  the  costs,  and 
exposes  the  defendants,  particularly  those  who  have  answered 
the  original  bill,  to  the  trouble  of  searching  out  and  separating 
the  old  from  the  new  matter,  at  the  peril  of  having  their 
answer  excepted  to  if  any  mistake  should  happen,  and  all  the 
matter  of  the  amended  bill  should  not  be  answered."  2  Accord- 
ingly, an  amended  bill  which  was  obnoxious  to  this  rule  was 
held  impertinent.3  It  is  the  better  practice  for  the  solicitor 
to  sign  the  amendment.4  An  amendment  speaks  as  of  the  date 
of  the  original  bill ; 5  and  an  amendment  alleging  the  reg- 
uisite  difference  of  citizenship  in  the  present  tense  will  be 
presumed  to  refer  to  the  date  of  the  original  bill  and  will 
sustain  the  jurisdiction.6  Where  the  original  bill  stated  that 
the  infringements  charged  were  since  a  specified  date,  it  was 
held  that  the  general  allegations  in  an  amendment  as  to  in- 
fringement at  divers  times  since  the  issue  of  the  patents  did 
not  authorize  proof  thereof  prior  to  the  time  alleged  in  the 
original  pleading.7     Where  an  amended  bill  recited  the  sub- 


§  210.  iPeirce  v.  West's  Ex'rs, 
3  Wash.  354,  355. 

2  Ibid.  In  Alabama,  where  the 
amendment,  was  inconsistent  with 
the  allegations  in  the  original  bill, 
which  it  did  not  correct  or  with- 
draw, the  bill  as  amended  was  dis- 
missed upon  demurrer.  Friedman 
v.  Fennell,  94  Ala.  570,  10  S.  R. 
649.  For  a  case  where  a  paper  de- 
scribed as  an  "amended  petition" 
was  treated  as  an  amendment  to  the 
petition  and  as  setting  forth  not  a 
substitute  to  the  original  cause  of 
action,  but  an  additional  or  alterna- 
tive claim,  see  Melton  v.  Pensacola 
Bank  &  Trust  Co.,  C.  C.  A.,  190 
Fed.  126,  130. 


3  Peirce  v.  West's  Ex'rs,  3  Wash. 
354,  355. 

4Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
313. 

5  Armstrong  Cork  Co.  v.  Mer- 
chants' Refrigerating  Co.,  C.  C.  A., 
184  Fed.   199. 

8  Birdsall  v.  Perego,  5  Blatchf. 
251;  Baltimore  &  O.  R.  Co.  v.  Mc- 
Laughlin, C.  C.  A.,  73  Fed.  519; 
Campbell  v.  Johnson,  C.  C.  A.,  167 
Fed.  102.  Contra,  Sanbo  v.  Union 
Pac.  Coal  Co.,  146  Fed.  80. 

7  Geneva  Mfg.  Co.  v.  Nat.  Furni- 
ture Co.,  188  Fed.  662;  Empire  C. 
&  Tr.  Co.  v.  Empire  C.  &  M.  Co., 
150  U.  S.  159,  37  L.  ed.  1037. 


720  AMENDMENTS.  [§    210 

stance  of  the  original  and  made  the  same  a  part  thereof,  it 
was  held  that  a  corporation  made  a  party  to  the  original  was 
a  party  to  the  amended  bill.  The  amendment  of  a  hill  was 
usually  considered  as  an  admission  of  the  sufficiency  of  the 
answer  as  regards  discovery ; 8  but  an  amendment  which  merely 
brings  in  a  new  defendant  did  not  have  this  effect ; 9  and  the 
court  might,  to  prevent  delay,  entertain  a  motion  to  amend  a 
bill  in  equity  at  the  time  that  exceptions  to  the  answer  are 
filed,  and  then  require  the  defendant  to  answer  the  amendments 
and  the  exceptions  together.10  A  suggestion  by  a  defendant, 
that  an  amendment,  as  to  which  evidence  had  been  offered, 
should  be  allowed  nunc  pro  tunc,  does  not  estop  him  from, 
filing  an  answer  pleading  the  statute  of  limitations  to  the 
same.11  An  amendment  of  a  bill,  at  least  before  answer,  will 
not,  it  seems,  dissolve  an  injunction  previously  granted.12  It 
is,  however,  the  usual  and  the  safer  practice  to  have  a  clause- 
inserted  in  the  order  stating  that  the  amendment  may  be  made 
without  prejudice  to  the  injunction.13  Unless  otherwise  pro- 
vided in  the  order,  it  seems  that  an  amendment  of  a  bill 
will  discharge  all  contempt  proceedings  previously  instituted.14 
But  it  was  held  that  an  amendment  of  a  bill  may  be  allowed 
upon  the  hearing  of  an  application  for  a  preliminary  injunc- 
tion, whereupon  it  takes  effect  at  once,  and  the  hearing  may 
proceed  without  an  adjournment  until  after  the  issue  of  the 
new  subpoena  which  the  amendment  necessitates.15  The  action 
of  the  court  in  submitting  a  case  to  a  jury  on  a  certain  theory 
inconsistent  with  the  plaintiff's  pleading  when  no  exception 
on  that  ground  was  made,  may  be  treated  as  an  amendment  to 

8  Smith's   Ch.   Pr.    (2d   Eng.  ed.)  13  Read    v.     Consequa,     4     Wash. 
307.                                                                  174;    DanielFs    Ch.    Pr.     (5th    Am. 

9  Taylor  v.  Wrench,  3  Ves.  715.  ed.)   424,  425. 

lORittredge   v.    Claremont   Bank,  i*  Smith's  Ch.  Pr.    (2d  Eng.  ed.) 

3  Story,  590.  305;    Gray  v.   Campbell,   1   R.  &  M. 

11  U.  S.  v.  Dalcour,  203  U.  S.  408,  323 ;    Symonds  v.  Duchess   of  Cum- 
51  L.  ed.  248.  berland,  2  Cox,  411. 

12  Read  v.  Consequa,  4  Wash.  174,  15  American    S.    W.    Co.    v.    Wire 
180;  Smith's  Ch.  Pr.   (2d  Eng.  ed.),  D.  &  D.  W.  Unions,  90  Fed.  598. 
300;     Paniell's    Ch.    Pr.     '5th    Am. 

ed.)    424,  425s 


211] 


OF   PLAINTIFF  S  PLEADING. 


721 


his  pleading,  although  no  formal  amendment  is  entered  on  the 
record.16 

§  211.  What  amendments  may  be  made  to  bills  in  equi- 
ty and  declarations  at  common  law.  By  the  former  prac- 
tice an  amendment  in  a  bill  in  equity  was  required  and  usually 
allowed  whenever  the  plaintiff  wished  to  avoid  and  not  merely 
deny  a  defense  in  the  answer  which  had  not  been  anticipated 
in  the  original  bill.1  An  amendment  should  rarely  if  ever  be 
permitted  where  it  would  materially  change  the  very  substance 
of  the  case  made  by  the  bill,  and  to  which  the  parties  have 
directed   their   proofs/'2      It   is   unsettled   whether    a   bill    foi- 


ls Schiffer  v.  Anderson,  C.  C.  A., 
146  Fed.  457,  459;  Erie  R.  Co.  v. 
Kennedy,  C.  C.  A.,  191  Fed.  332. 

§  211.  1  Wilson  v.  Stolley,  4  Mc- 
Lean, 275;  Lant  v.  Manley,  C.  C. 
A.,  75  Fed.  627,  634;  Piatt  v.  Vat- 
tier,  9  Peters,  405,  9  L.  ed.  173. 
See  supra,  §§  136,  195.  This  rule 
did  not  require  that  the  amendment 
set  forth  evidence,  such  as  a  judg- 
ment or  decree,  to  establish  any 
fact  put  in  issue  by  the  pleading, 
Southern  Pac.  R.  Co.  v.  U.  S.,  168 
U.  S.  1,  42  L.  ed.  355. 

2  Harlan.  J.,  in  Hardin  v.  Boyd, 
113  U.  S.  756,  761,  28  L.  ed.  1141, 
1142.  Thus,  where  a  bill  for  the 
enforcement  of  a  judgment  lien 
upon  certain  property  was  filed 
against  certain  specified  defendants. 
an  amendment  was  refused  after  a 
hearing,  when  it  was  sought  to  seek 
discovery  and  relief  against  all  pur- 
chasers of  both  the  property  re- 
ferred to  in  the  original  bill  and 
other  property  of  the  judgment 
debtor.  Snced  v.  McCoull,  12  How. 
407.  422,  13  L.  ed.  1043,  1049.  A 
bill  to  restrain  the  infringement  of 
a  patent  cannot  be  amended  so  as 
to  allege  that  the  title  to  the  patent 
is  in  a  different  person  from  the 
one  who    in    the   original    hill    is   al- 

Goodyear     v. 

Fed.  Prac.  Vol.  J.— 46. 


leged     to     hold     it. 


Bourn.  3  Blatchf.  266.  See  Rylands 
v.  La  Touche,  2  Bligh,  586.  But 
see  Owatonna  Mfg.  Co.  v.  F.  B. 
Fargo  &  Co.,  94  Fed.  519;  infra, 
§  231.  Such  a  bill  may,  however, 
be  amended  so  as  to  set  up  a  reis- 
sue of  the  original  patent,  which 
occurred  before  the  original  bill  was 
filed,  but  was  not  mentioned  herein. 
The  Tremolo  Patent,  23  Wall.  518, 
23  L.  ed.  97;  Reay  v.  Raynor,  19 
Fed.  308;  Reay  v.  Berlin  &  J.  E. 
Co.,  30  Fed.  448.  But  see  Jones 
v.  Barker,  11  Fed.  597.  And  so  as 
to  include  claims  for  damages  and 
profits  due  previous  owners  of  the 
patent,  who  have  assigned  them  to 
the  complainant.  X.  Y.  Crape  S. 
Co.  v.  Buffalo  Grape  S.  Co.,  20  Fed. 
505.  The  allegation  that  certain 
machines  alleged  to  be  used  in  vio- 
lation of  a  patent  were  infringe- 
ments when  made  may  also  lie 
added  by  amendment.  Reay  v.  Ray- 
nor, 19  Fed.  30S.  It  was  held  that 
a  bill  for  a  new  trial  of  an  action 
for  the  price  of  stock  alleged  to 
have  been  sold  the  defendant  could 
not  be  changed  by  amendment  so  as 
to  charge  that  the  defendant  held 
the  stock  in  trust  for  the  complain 
ant.  Oglesby  v.  Attrill.  14  Fed. 
214.  A  hill  tiled  by  several  cred- 
itors Di'aving  the  sale  of  their  d«bt- 


722 


AMENDMENT. 


[§  211 


or,'s  land  in  one  State,  and  tlie  sat- 
isfaction of  their  claims  out  of  the 
proceeds    of    such    sale,    cannot    be 
changed    by    amendment    so    as    to 
pray   relief   to   one   against  another 
of   the  plaintiffs,   in   respect  to   the 
receipt  by  the  latter  of  the  proceed* 
of    the    sale    of    other    land    of    the 
same     debtor    situated    in     another 
State   and   sold   under    a   decree   in 
another      suit      in      another      court. 
Smith   v.   Woolfolk.    115   U.  S.    143, 
148.  29  L.  ed.  357,  359.     A  bill  by 
the  Land  Company  of  New  Mexico 
to  enforce  an  executory  contract  by 
the  defendant  Smoot  for  the  sale  of 
an    interest    in    land    of   which    the 
defendant  Elk  ins  had  the  legal  title, 
and     which     it     was     alleged     that 
Smoot  was   about   to  assign  to  the 
defendant  Butler  with  Elkins's  con- 
nivance,   was    held    not    amendable 
"by    omitting    all    the    parties    but 
Elkins,  and  proceeding  against  him 
upon    the    theory    that    complainant 
had  acquired  Smoot's  interest  by  an 
absolute    and    unconditional    trans- 
fer."    Land  Co.  v.  Elkins,  120  Fed. 
545.     It  was  held  that  a  creditor's 
bill,  filed  to  obtain  the  appointment 
of   a   receiver   of  the   property   of   a 
city,  and  the  application  by  him  of 
its  assets  to  the  satisfaction  of   its 
debts,   could   not  be   amended   so  as 
to  seek  relief  against  a  receiver  and 
back-tax    collector,    appointed    by    a 
subsequent  statute   of   the   State   to 
collect  the  city's  assets.    Meriwether 
v.   Garrett,   102   U.   S.   472.   502.  26 
L.  ed.  197,  200.     But  see  Richmond 
>!    Irons,    121    U.    S.    27.    30    L.    ed. 
S64.     A  bill  to  set  aside  a  sheriff's 
sale  may  be  amended  so  as  to  add  a 
tender    of    the    purchase    price    and 
a   prayer  for  a  redemption  of  prop- 
erty.     Graffam   v.   Burgess,    117   U. 
S.   ISO.  29  L.  ed.  839.     A  bill  to  set 
aside  a  contract  for  the  sale  of  land 


as  obtained  by  fraud  may  be  amend- 
ed by  the  addition  of  an  alternative 
prayer  for  the  specific  performance 
of   the    contract.      Hardin    v.    Boyd, 
113   U.  S.  756,  28  L.  ed.   1141,  dis- 
tinguishing  Shields    v.    Barrow,    17 
How.  130,  15  L.  ed.  158.     A  bill  to 
enjoin     a    railroad    company     from 
transporting  coal   owned   by  a  cor- 
poration,   in    which    it    is    a    stock- 
holder,  may   be  "amended   so   as   to 
set  forth  that  the  latter  corporation 
is  not  a  bona  fide  mining  company, 
but    merely    an    adjunct    or    instru- 
mentality   of    the    defendant,    which 
is  in  effect  the  legal   owner  of  the 
coal   which   it  transports,   and  that 
by  the  use  of  its  power  as  a  stock- 
holder   the    railroad    company    has 
practically    obliterated    all    distinc- 
tion between  the  two   corporations. 
U.   S.   v.   Lehigh  Valley   R.   R.   Co., 
220  U.  S.  257,  55  L.  ed.  458.     A  bill 
to  remove  a  cloud  upon  the  title  to 
land  may  be  amended  so  as  to  seek 
the   enforcement   of   trusts    relating 
to    the    same    property.      Partee    v. 
Thomas,    11    Fed.    709.      See    also 
Xeale   v.   Xeales,   9   Wall.    1,    19   L. 
ed.  590;   Battle  v.  Mutual  Life  Ins. 
Co..    10    Blatchf.    417;     Burgess    v. 
Graffam,  10  Fed.  216.    But  see  Sav- 
age  v.   Worsham,   104   Fed.   80.     It 
has   been   said   that  where   the   bill 
originally    sets    out    one    agreement 
which    it  seeks  to  enforce,   and  the 
answer  admits  the  execution  of  an- 
other agreement  of  a  similar  char- 
acter, but  with  provisions  different 
from  those  alleged   in  the  bill,   the 
plaintiff  may  amend  abandoning  the 
agreement  first  pleaded  by  him,  and 
obtain   the  enforcement  of  that  ad- 
mitted by   the   defendant;    but   that 
he    cannot,    while    still   praying   the 
enforcement  of  the  agreement  as  set 
out   by   him.   amend   so   as   to   seek, 
in  case  he   fail   in  proving  that,  an 


211] 


of  plaintiff's;  pleading. 


723 


discovery  can  be  amended  so  as  also  to  pray  relief.  It  was 
held  that  a  bill  filed  against  persons  in  their  individual  capacity 
cannot  be  amended  so  as  to  sue  them  as  officers  of  a  corpo- 
ration,4 hut  that  when  two  corporations  of  the  same  name 
were  organized  in  different  States,  a  mistake  in  the  designation 
of  the  place  of  incorporation  of  the  complainant5  or  defendant 6 
might  be  corrected  by  amendment,  and  that  so  may  be  a  mis- 
take in  the  name  of  a  corporation  defendant  which  has  ap- 
peared and  defended.7  A  cross-bill  has  been  amended  so  as 
to  radically  change  the  ground  of  the  relief  sought,  when  the 
proofs  which  make  the  amendment  necessary  have  been  fur- 
nished by  the  complainant  in  support  of  the  latter's  original 
bill.8  When  the  suit  was  begun  in  a  Federal  court,  that  court 
may  allow  an  amendment  setting  forth  the  facts  essential  to 
the  Federal  jurisdiction,9  such  as  the  requisite  difference  of 
citizenship,10  or  the  sufficient  value  of  the  matter  in  dispute.11 
The  practice  in  removed  cases  is  considered  in  a  subsequent 
section.18  Allegations  in  a  remittitur  tiled  after  judgment  can- 
not   be    considered    as    amendments    to    a    pleading.13     Great 


enforcement  of  the  one  admitted  in 
the  answer.  Lindsay  v.  Lynch,  2 
Scli.  &  Lef.  1,  9. 

3  See  Horsburg  v.  Baker,  1  Pet. 
232;  7  L.  ed.  125;  Butterworth  v. 
Bailey,  15  Ves.  358;  Hildyard  v. 
Gressy,  3  Atk.  303;  Crow  v.  Tyrell, 
2  Madd.  31)7;  Jackson  v.  Strong.  1 
McClei.  245:  Lonsada  v.  Templer, 
2  Russ.  505:  Daniell's  Ch.  Pr.  (2d 
Am.  ed.)    203-465. 

4  Tyler  v.  Calloway,  13  Fed.  477. 
But  see  Womersley  v.  Merritt,  L. 
R.  4  Eqj  095;  Richmond  v.  Irons, 
121  U.  S.  27,  30  L.  ed.  864:  Pcndery 
v.  Carleton.  87  Fed.  41. 

5  Confectioners'  Mach.  &  Mfg.  Co. 
v.  Racine  Eng.  &  Mach.  Co.  163  Fed. 
914. 

6  Bainum  v.  Am.  Bridge  Co.  of  N. 
Y.,  141  Fed.  179,  where  one  company 
was  designated  in  its  corporate  name 
as  "of  New  York"  and  the  other  as 
"of    New    Jersey";    Ilernan    v.    Am. 


Bridge  Co.,  C.  C.  A.,  167  Fed.  930; 
Clemmens  v.  Washington  Park 
Steamboat  Co.,  171  Fed.  168. 

I  Clemmens  v.  Washington  Park 
Steamboat  Co.,  171  Fed.  168. 

8  Chicago  M.  &  St.  P.  Ry.  Co.  v. 
Third  Xat.  Bank.  134  U.  S.  276, 
289,  33  L.  ed.  900,  904. 

9  Continental  Ins.  Co.  v.  Rlroads, 
119  U.  S.  237,  30  L.  ed.  380,  Ilalstcd 
v.  Buster,  119  U.  S.  341,  30  L.  ed. 
402;  Denny  v.  Pi  1011  i.  141  U.  S.  121, 
124.  35  L.  ed.  657.  058;  Watson  v. 
Bonfils,  C.  C.  A.,  116  Fed.  157;  Mad- 
dox  v.  Thorn.  60  Fed.  217.  See 
Brock  v.  Fuller  Lumber  Co.,  C.  C. 
A.,  153  Fed.  272.  Contra,  Dickin- 
son v.  Consol.  Tr.  Co.,  114  Fed.  I'M. 

10  Ibid. 

II  Thompson  v.  Automatic  «Fire 
Protection   Co..   151    Fed.   945. 

12 Infra,  Chapter  XXXII. 
13  Denny  v.  I'ironi,  141  U.  S.  121, 
35  L.  ed.  657. 


■724 


AMENDMENT. 


[§  211 


liberality  is  allowed  as  to  amendments  which  strike  out 
parties,14  or  bring  in  new  parties/5  except  as  to  bills  for 
discovery,  to  which  in  England  no  new  parties  could  be  added,16 
but  an  indispensable  party  whose  citizenship  would  defeat  the 
jurisdiction  cannot  be  brought  in  by  amendment,17  and  after  a 
removal,  an  amendment  to  substitute  a  defendant  for  the  pur- 
pose of  defeating  the  jurisdiction  has  been  denied.18  A  bill 
filed  by  a  married  woman  can  almost  always  be  amended  by 
the  addition  of  the  name  of  a  next  friend  when  necessary.19 
A  bill  filed  on  behalf  of  one's  self  and  others  may  be  amended 
by  striking  out  the  invitation  to  others  to  join,  provided  none 
of  them  have  come  in ; 20  and  a  bill  in  one's  own  name  may  be 
amended  by  the  addition  of  words  sufficient  to  make  it  a  bill 
in  behalf  of  a  class.21  Amendments  have  been  allowed  so  as 
to  change  a  bill  or  declaration  filed  by  the  plaintiff  individually 
into  one  filed  by  him  as  executor,22  or  administrator,23  or  a 
bill  filed  by  him  as  administrator  into  one  filed  by  him  in  his 
individual  capacity,24  and  a  bill  filed  against  an  executor  into 
one  charging  him  as  administrator  of  the  same  person,20  al- 
though the  statute  of  limitations  had  expired.26  It  has  been 
said   that  when   the   complaint   contains   any   allegation   of   a 


HConolly  v.  Taylor,  2  Pet.  556, 
7  L.  ed.  518;  Dwight  v.  Humphreys, 
3   McLean,    104. 

15  Fisher  v.  Rutherford,  Baldwin, 
188;  Patterson  v.  Stapler,  7  Fed. 
210. 

16  Marquis  Cholmondeley  v.  Lord 
Clinton,  2  Meri.  71.      . 

17  Delaware,  L.  &  W.  Pv.  Co.  v. 
Mayer,  etc.,  of  Jersey  City,  168  Fed. 
128. 

18  Taylor  v.  Weir,  162  Fed.  585, 
h  here  there  were  circumstances  from 
which  an  estoppel  might  arise. 

"Douglas  v.  Butler,  6  Fed.  228. 

20  Yates  v.  Arden,  5  Cranch  C. 
C.  526:  Anthony  v.  Campbell,  C.  C. 
A..    112    Fed.    212. 

21  Richmond  v.  Irons,  121  U.  S. 
27.  30  L.  ed.  S64 ;  Good  v.  Blewitt, 
13  Yes.  397,  401;  Atty.  Gen.  v.  Xew- 


combe.    14   Ves.   1,   6;    Resse   R.   S. 
Min.  Co.  v.  Atwell,  L.  R.  7  Eq.  347. 

22  Leahy  v.  Haworth,  C.  C.  A.,  4 
L.R.A.(X.S.)    657,    141   Fed.   850. 

23  Missouri,  K.  &  T.  Ry.  Co.  v. 
Wulf,  C.  C.  A.,  192  Fed.  919;  Rear- 
don  v.  Balaklala  Consol.  Copper  Co., 
193  Fed.  189.  An  amendment  was 
allowed  upon  the  trial  to  permit  an 
administratrix  to  amend  by  aver- 
ring that  her  appointment  was  by 
a  local  court  of  a  different  county 
from  that  first  alleged  in  her  decla- 
ration. Chicago  Great  Western  R. 
Co.  v.  McCormick,  C.  C.  A.,  200  Fed. 
375. 

24  St.  Louis  &  S.  F.  R.  Co.  v.  Herr, 
C.  C.  A.,  193  Fed.  950. 

25  Randolph  v.  Barrett,  16  Pet. 
138,  10  L.  ed.  914. 

26  Reardon  v.  Balaklala  Consol. 
Copper  Co.,  193  Fed.  189. 


211] 


OF   PLAINTIFF  S    PLEADING. 


725 


ground  of  recovery,  although  merely  inferential,  the  court  has 
discretionary  power  to  permit  the  defect  to  be  cured  by  amend- 
ment.27 In  an  English  case,  a  bill  in  behalf  of  a  charity  was 
changed  by  amendment  into  an  information.28  Before  the  new 
equity  rules,  it  was  held  that  in  a  removed  case,  a  complaint 
containing  a  statement  of  grounds  for  equitable  relief  might 
be  amended,  so  as  to  turn  it  into  a  bill  in  equity;  although 
the  issues  have  been  tried  on  the  common  law  side  of  the 
court.29  Xow,  if  at  any  time  it  appear  that  a  suit  commenced 
in  equity  should  have  been  brought  as  an  action  on  the  law  side 
of  the  court,  it  shall  be  forthwith  transferred  to  the  law  side 
and  be  there  proceeded  with,  with  only  such  alteration  in  the 
pleadings  as  shall  be  essential.30  An  amendment  to  a  petition 
which  sets  up  no  new  cause  of  action  and  makes  no  new  de- 
mand, but  simply  varies  or  expands  the  allegations  in  support 
of  the  cause  of  action,  previously  pleaded,  relates  back  to  the 
beginning  of  the  action ;  and,  when  the  suit  was  begun  within 
the  statutory  period  of  limitation,  it  is  not  barred  by  the  ex- 
piration of  that  time  previous  to  the  amendment;31  but  an 
amendment,  which  introduces  a  new  or  different  cause  of  ac- 
tion and  makes  a  new  or  different  demand,  is  the  equivalent 
of  a  fresh  suit  upon  a  new  cause  of  action,  and  the  statute 
continues  to  run  until  the  amendment  is  made.32  The  former 
rule  applies  although  the  two  causes  of  action  arise  out  of  the 
same  transaction,  when,  by  the  practice  of  the  State,  a  plain- 
tiff is  only  required,  in  his  pleading,  to  state  the  facts  which 
constitute  his  cause  of  action,33  when  the  original  declaration 
referred  to  a  State  law  and  the  amendment  to  the  Federal  Em- 
ployers' Liability  Act,  the  allegations  of  fact,  except  as  to  the 


27  Great  Northern  Ry.  Co.  v.  Her- 
ron,  C.  C.  A.,  136  Fed.  49. 

28  President  of  St.  Mary  M.  Col- 
lege v.  Sibthorp,  1  Russ.  154. 

29  Goodyear  Shoe  Machinery  Co. 
v.  Dancel,  C.  C.  A.,  119  Fed.  692; 
Dancel  v.  Goodyear  Shoe  Machinery 
Co.,  C.  C.  A.,  144  Fed.  679,  in  which 
the  author  Mas  counsel.  The  point 
does  not  appear  in  the  report,  but 
the  permission  was  contained  in  the 
mandate,  and  objections  to  the  same 


argued  twice  in  the  Circuit  Court 
of  Appeals,  and  again  upon  the  peti- 
tion for  a  certiorari  which  was  de- 
nied by  the  Supreme  Court;  202 
U.  S.  619.  50  L.  ed.  1174. 

30  Eq.  Rul.  22. 

31  Patillo  v.   Allen-West  Commis- 
sion Co.  131  Fed.  680. 

32  U.  S.  v.  Dalcour,  203  U.  S.  408, 
423,   51   L.  ed.  248,  251. 

33  Patillo    v.    Allen-West    C.    Co. 
131  Fed.  680. 


726 


AMENDMENT. 


[§  212 


capacity  in  which  the  plaintiff  sued,  being  in  Loth  pleadings 
the  same,34  and  when  the  complaint  stated  facts,  from  which 
the  law  raised  the  legal  presumption  of  a  promise  to  pay  the 
balance  of  an  account  stated  and  demanded  judgment  for 
that  amount,  it  and  this  amendment,  added  an  averment  of  a 
promise  to  pay  the  balance.35  But  it  has  been  held :  that  a  new- 
cause  of  action  is  presented  by  changing  the  ground  of  recovery 
from  a  right  at  common  law  to  one  under  a  Kansas  statute,  6 
or  from  a  right  under  a  treaty  to  a  right  under  a  statute, 
which  did  away  with  the  defense  that  the  negligence  of  which 
complaint  was  made  was  that  of  a  fellow-servant ; 37  and  that 
if  the  statutory  period  expired  before  such  an  amendment,  the 
claim  was  barred.38 

§  212.  Amendment  by  pleading  matters  subsequent  to 
the  filing  of  the  bill.  The  general  rule  is  that  nothing  which 
has  occurred  since  the  filing  of  a  bill  can  be  added  to  it  by 
amendment.1  Such  matters,  when  admissible,  should  ordi- 
narily be  introduced  by  a  supplemental  bill.2  It  was  held  in- 
competent to  amend  a  bill,  stating  that  certain  notes  and  mort- 
gages were  executed  under  a  threat  bv  the  defendant  that  he 
would  kill  the  complainant  if  they  were  not  executed  and 
paid  at  their  maturity,  by  adding  the  allegation,  "that  in  pur- 
suance of  such  threat  the  defendant  did,  subsequently  to  the 
commencement  of  this  suit,  take  the  life  of  the  original  com- 
plainant." 3  Such  a  murder  does  not  add  to  the  complainant's 
cause  of  action,  although  it  might  be  put  in  evidence  as  tend- 
ing to  prove  the  original  duress.4  A  bill  may  perhaps  be 
amended  before  answer,  demurrer,  or  plea,  by  alleging  new 
matter  that  has  occurred  since  it  was  first  filed.5     And  it  has 


34  u.  S. 

35Patillo  v.  Allen- West  C.  Co., 
131   Fed.  680. 

36  Union  Pac.  Ry.  Co.  v.  Wyler, 
158  U.  S.  285,  39  L.  ed.  983;  U.  S. 
v.  Dalcour,  203  U.  S.  408,  51  L.  ed. 
248. 

37  Union  Pae.  Ry.  Co.  v.  Wyler, 
158  U.  S.  285,  298,  39  L.  ed.  983, 
991 ;  IT.  S.  v.  Dalcour.  203  U.  S.  408, 
423.  51  L.  ed.  248,  251. 

38  Ibid. 

§  212.     1  Wray   v.   Hutchinson,   2 


Myl.  &  K.  235:  Mason  v.  Hartford, 
P.  &  F.  R.  Co.,  10  Fed.  334;  Copen 
v.  Fleslier,  1  Bond.  440:  Lvster  v. 
Stickney,  12  Fed.  609:  Mellor  v. 
Smither,  C.  C.  A..   114   Fed.  116. 

2  See  §  231,  infra. 

SLyster  v.  Stickney,  12  Fed.  609. 
610. 

4Lyster  v.  Stickney.  12  Fed.  609. 

5  Story's  Eq.  PI..  §  885;  Candler 
v.  Pettit,  1  Paige  (N.  Y.),  168; 
Ogden  v.  Gibbons,  Haist.  N.  J.  Dig. 
172. 


§  212] 


MATTER    SUBSEQUENT. 


727 


been  held  that  where  a  plaintiff  has,  at  the  time  of  filing  his 
original  bill,  an  inchoate  right,  to  perfect  which  a  formal  act 
alone  is  necessary,  and  such  formal  act  is  not  performed  till 
afterwards ;  as  where  an  executor  files  a  bill  before  probate, 
and  subsequently  proves  the  testament,6  or  the  next  of  kin 
brings  a  suit  to  protect  the  personal  estate  of  an  intestate,  subse- 
quently procures  her  appointment  as  administratrix,7  or  a 
foreign  administrator  files  a  bill  before  obtaining  ancillary 
letters  of  administration,  and  such  letters  are  subsequently 
issued  to  him ; 8  the  introduction  of  the  fact  by  amendment  will 
be  permitted.9  It  has  been  said  that  amendments  might  be 
allowed  to  set  forth  damages  that  accrued  since  the  filing  of 
the  bill.10  It  has  been  also  held  in  England  that  the  "defend- 
ant, when  he  puts  in  his  answer,  must  state  the  facts  as  they 
then  are ;  and  if  circumstances  are  then  introduced  in  the 
answer  which  occurred  subsequent  to  the  filing  of  the  bill  the 
plaintiff  must  be  allowed  to  make  amendments  to  the  bill,  so 
as  to  show  that  such  new  circumstances  mentioned  in  the 
answer  are  not  of  the  color  he  represents  them,  and  so  as  to 
obtain  a  complete  answer  as  to  such  circumstances."  u  Except 
possibly  in  a  few  cases  of  the  assignment  of  patents,12  where 
the  plaintiff  has  no  cause  of  action  at  the  time  the  suit  is 


SBelloat  v.  Morst,  2  Hayw.  (N. 
C.)  157;  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)    460. 

7  Humphreys  v.  Humphreys,  3 
P.  Wms.  348;  Bradford  v.  Felder, 
2  M'Cord  (S.  C),  Ch.  170.  See 
Person  v.  Fidelity  &  Casualty  Co., 
C.  C.  A.,  92  Fed.  965;  reversing 
s.  c,  84  Fed.  759:  Mo.,  Kansas 
&  Tex.  By.  Co.  v.  Wulf,  226  U.  S. 
570,  57  L.  ed.  — . 

8  Swatzel  v.  Arnold,  Woolw.  338 ; 
Black  v.  Henry  G.  Allen  Co.,  9 
L.R.A.  433.  42  Fed.  618,  624;  Hodges 
v.  Kimball.  C.  C.  A.,  91  Fed.  845; 
Leahy  v.  Haworth,  C.  C.  A.,  141 
Fed.  850:  holding  that  the  ancil- 
lary letters  related  back  to  the 
date  of  the  filing  of  the  bill,  not 
only   for   the  purpose   of  qualifying 


complainant  to  sue,  but  also  so 
as  to  defeat  the  statute  of  limi- 
tations. Dodge  v.  Town  of  North 
Hudson,  188  Fed.  489,  an  action  un- 
der the  State  statute  for  negligence, 
which  caused  the  death  of  the  intes- 
tate. Contra,  Mason  v.  Hartford, 
P.  &  F.  R.  Co.,  10  Fed.  334. 

9  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
460,  461;  Swatzel  v.  Arnold, 
Woolw.  383;  Black  v.  Henry  G. 
Allen  Co.  9  L.R.A.  433,  42  Fed.  618, 
624;  Humphreys  v.  Humphreys,  3 
P.  Wms.  348. 

10  Mitchell  v.  Big  Six  Develop- 
ment Co.,  186  Fed.  552. 

11  Sir  Thomas  Plumer,  V.  C.  in 
Knight  v.   Matthews,   1   Madd.  566. 

12  See  infra,  §  231. 


728 


AMENDMENT. 


[§  213 


brought,  he  cannot  continue  the  suit  by  pleading  the  subse- 
quent accrual  of  a  cause  of  action  to  him.13  Thus,  a  defective 
creditor's  bill  cannot  be  amended  by  setting  up  a  judgment 
obtained  after  it  was  filed.14  Where,  prior  to  the  filing  of  a 
bill  for  the  infringement  of  a  patent,  the  defendant  had  com- 
mitted no  infringement,  and  had  threatened  none ;  it  was 
held :  that  a  subsequent  change  in  the  structure,  which  con- 
stituted an  infringement,  would  not  warrant  the  granting  of 
a  preliminary  injunction  in  the  same  suit.15 

§  213.  Proceedings  upon  an  amended  bill.  When  the 
amendment  merely  brings  in  new  parties  defendant,  they  alone 
need  be  served  with  a  new  subpoena.1  If,  however,  a  bill  is 
substantially  amended  by  the  addition  of  new  charges,  according 
to  the  English  practice  a  subpoena  to  answer  the  amendments 
had  to  be  sued  out  and  served  upon  all  the  defendants.2  Where, 
before  answer,  the  bill  is  amended  in  a  material  point,  the 
time  to  answer  is  extended  to  the  same  time  as  if  the  amended 
were  an  original  bill.3  If,  however,  a  defendant  has  answered 
the  original  bill,  he  cannot,  without  obtaining  leave  to  with- 
draw his  first  answer,  answer  to  any  more  than  the  new  matter, 
unless  the  amendments  virtually  make  a  new  case.4  Where 
the  amendments  seek  to  introduce  new  matter  which  is  properly 
the  subject  of  a  supplemental  bill,  the  defendant  must  raise 
that  objection  by  answer,5  or  motion  to  dismiss.6  Otherwise, 
the  objection  will  be  waived.7  The  equity  rules  provide  that, 
"In  any  case  where  an  amendment  shall  be  made  after  answer 


13  Putney  v.  Whitmire,  66  Fed. 
385;  Westinghouse  Air-Brake  Co.  v. 
Cliristensen  Engineering  Co..  121 
Fed.  55S;  Am.  Bonding  &  Tr.  Co. 
v.  Gibson  County,  C.  C.  A.,  145  Fed. 
87]. 

14  Putney  v.  Whitmire,  66  Fed. 
385. 

15  Westinghouse  Air-Brake  Co.  v. 
Christensen  Engineering  Co.,  321 
Fed.  558. 

§  213.  ILongworth  v.  Taylor,  1 
McLean,  514;   Angerstein  v.  Clarke, 

1  Ves.  Jr.  250:   Skeflington  v.  , 

4  Ves.  66. 

2  Cooke   v.  Davies,  T.   &   R.   309; 


Bramston  v.  Carter,  2  Sim.  45S. 
See  Kendall  v.  Beckett,  1  Buss.  152. 

3  Nelson  v.  Eaton,  66  Fed.  376. 

*  Keene  v.  Wheatley,  9  Am.  Law 
Reg.  33,  60:  Atkinson  v.  Hanway, 
1  Cox  Eq.  360;  Ellice  v.  Goodson, 
3  "M.  &  C.  653;  Ritchie  v.  Aylwin 
15  Ves.  79;  North  Chicago  St.  R. 
Co.  v.  Chicago  Union  Traction  Co., 
150  Fed.  612.  See  Ellice  v.  Good- 
son.  3  M.  &  C.  653. 

5  Wray  v.  Hutchinson,  2  M.  &  K. 
235. 

6  Brown  v.  Higden,  1  Atk.  291. 

1  Archbishop  of  York  v.  Staple- 
ton,  2  Atk.  136. 


§    214]  OF  ANSWERS  AND  PLEAS.  729 

filed,  the  defendant  shall  put  in  a  new  answer  or  supple- 
mental answer  within  ten  days  after  that  on  which  the  amend- 
ment or  amended  bill  is  filed,  unless  the  time  is  enlarged  or 
otherwise  ordered  by  a  judge  of  the  court;  and  upon  his  de- 
fault, the  like  proceedings  may  be  had  as  in  cases  of  an  omis- 
sion to  put  in  an  answer."8  An  answer  to  an  amended  bill 
is  impertinent  if  it  contains  any  matter  which  was  pleaded  in 
the  answer  to  the  bill  before  amendment.9  It  seems  to  have 
been  the  English  rule  that  an  answer  to  an  amended  bill  might 
set  up  an  entirely  new  defense  inconsistent  with  that  in  his 
former  answer.10  The  court  may  after  amendment  refuse  leave 
to  file  an  answer  which  does  not  plead  a  defense  to  the  new 
matter.11 

§  214.  Amendment  of  answers  and  pleas.  The  Equity 
Eules  provide  concerning  the  amendment  of  answers:  'The 
answer  may  be  amended,  by  leave  of  the  court  or  judge,  upon 
reasonable  notice,  so  as  to  put  any  averment  in  issue,  when 
justice  requires  it."1  It  will  be  observed  that  this  does  not 
specifically  provide  for  the  insertion  of  a  new  affirmative  de- 
fense by  amendment,  as  was  permitted  by  the  former  prac- 
tice.2 The  principles  upon  which  the  courts  proceed  in  allow- 
ing such  amendments  is  thus  stated  by  Judge  Story:  "In 
mere  matters  of  form,  or  mistakes  of  dates,  or  verbal  in- 
accuracies, courts  of  equity  are  very  indulgent  in  allowing 
amendments.  But  when  application  is  made  to  amend  an 
answer  in  material  facts,  or  to  change  essentially  the  grounds 
taken  in  the  original  answer,  courts  of  equity  are  exceedingly 
slow  and  reluctant  in  acceding  to  it.  To  support  such  appli- 
cations, they  require  very  cogent  circumstances,  and  such  as 
to  repel  the  notion  of  any  attempt  of  the  party  to  evade  the 
justice  of  the  cause,  or  to  set  up  new  and  ingeniously  contrived 
defenses  or  subterfuges.  When  the  object  is  to  let  in  new  facts 
and  defenses  wholly  dependent  upon  parol  evidence,   the  re- 

8  Equity  Rule  32;  copied  in  sub-  n  Chicago,  M.  &  St.  P.  Ry.  Co. 
stance  from  Eq.  Bill.  46  of  1842.             v.  Third  Xat.  Bank,  134  U.  S.  270, 

9  Gier  v.  Gregg,  4  McLean,  202.  289,  33  L.  ed.  900,  905. 
lODaniell's  Ch.  Pr.    (2d  Am.  ed.)  §  214.     1  Eq.   Rule  30. 

4G8;    citing   Bolton   v.   Bolton,   MS.  2  See  Smith  v.  Babcock,  3  Sumner, 

See  also  Trust  &  F.  Ins.  Co.  V.  Jen-       583. 
kins,  8  Paige   (X.  Y.)   589. 


730  AMENDMENT.  [§    214 

luctance  of  the  court  is  greatly  increased,  since  it  has  a  natural 
tendency  to  encourage  carelessness  and  indifference  in  making 
answers,  and  leaves  much  room  for  the  introduction  of  testi- 
mony manufactured  for  the  occasion.  But  when  the  new  facts 
sought  to  be  introduced  are  written  papers  or  documents,  which 
have  been  omitted  by  accident  or  mistake,  there  the  same 
reason  does  not  apply  in  its  full  force,  for  such  papers  and 
documents  cannot  be  made  to  speak  a  different  language 
from  that  which  originally  belonged  to  them.  The  whole 
matter  rests  in  the  sound  discretion  of  the  court."  3  "It  seems 
to  me  that  before  any  court  of  equity  should  allow  such 
amended  .  answers,  it  should  be  perfectly  satisfied  that  the 
reasons  assigned  for  the  application  are  cogent  and  satisfac- 
tory; that  the  mistakes  to  be  corrected,  or  the  facts  to  be 
added,  are  made  highly  probable,  if  not  certain;  that  they 
are  material  to  the  merits  of  the  case  in  controversy;  that  the 
party  has  not  been  guilty  of  gross  negligence;  and  that  the 
mistakes  have  been  ascertained,  and  the  newr  facts  have  come 
to  the  knowledge  of  the  party,  since  the  original  answer  was 
put  and  sworn  to.  "Where  the  party  relies  upon  new  acts  which 
have  come  to  his  knowledge  since  the  answer  was  put  in,  or 
where  it  is  manifest  that  he  has  been  taken  by  surprise,  or 
where  the  mistake  or  omission  is  manifestly  a  mere  inadvert- 
ence and  oversight,  there  is  generally  less  reason  to  object  to 
the  amendment  than  there  is  where  the  whole  bearing  of  the 
facts  and  evidence  must  have  been  well  known  before  the 
answer  wTas  put  in."  4  Permission  may  be  granted  upon  terms ; 
for  example,  that  the  testimony  on  the  issues  raised  by  the 
former  pleading  be  allowed  to  stand  and  that  subsequent  pro- 
ceedings be  taken  upon  short  notice.5  An  amendment  of  an 
answer,6  or  a  cross-bill,  changing  the.  character  of  the  defense 
will  rarely  be  allowed  after  the  court  has  rendered  or  caused 
to  be  rendered  an  opinion   adverse  to   the  position   originally 

3  Smith  v.  Babcock,  3  Sumn.  583,  6  Calloway  v.  Dobson.  1  Brock. 
586.  119:;    Gubbins    v.    Laughtenschlager, 

4  Smith  v.  Babcock..  3  Sumn.  583,  75  Fed.  615;  Claflin  v.  Bennett,  51 
586;  X.  Y.  Filter  Co.  v.  O.  H.  Jewett  Fed.  693,  701.  See  Walden  v.  Bod- 
F.  Co..  62  Fed.  5S2.  lev,    14    Pet.    156.    10    L.    ed.    398; 

5  Farmers'  Loan  &  Tr.  Co.  v.  Cen-  Hamilton  v.  Nevada  G.  &  S.  M.  Co., 
tral  Park,  N.  &  E.  P..   R.   Co.,   175  33  Fed.  562,  568. 

Fed.  528. 


§  215] 


PRACTICE. 


731 


taken  by  the  defendant.7  The  defendant  will-  rarely  be  allowed 
to  withdraw  an  admission  which  he  has  made.8  Leave  to 
amend  will  be  denied  when  the  complainant  proves 
conclusively  by  affidavit  that  the  new  matter  sought  to 
be  introduced  is  false.9  Ordinarily,  leave  to  amend  an 
answer  will  be  denied  when  the  defendant  knew  of 
the  facts  which  he  wishes  to  introduce,  at  the  time 
his  original  answer  was  drawn ; 10  or  might  have  then 
discovered  them  bv  the  exercise  of  reasonable  diligence.11  An 
omission  due  to  a  mistake  of  law  cannot  ordinarily  be  cured 
by  amendment.12  The  court  may  refuse  to  allow  an  amend- 
ment which  would  introduce  an  unconscientious  defense,  such 
as  the  statute  of  limitations,13  the  statute  of  frauds,14  or  that  a 
contract  made  by  a  complainant  corporation  was  not  authorized 
by  its  charter.15  When  the  proposed  amendment  is  trivial 
the  answer  may  be  remove  dfrom  the  file,  altered,  resworn  to, 
and  refiled ; 16  but  if  it  is  of  any  length,  it  is  customary  to  file 
a  supplemental  answer  setting  it  forth.17  Pleas  at  common 
law,  verified  before  the  wrong  officer,  may  be  corrected  by 
amendment  and  the  proper  verification  added  on  the  trial,18 
and  amendments  to  pleadings  will  be  allowed  at  common  law 
in  all  cases  authorized  by  the  State  statute.19 

§  215.  Practice  in  obtaining  leave  to  amend.  It  has 
been  held  that  the  practice  upon  an  application  to  amend  at 
common  law  follows  that  in  the  State  where  the  action  is  pend- 


7  Ferguson  Contracting  Co.  v. 
Manhattan  Tr.  Co.,  C.  C.  A.,  118 
Fed.  791. 

SRuggles  v.  Eddy,  11  Blatchf. 
524. 

9  Hicks  v.  Otto,  17  Fed.  539. 

10  India  R.  C.  Co.  v.  Phelps,  8 
Blatchf.  85;  Webster  L.  Co.  v.  Hig- 
gins,  13  Blatchf.  349;  Cross  v.  Mor- 
gan, 6  Fed.  241 ;  Suydam  v.  Trues- 
dale,  6  McLean,  459.  But  see  Stand- 
ard El.  I.  Co.  v.  Ramsey,  130  Fed. 
151. 

11  India  R.  C.  Co.  v.  Phelps,  8 
Blatchf.  85;  Webster  L.  Co.  v.  Hig- 
gins,  13  Blatchf.  349. 

12  Webster  L.*  Co.  v.   Higgins,   13 


Blatchf.    349;    Cross    v.    Morgan,    G 
Fed.  241. 

13  Cock  v.  Evans.  9  Yerg  (Tenn.) 
287. 

14  Cook  v.  Bee,  2  Tenn.  Ch.  344. 

15  Third  Av.  Saw  Bank  v.  Dim- 
ock.  9  C.  E.  Green  (24  N.  J.  Eq.)  26. 

16  Bailey  W.  Mach.  Co.  v.  Young, 
12   Blatchf.    199. 

17  Bolder  v.  Bank  of  England,  10 
Yes.  284,  285;  Daniell's  Ch.  Pr. 
(5th  Am.  ed.)    779,  780. 

is  Bank  of  Edgfield  v.  Farmers' 
C.  M.  Co.,  18  L.R.A.  201,  52  Fed.  98. 

19  Leman  v.  Baltimore  &  O.  R. 
Co.,  128  Fed.  191. 


AMENDMENT. 


•[§  215 


ing.     In  equity  the  application  for  leave  to  amend  must  be  in 
writing,   stating  the  new  matter  which   the   applicant  desires 
to   introduce   by    amendment,    and   must  be   supported   by   an 
affidavit,  staging  the  reason  why  this  matter  was  not  included 
in   the  original  pleading.1     It  is  the  better  practice  for   the 
complainants  to  present  specific  amendments  to  paragraphs  of 
the  original  bill2  and  not  to  present  a  substituted  bill,3  except 
under  extraordinary  circumstances.    In  one  case,  detailed  proof 
by  affidavit  was  required  concerning  matters  that  it  was  de- 
sired to  add  by  amendment  in  a  general  allegation.4     When  a 
party   is  entitled   to   amend   as  of  course,   no   affidavit   is   re- 
quired.5    Where  the  former  pleading  was  verified,  oath  must 
be  made  to  the  truth  of  the  proposed  amendment.6     Where  the 
proposed  amendment  consists  of  matters  disclosed  by  documen- 
tary evidence,  the  documents  themselves  must  be  produced  if 
possible.7     Notice  of  the  application  for  an  amendment  must 
always  be  given   when   leave   of  the   court   is  required.8      An 
amendment  inserting  the  name  of  a  new  party  plaintiff  should 
not,  ordinarily,  be  allowed  without  notice  to  him.9     The  court 
may  impose  costs  or  other  terms  as  a  condition  precedent  to 
amendment;   for   example,   a   disclosure   of  the   names   of   the 
witnesses  whom   the  party  expects  to  call  to  prove  the  new 
matter,10  or  a  direction  that  testimony  taken  under  the  former 
issue  shall  be  allowed  to  stand  and  that  short  notice  be  taken 
of  subsequent  proceedings.11    The  time  within  which  the  amend- 


§  215.  1U.  S.  R.  S.,  §  914; 
Rosenbach  v.  Dreyfuss,  1  Fed.  391; 
Leman  v.  Baltimore  &  0.  R.  Co., 
128  Fed.  191.  But  see  Erstein  v. 
Rothschild.  22  Fed.  61.  Contra, 
dicta  in  Manitowoc  Malting  Co.  v. 
Fuechtwanger.  169  Fed.  983:  Snead 
v.  M'Goull,  .12  How.  407..  422.  13  L. 
ed.  1043,  1049:  Mer.  Nat.  Bank  v. 
(  arpenter,  3  0]  U,  S.  5i;7.  25  L.  ed. 
815;  Wells  v.  Wood,  10  Yes.  401; 
Nabob  of  the  Carnatic  v.  East  In- 
dia Co..  1  Yes.  Jr.  374.  385;  Rod- 
gers  v.  Rodgers,  1  Paige  (X.  Y.), 
424;  Daniell's  Cli.  Pi\  (5th  Am. 
ed.)   781. 

2  Old  Dominion  Copper  Mining  & 


Smelting  Co.  v.  Lewisohn,  176  Fed. 
745. 

3  Ibid. 

4  Postal  Tel.  Cable  Co.  v.  Liver- 
more  &  Knight  Co.,  194  Fed.  ISO. 

5  Chase  Electric  Const.  Co.  v.  Co- 
lumbia Const,  Co.,  136  Fed.  699. 

6  Rodgers  v.  Rodgers,  1  Paige  (N. 
Y.),  424. 

7  Churton  v.  Frewen,  L.  R.  1  Eq. 
238:  Daniell's  Ch.  Pr.  (5th  Am. 
ed.)   781. 

8  Rkrgs  v.  Brown,  172  Fed.  63S. 

9  Frank  v.  Union  Cent.  L.  I.  Co., 
130  Fed.  224. 

10  Caster  v.  Wood.  1   Baldw.  289. 

11  Farmers'  Loan  &  Tr.  Co.  v.  Cen- 


§  215] 


PRACTICE. 


733 


ment  must  be  filed  may  be  limited.12  It  has  been  said  that 
when  leave  is  asked  to  file  a  substituted  bill  of  coin  phi  int.  the 
court  can  only  permit  or  reject  it  as  a  whole  and  should  not 
be  expected  to  refuse  the  same  and  permit  it  to  be  filed  when 
drawn  in  a  different  form.13  When  leave  to  amend  by  adding 
the  essential  jurisdictional  averments  was  granted  after  verdict 
for  plaintiff,  no  trial  was  permitted  of  any  other  issue  except, 
that  which  the  defendant  raised  upon  the  same.14  and  the 
verdict  upon  the  other  issues  was  allowed  to  stand.15  In  one 
case,  the  parties  were  directed  to  take  depositions  concerning 
the  jurisdictional  allegations  in  support  of  the  application,  for 
an  amendment.16  The  order  allowing  the  amendment  should 
state  the  new  matter  to  be  inserted.17  If  the  amended  pleading 
states  new  matter  not  allowed  by  the  order,  it  may  be  stricken 
from  the  file.18  An  objection  that  an  amended  bill  contains 
matter  which  should  have  been  pleaded  in  a  supplemental  bill 
is  waived  if  not  set  up  by  demurrer,  plea  or  answer.19  It  was 
held,  that  an  order  dismissing  a  bill,  when  a  plea  is  sustained, 
is  a  bar  to  a  subsequent  application  for  leave  to  amend.20  The 
court  upon  appeal  will  disregard  an  amended  pleading  filed 
without  leave,21  unless  the  other  party  has  treated  it  a  sinvalid. 
when  he  cannot  raise  the  objection  for  the  first  time  upon 
appeal.22  AYhen  both  parties  have  conducted  the  case  as  if  the 
pleadings  contained  certain  allegations  therein  omitted,  an 
amendment  inserting  such  allegations  may  be  allowed  at  almost 
any  stage  of  the  cause.23    Where  the  record  on  appeal  shows  that 


tral  Park,  X.  &  E.  R.  R.  Co.,  175 
Fed.  528. 

12  Klein  v.  Title  Guaranty  &  Sure- 
ty Co..  100  Fed.  305,  ten  days. 

ISOld  Dominion  Copper  Mining  & 
Smelting  Co.  v.  Lewisohn,  170  Fed. 
745. 

14  Crosby  v.  Cuba  R.  Co..  158  Fed. 
144,  153;  Grand  Trunk  Western  R. 
Co.  v.  Reddick.  C.  C.  A.,  100  Fed. 
898. 

15  Ibid. 

16  Crosby  v.  Cuba  R.  Co.,  158  Fed. 
144.  153. 

lTDaniell's  Ch.  Pr.  (5th  Am.  ed.) 
410. 


18  Strange  v.  Collins,  2  V.  &  B. 
163,  167. 

19  Seattle  &  S.  &  E.  Ry.  Co.  v. 
Union  Tr.  Co.,  79  Fed.  179. 

20  Raphael  v.  Trask.  IIS  Fed.  678. 

21  Terry  v.  McLure,  103  U.  S.  442, 
20   L.  ed.   403. 

22  Clements  v.  .Moore,  0  Wall.  299, 
18    L.   ed.    7S0. 

28 Tremolo  Patent,  23  Wall.  :.ls. 
23  L.  I'd.  97;  Confectioners'  Mach. 
&  Mfg.  Cc  v.  Racine  Eng.  &  Mach. 
Co.,  103  Fed.  !I14:  Old  Dominion 
Copper  Mining  &  Smelting  Co.  v. 
Lewisohn,  170  Fed.  745:  Pa.  Steel 
Co.  v.  \.  V.  City   Ry.  Co..  190  Fed- 


734 


AMENDMENT. 


[§   215 


an  amended  bill  which  omitted  one  of  the  original  parties  was 
filed  bj  leave  of  the  court,  it  will  be  presumed  that  leave  to 
dismiss  as  to  snch  party  was  granted  when  there  is  nothing 
in  the  record  to  show  the  contrary.24  An  appellate  court  may,25 
but  rarely26  will,  reverse  a  decree  for  an  error  in  refusing- 
permission  to  make  an  amendment;  never  unless  the  proposed 
amendment  appears  upon  the  record,27  but  a  refusal  to  allow 
an  amendment,  after  final  decree,  will  rarely,  if  ever,  be  re- 
viewed by  an  appellate  court.28  It  has  been  said  that  a  decree 
will  not  be  reversed  for  an  error  in  allowing  amendments,29 
A  Federal  court  of  review  will  not  allow  a  pleading  to  be 
amended  upon  writ  of  error  or  appeal  thereto,30  except  by  con- 
sent.31 An  appellate  court  may,  however,  especially  where 
the  question  of  jurisdiction  was  not  raised  below,  when  re- 
versing a  judgment  direct  that  the  plaintiff  be  permitted  to 
amend.32  In  one  case  it  has  been  held,  that  upon  such  a 
reversal  the  issues  may  be  narrowed  to  the  question  of  the 
jurisdiction  of  the  court.33  But  another  held:  that  a  Circuit 
Court  of  Appeals  had  no  power,  upon  the  motion  of  the  appel- 
lant, to  dismiss  an  appeal  and  remand  the  case  to  the  court 
below,  with  directions  to  permit  the  amendment  of  a  pleading 
to  insert  facts  inadvertently  omitted,  when  the  omission  was 


002;  McEldowney  v.  Card,  193  Fed. 
475. 

24Hicklin  v.  Marco,  C.  C.  A.,  56 
Fed.  549. 

25Ridie  v.  Whitehill,  135  U.  S. 
021.  627.  640.  34  L.  ed.  282,  285. 
289;  Lant  v.  Manley,  75  Fed.  634: 
1  .  S.  v.  Lehigh  Valley  R.  E.  Co.,  220 
Ij    S.  257.  o^  L.  ed.  458. 

26  Mer.  Nat.  Bank  v.  Carpenter, 
101  V.  S.  507.  568,  25  L.  ed.  815, 
Sir,:  Hudson  v.  Randolph,  C.  C.  A., 
■66  Fed.  216;  McKem'y  v.  Supreme 
Lodge  A.  O.  U.  W.,  C.  C.  A.,  180 
Fed.  961  ;  Brookfield  v.  Novelty 
Glass  Mfg.  Co.,  C.  C.  A.,  170  Fed. 
1)60. 

27  National  Bank  v.  Carpenter, 
101  U.  S.  567,  568,  25  L.  ed.  815, 
816. 


28  Brown  v.  Schleier,  194  U.  S.  18, 
4S  L.  ed.  857. 

29  Chapman  v.  Barney,  129  U.  S. 
077.   681,   32  L.  ed.  800,  801. 

30  Pacific  R.  Co.  of  Mo.  v.  Ketch- 
urn.  95  U.  S.  1,  24  L.  ed.  347: 
Yeandle  v.  Pa.  R.  Co.,  C.  C.  A.,  169 
Fed.  938.  But  see  Williams  v. 
Molther,  C.  C.  A..  198  Fed.  460. 

31  Kennedy  v.  Georgia  State  Bank, 
8  How.  586,  12  L.  ed.  1209. 

32  Puget  Sound  Nav.  Co.  v.  Lav- 
endar,  C.  C.  A.,  156  Fed.  361. 

33  Grand  Trunk  Western  Ry.  Co. 
v.  Reddick,  C.  C.  A.,  160  Fed.  898, 
which  is  contrary  to  the  usual  prac- 
tice. 


§    215]  PKACTICE.  735 

not  known  to  the  appellant  until  after  the  appeal  was  taken.34 
It  was  held  that  a  Circuit  Court  had  power  to  allow  an 
amendment  when  hearing  an  appeal  from  a  District  Court.35 
A  defendant  cannot  require  the  complainant  to  amend  his  bill.36 

34  Strand  v.  Griffith,  C.  C.  A.,  135  36  North    Chicago    St.    R.    Co.    v. 
Fed.  739.                                                         Chicago    Union    Traction    Co.,    150 

35  Warren  v.  Moody,  9  Fed.  673.       Fed.  612. 


CHAPTER  XIII. 

ABATEMENT,  REVIVOR  AND  SUPPLEMENT  AT  LAW  AND  IN  EQUITY. 

§  216.  Abatement.  If  any  event  happens  after  the  filing 
of  a  bill  in  equity  which  makes  it  necessary  to  bring-  in  a  new 
party,  either  plaintiff  or  defendant,  in  order  to  obtain  a  com- 
plete or  satisfactory  determination  of  the  controversy,  the 
suit  will  either  abate  or  become  defective.1  The  abatement  or 
defect  must  be  remedied  by  the  filing  of  a  bill  of  revivor,  a 
bill  in  the  nature  of  a  bill  of  revivor,  a  supplemental  bill, 
a  bill  in  the  nature  of  a  supplemental  bill,  or  a  bill  of  re- 
vivor and  supplement,2  or  perhaps  by  motion  upon  affidavit 
without  such  a  pleading.3  An  abatement  takes  place  by  the 
death  of  one  of  the  parties,  or,  where  a  married  woman  is 
under  a  disability,  by  the  marriage  of  a  female  plaintiff.4 
An  action  entirely  abates  by  the  death  of  any  of  the  plain- 
tiff:5 unless  his  interest  therein  wholly  ceases  by  his  death,6" 
or  survives  -to  another  party  to  the  suit,7  or  he  has  been  previ- 
ously discharged  by  a  decree  in  an  interpleader8  suit,  or  a  suit 
in  the  nature  of  an  interpleader;  when  it  does  not.  Formerly 
a  suit  abated  by  the  marriage  of  a  female  plaintiff;9  but  it 
may  be  doubted  whether  this  rule  would  be  followed  where  a 
married  woman  has  the  same  power  over  her  property  as  if 
she  were  single.10  By  the  marriage  of  a  female  defendant,  a 
suit  never   abated,   though  her  husband  had   to   be   named   in 


§  210.     iMitford's  PI.,  ch.  1,  §  3. 

2  Mitford's  PI.,  ch.  1,  §  3.  See 
infra,  §  220,  for  proceedings  at  com- 
mon law. 

3Kf|.  Rule  45.  But  see*Eq.  Rule 
::.-):    infra,  §  221. 

4  Mitford's   PI.,  ch.  1.  §  3. 

5  Mitford's  PI.,  ch.  1,  §  3;  Story's 
F.q.  PI.,  §  354. 

6Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1008;    .Mitford's  PI.,  ch.  1,  §  3. 


7  Fa  11  owes  v.  Williamson,  11  Ves. 
309;  Boddy  v.  Kent,  1  Mer.  3f>4; 
Fisher  v.  Rutherford,  Baldw.  188; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1699. 

8  Anon.,  1  Vern.  351;  Jennings  v. 
Nugent,  1  Molloy,  134;  Daniell's 
Ch.  Pr.   (2d  Am.  ed.)    1765. 

9  Mitford's  PI.,  ch.  1,  §  3;  Story's 
Eq.  PL,  §  354. 

lOLorillard  v.  Standard  Oil  Co., 
2  Fed.  902. 


736 


§  216] 


ABATEMENT. 


737 


all  subsequent  proceedings.11  When  the  husband  of  a  female 
plaintiff  died,  by  the  former  practice  she  could  at  her  option 
continue  the  suit  without  filing  anv  bill  of  revivor ;  but  if 
she  did  not,  it  was  considered  abated  and  she  was  not  liable  for 
the  costs.12  Before  the  hearing  of  a  suit,13  it  abates  upon  the 
death  of  a  defendant  who  has  appeared  so  far  as  proceedings 
against  him  or  his  interest  are  concerned,  and  if  he  were  an  in- 
dispensable party  to  a  decree  all  proceedings  must  be  suspended 
till  his  representatives  have  been  brought  in.14  If,  however, 
his  interest  wholly  ceases  by  his  death,  or  wholly  survives  to  one 
of  the  other  parties,  no  revivor  will  be  necessary.15  A  suit 
abates  by  the  death  of  a  member  of  a  firm  during  a  suit  against 
it.16  It  has  been  held  that  the  death  of  a  defendant  before  ap- 
pearance does  not  abate  the  suit;  for,  according  to  the  former 
practice,  till  his  appearance,  or  a  decree  taken  against  him  pro 
confesso,  there  was  no  cause  against  him ;  but  a  bill  to  be  filed 
against  his  representative,  which  was  an  original  bill  as  far  as 
respected  the  defendant,  but  a  supplemental  bill  with  respect 
to  the  suit.17 

The  Revised  Statutes  further  provide  that  if  there  are  two 
or  more  plaintiffs  or  defendants  in  a  suit,  where  the  cause  of 
action  survives  to  the  surviving  plaintiff  or  against  the  surviving 
defendant,  and  one  or  more  of  them  dies,  the  suit  and  action 
do  not  thereby  abate ;  but  such  death  must  be  suggested  in  the 
record,  and  the  action  thereupon  proceed  at  the  suit  of  the  sur- 
viving plaintiff  against  the  surviving  defendant.18  This  applies 
to  a  suit  for  the  infringement  of  a  trade-mark,  since  that  is  a 


11  Mitfovd's  PI.,  ch.  1,  §  3:  Story's 
Eq.  PI.,  §  354.  A  suit  does  not 
abate  by  the  marriage  of  a  male  de- 
fendant, although  it  affects  real  es- 
tate. Clark  v.  Hall,  7  Paige  (X. 
Y.)j  382.  The  coming  of  age  of  an 
infant  party  does  not  abate  the  suit 
or  render  it  defective  unless  his  in- 
terest is  thereby  charged.  Camp- 
bell v.  Bowne,  5  Paige    (X.  Y.),  34. 

u.Mitford'a  PL,  ch.  1,  §  3. 

I*  Child's  v.  Ferguson,  C.  C.  A., 
1ST   Fed.  705. 

14  Story's  Eq:  PI.,  §  369;  Wright 
v    Phipps,  58  Fed.  552. 

Fed.  Pracx  Vol.  I.— 47. 


iSMitford's  PI.,  ch.  1,  §  3;  Dan- 
iell's  Ch.  Pr.  (2d  Am.  ed.)  1698, 
1099;   Story's  Eq.  PL,  §  357. 

16  Wilson  v.  Seligman  (U.  S.  C. 
C.  S.  D.  X.  Y.  1880),  10  Rep.  651. 
But  see  II.  S.  R.  S.,  §  956,  cited 
infra. 

"Shadwell,  V.  C,  in  Crowfoot  v. 
Mander,  9  Sim.  39(1.  See  U.  S.  v. 
Fields,  4  Blatchf.  326. 

18  U.  S.  P.  S.,  §  956.  This  statute 
is  substantially  a  copy  of  the  act 
of  8  &  9  W.  III.,  en.  I,  §  7.  See 
Allen  v.  Fairbanks,  40  Fed.  188. 


738  ABATEMENT  AND  KEVIVOE.  [§  216 

tort  for  which  the  defendants  are  jointly  and  severally  liable.19 
It  has  been  held  that,  where  one  of  several  obligees  of  a  nego- 
tiable bond  dies  pending  an  action  to  collect  the  same,  the  ac- 
tion may  be  continued  in  the  name  of  the  survivors,  who,  if 
they  recover,  are  entitled  to  the  whole  sum  due  under  the 
obligation,  and  upon  its  receipt  will  hold  that  part  of  the  re- 
covery, to  which  the  decedent  would  have  been  entitled  had  he 
lived,  in  trust  for  the  representatives  of  the  latter;  that  the 
presence  in  the  action  of  the  personal  representatives  of  such 
deceased  co-obligee  after  his  death  is  erroneous,  but  a  harmless 
error;  that  no  formal  order  of  revivor  is  necessary  in  such  a 
case,  but  that  a  suggestion  of  the  death  of  one  of  the  plaintiffs, 
made  upon  the  record  by  either  the  plaintiffs  or  defendants, 
is  sufficient;  and  that  the  Circuit  Court  of  Appeals,  when  re- 
versing a  judgment  in  favor  of  a  surviving  plaintiff  and  the 
representatives  of  the  other,  may  direct  that,  upon  the  making 
of  the  proper  suggestion  and  the  striking  out  of  the  names  of 
the  personal  representatives,  a  new  judgment  be  entered  in 
favor  of  the  remaining  plaintiffs,  as  they  then  appear  of  record, 
for  the  amount  of  the  principal  with  interest.20  This  statute 
applies  to  writs  of  error21  and  appeals.22  These  statutes  do  not 
apply  to  real  actions.23  Real  actions  cannot  be  revived,24  unless 
the  State  statute  so  provides.25  Independently  of  statute  a  suit 
to  enjoin  an  official  act  abates  when  the  defendant  ceases  to  be 
a  public  officer,  and  cannot  ordinarily  be  revived  against  his 
successor.26  "!No  suit,  action,  or  other  proceeding  lawfully 
commenced  by  or  against  the  head  of  any  Department  or  Bureau 
or  other  officer  of  the  United  States  in  his  official  capacity,  or  in 
relation  to  the  discharge  of  his  official  duties,  shall  abate  by 
reason  of  his  death,  or  the  expiration  of  his  term  of  office,  or 

19  Northwestern     Consol.    Milling       530,  5  L.  ed.  515;  Green  v.  Watkins, 
Co.   v.  William   Callam  &   Son,   177       6  Wheat.  260,  5  L.  ed.  25G. 

Fed.  786.  24  Macker    v.    Thomas,    7    Wheat. 

20  Thomas  v.  Green  County,  C.  C.       530,  29   L.  ed.   391  ;    Green  v.  Wat- 
A..  159  Fed.  339.  kins,  6  Wheat.  260,  5  L.  ed.  256. 

ZlMcKinney    v.    Carroll,    12    Pet.  25  McArthur     v.     Williamson,     45 

66,  9  L.  ed.  1002;   Classe  v.  Rippon,  Fed.   154. 

1  B.  &  Aid   586.  26  Warner  V.  S.  Co.  v.  Smith,  165 

22  Moses    v.    Wooster,    115    U.    S.  U.    S.    2S,   41    L.   ed.    621;    State  of 
285.  29  L.  ed.  391.  Florida    v.    Croom,    226    U.    S.    309, 

23  Macker    v.    Thomas,    7    Wheat.  57  L.  ed.  — . 


§   21GJ 


ABATEMENT. 


i  •) 


^9 


his  retirement,  or  resignation,  or  removal  from  office,  but,  in 
such  event,  the  court,  '  on  motion  or  supplemental  petition 
filed,  at  any  time  within  twelve  months  thereafter,  showing  a 
necessity  for  the  survival  thereof  to  obtain  a  settlement  of  the 
questions  involved,  may  allow  the  same  to  be  maintained  by  or 
against  his  successor  in  office,  and  the  court  may  make  such  or- 
der as  shall  be  equitable  for  the  payment  of  costs."  27  If  the 
cause  of  action  be  one  created  by  a  Federal  statute,  its  survival 
or  abatement  is  not  affected  by  State  statutes  or  decisions.28 
The  State  statute,  which  requires  a  claim  to  be  presented  to 
an  administrator  before  revivor  does  not  apply  to  an  action 
upon  a  bond  given  to  the  United  States.29  A  qui  tarn  action 
to  recover  a  penalty  under  a  statute  of  the  United  States 
abates  by  the  death  of  the  defendant,  although  the  statutes  of 
the  State  where  the  case  is  pending  authorize  the  revivor  of 
actions  to  recover  penalties.30  but  an  action  to  recover  dam- 
ages for  a  violation  of  the  Interstate  Commerce  law31  may  be 
revived  by  the  plaintiff's  executors32  and  does  not  abate  by  a 
judicial  sale  of  the  plaintiff's  property.33  An  action  to  enforce 
a  forfeiture  abates  unless  the  acts  complained  of  were  divisible 
and  the  wrongdoer's  estate  has  derived  a  benefit  therefrom.34 
It  has  been  held  that  a  judgment  of  conviction  which  imposes 
a  fine,  abates  upon  the  defendant's  death  and  is  not  enforceable 
against  his  personal  representatives.35  An  action  for  the  in- 
fringement of  a  patent  survives  to  the  representatives  of  the 
patentee,36  and  against  the  representatives  of  the  infringer.37 
It  has  been  held  that  the  death  of  a  sole  defendant  to  a  suit  for 


27  Act  of  February  8th,  1899,  30 
St.  at  L.  822. 

28  Schreiber  v.  Sharpless,  110  U. 
S.  76,  28  L.  ed.  65 ;  Patton  v.  Brady, 
184  U.  S.  608,  612.  46  L.  ed.  713, 
710;  Iron  Gate  Bank  v.  Brady,  184 
U.  S.  665,  40  L.  ed.  739;  May  v. 
Logan  County,  30  Fed.  250. 

29  Pond  v.  U.  S.,  C.  C.  A.,  Ill  Fed. 
989,  49  C.  C.  A.  582. 

30  Schreiber  v.  Sharpless,  110  U. 
S.  76,  28  L.  ed.  65. 

31  Act  of  Feb.  4.  1887,  c.  104,  §  9, 
24  Stat.  382  (U.  S.  Comp.  St.  1901, 
p.  3159). 


32  Langdon  v.  Pennsylvania  R. 
Co.,  194  Fed.  480. 

33  Pennsylvania  R.  Co.  v.  Interna- 
tional Coal  Mining  Co.,  C.  C.  A., 
173  Fed.  1. 

34  U.  S.  v.  De  Goer,  38  Fed.  80; 
U.  S.  v.  Riley,  104  Fed.  275. 

35  U.  S.  v.  Pomeroy.  152  Fed.  279. 

36  May  v.  Logan  County,  30  Fed. 
250;  Illinois  Cent.  R.  Co.  v.  Turrill, 
110  U.  S.  301,  28  L.  ed.  154. 

37  Ibid.;  Head  v.  Porter,  70  Fed. 
498:  Hohorst  v.  Howard,  37  Fed. 
97:  Moses  v.  Wooster,  115  U.  S.  285, 
29  L.  ed.  391. 


740 


ABATEMENT    AND    REVIVOR. 


[§    216 


an  injunction  against  the  infringement  of  a  patent  and  for  an 
accounting,  when  it  occurs  before  a'  decree  for  an  account, 
abates  and  terminates  so  much  of  the  suit  as  seeks  an  injunc- 
tion, so  that  it  cannot  be  revived  against  his  executor,  unless  it 
be  shown  that  the  latter  continues  the  infringement;38  but  that 
the  suit  may  be  continued  against  the  personal  representative 
for  an  accounting  of  profits  and  for  damages.39  After  an  inter- 
locutory decree  for  an  accounting,  such  a  suit  may  be  revived 
against  the  personal  representatives  of  the   deceased   defend- 


ant 


40 


The  survivability  of  a  cause  of  action,  if  it  be  one  arising  un- 
der the  statute  or,  it  seems,  the  common  law  of  the  State  where 
the  case  is  pending,  depends  upon  the  law  of  that  State ; 41  ex- 
cept, perhaps,  when  it  is  originally  brought  in  the  Federal 
court  and  arises  under  some  rule  of  general  law,  recognized  in 
the  courts  of  the  Union.42  If  the  action  is  transitory  in  its 
nature,  the  survival  of  the  right  to  sue  depends  upon  the  law 
of  the  State  where  the  suit  is  brought;  not  upon  that  where 
the  cause  of  action  arose.43  A  State  statute  which  allows  an 
executor  or  administrator  to  revive  an  action  for  personal  in- 
juries will  be  followed,  as  the  law  of  the  forum,  by  the  Fed- 
eral courts  there  held,  although  there  was  no  such  statute  where 
the  accident  occurred.44  A  State  statute  was  followed  which 
permitted  an  administrator  duly  appointed  and  qualified  to  be 
substituted  as  plaintiff  in  a  suit  brought  by  a  person  claiming 
to  be  the  personal  representative  of  the  same  decedent  who  had 
never  qualified  as  such.45     Unless  there  be  some  clause  in  its 


38  Draper  v.  Hudson.  1  Holmes, 
208;  Walker  on  Patents,  §  700. 

39  Kirk  v.  Du  Bois,  28  Fed.  460; 
Hohorst  v.  Howard,  37  Fed.  97; 
I  ake  Superior  I.  Co.  v.  Brown,  B. 
&  Co.,  44  Fed.  539;  Head  v.  Porter, 
70   Fed.  498;    Atterburv  v.  Gill,   3  3 


Off. 

Gaz.    27G; 

Smith 

v. 

Baker,    1 

Ban. 

&  A.  117; 

i  Childs 

v. 

Ferguson, 

C.  C 

.  A.,  1S1  Fed.  795. 

40 

Atterburv 

v.  Gill, 

13 

Off.  Gaz. 

276. 

41  Warren  v.  Furstenheim,  35  Fed. 
691;  Witters  v.  Foster,  26  Fed.  737; 
Henshaw  v.  Miller,  17  How.  212,  15 


L.  ed.  222;  Hatfield  v.  Bushnell,  1 
Blatchf.  393;  Trigg  v.  Conway. 
Hempst.  711;  Martin  v.  Wabash  R. 
Co.,  C.  C.  A.,  142  Fed.  650. 

«  Baltimore  k  O.  R.  R.  Co.  v.  Joy, 
173  U.  S.  226,  229,  43  L.  ed.  077, 
678. 

43  Martin  v.  Wabash  R.  Co.,  C.  C. 
A.,  ]42  Fed.  650.  Contra,  Strat- 
ton's  Independence,  L'd  v.  Dines,  126 
Fed.  968. 

44  Baltimore  &  O.  R.  Co.  v.  Joy, 
173  U.  S.  226,  43  L.  ed.  677. 

45  Person  v.  Fidelity  &  Cas.  Co., 
C.  C.  A.,  92  Fed.  965. 


§    21G]  ABATEMENT.  741 

charter  to  the  contrary,  a  suit  by  or  against  a  corporation  or- 
dinarily abates  by  the  dissolution  of  the  corporation;46  but 
it  has  been  held  that  the  entrance  into  liquidation  and  the  clos- 
ing of  a  business  of  a  national  banking  association  does  not 
abate  a  suit  brought  in  its  name.47  A  State  statute  which  pro- 
vided that  a  suit  against  a  corporation  shall  not  abate  upon  the 
dissolution  of  the  defendant  was  held  not  to  apply  to  a  foreign 
corporation ;  and  a  judgment  of  the  State  court  in  such  a  case 
was  held  by  the  Federal  court  to  be  void.48  It  seems  that  any 
step  in  the  cause  taken  by  the  surviving  party  after  the  death 
of  one  or  more  of  his  opponents,  is  a  waiver  of  his  right  to 
object  that  the  case  has  not  been  revived.  Thus,  after  a  decree 
has  been  reversed  upon  appeal,  and  the  cause  sent  back  with  a 
special  mandate  directing  the  further  proceedings  to  be  taken, 
or  affirmed  upon  appeal  and  sent  back  with  a  mandate  directing 
its  enforcement,  it  is  too  late  to  claim  for  the  first  time  that  the 
suit  has  abated  by  the  death  of  the  complainant  before  he  en- 
try of  the  decree  from  which  the  appeal  was  taken.49  An  order 
denying  a  motion  to  dismiss  an  action  upon  the  ground  that  it 
had  abated  by  the  death  of  the  plaintiff  is  reviewable  on  a  writ 
of  error  to  the  final  judgment,50  The  plaintiff  cannot  describe 
his  action  as  in  tort  in  order  to  obtain  jurisdiction  for  the  Fed- 
eral court,  and  then  describe  it  as  in  contract  in  order  to  pre- 
vent its  abatement.51 

46  National  Bank  v.  Colby,  21  701.  The  appointment  of  a  receiver 
Wall.  609,  22  L.  ed.  687;  Greeley  does  not  abate  a  suit  against  a  na- 
v.  Smith,  3  Story,  658;  Mumma  v.  tional  bank.  Chemical  Nat.  Bank  v. 
Potomac  Co.,  8  Pet.  281,  22  I/,  ed.  Hartford  Deposit  Co.,  161  U.  S.  1, 
687.     But   see   Lake   Sup.   I.   Co.   v.  40  L.  ed.  595. 

Brown,  B.  &  Co.,  44  Fed.  539.    As  to  48  Marion  Phosphate  Co.  v.  Perry, 

municipal  corporations,  Hemingway  C.  C.  A.,  33  L.R.A.  252,  74  Fed.  425. 

v.  Stansell,  106  U.  S.  399,  27  L.  ed.  49  Ex  parte  Sory,  12  Pet.  339,  342, 

245;  Grantland  v.  Memphis,  12  Fed'.  9   L.  ed.   1108.   1110;    Lake   Sup.   I. 

287;  as  to  the  effect  of  a  consolida-  Co.  \\  Brown.  B.  &  Co.,  44  Fed.  539 ; 

tion  of  two  corporations,  Edison  El.  McNeil  v.  McNeil,  C.  C.  A.,  170  Fed. 

L.  Co.  v.  Westinghouse,  34  Fed.  232;  289,   (the  argument  of  an  appeal  by 

as  to   the  effect  of  a   State  statute  the  administrator). 

upon    foreign    corporations,    Marion  50  Henderson    v.    Henshall,    C.    C. 

Phosphate  Co.  v.  Perry,  C.  C.  A.,  33  A.,  54  Fed.  320. 

L.R.A.  252.  74  Fed.  425.  51  iron   Gate    Hank  v.   Brady,   184 

47  National     Bank     v.     Insurance  U.  S.  665,  46  L.  ed.  739. 
Co.,  104  U.  S.  54,  72,  26  L.  ed.  693, 


742 


ABATEMENT    AND    REVIVOR. 


[§  21' 


§  217.  Effect  of  abatement.  "An  abatement,  in  the  sense 
of  the  common  law,  is  an  entire  overthrow  or  destruction  of  the 
suit,  so  that  it  is  quashed  and  ended.  But  in  the  sense  of  courts 
of  equity,  an  abatement  signifies  only  a  present  suspension  of 
all  proceedings  in  the  suit,  from  the  want  of  proper  parties 
capable  of  proceeding  therein.  At  the  common  law,  a  suit- 
when  abated,  is  absolutely  dead.  But  in  equity,  a  suit,  when 
abated,  is  (if  such  an  expression  be  allowable)  merely  in  a 
state  of  suspended  animation,  and  it  may  be  revived."  1  Upon 
the  total  abatement  of  a  suit  the  cause  is  completely  suspended 
while  the  abatement  continues ;  and,  in  general,  all  orders  made 
pending  such  abatement  will  be  considered  nugatory  and  may 
be  discharged.2  Applications  may,  however,  be  made  by  parties 
affected  thereby,  to  discharge  process  of  contempt  issued  or 
executed  pending  the  statement.3  Applications  have,  more- 
over, been  granted  during  an  abatement  for  the  payment  of 
money  out  of  court,  when  the  right  thereto  had  been  previously 
established;4  for  the  preservation  of  the  property  in  dispute;5 
for  the  punishment  of  a  party  for  breach  of  an  injunction ; 6 
and  to  set  aside  irregular  proceedings  pending  the  abatement.7 
So,  too,  a  decree  previously  made  could  be  enrolled ; 8  and  it  has 
been  held  in  England  that  depositions  might  be  taken  under  a 
commission  previously  issued.9  Orders  previously  made  con- 
tinue in  force  until  discharged.10  But  the  time  given  a  party 
within  which  to  do  a  certain  act  is  always  suspended  by  an 
abatement.11  Where  a  preliminary  injunction  has  been  pre- 
viously granted,  the  court  may  issue  an  order  requiring  that 


§  237.  1  Story's  Eq.  PI.,  §  354. 
See  also  Hoxie  v.  Carr,  1  Siimn. 
173,  178:  Melius  v.  Thompson,  1 
Clin".   125,  129. 

2Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1714:  Griswold  v.  Hill,  1  Paine,  483. 

3BanielPs  Ch.  Pr.  (2d  Am.,  ed.) 
1715. 

4  Finch  v.  Lord  ^Yinchelsea,  1  Eq. 
Cas.  Abr.  2;  Rovmdell  v.  Currer,  6 
Ves.  250;  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)  1715.  See  YVharam  v.  Brough- 
ton,  1  Ves.  Sr.  185. 

5  Washington  Ins.  Co.  v.  Slee,  2 
Paige    (N.  Y.),  365,  368. 


Leonard,     10 
(2d  Am.  ed.) 


6Hawley  v.  Bennett,  4  Paige  (N. 
Y.),  163. 

7  Quackenbush     v. 
Paige   (N.  Y.),  131. 

8  Daniell's  Ch.  Pr. 
1715. 

9  Thompson  v.  Took,  1  Dick.  115: 
Peters  v.  Robinson,  1  Dick.  116; 
Sinclair 'v.  James,  1  Dick.  277. 

10  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1716;  Lee  v.  Lee,  1  Hare,  622;  Haw- 
ley  v.  Bennett,  4  Paige  (N.  Y.),  163. 

11  Gregson  v.  Oswald,  1  Cox,  Eq. 
343. 


217] 


EFFECT  OF  ABATEMENT. 


'43 


the  representatives  of  a  deceased  plaintiff  revive  within  a  certain 
time,  usually  a  fortnight  after  notice,  or  that  the  injunction  be 
dissolved.12    No  such  order  will  be  granted  after  a  decree  for  a 
perpetual  injunction;  for  that  "would  be  in  effect  decreeing 
a  perpetual  suit."  13     The  power  of  the  court  to  make  an  order 
that  the  representatives  of  a  deceased  plaintiff  revive  within 
a  certain  limited  time  after  notice  to  them,  or  that  the  bill  be 
dismissed,  is  doubtful.14     Where  the  abatement  is  partial,   as 
where  it  is  caused  by  the  death  of  a  defendant,  it  prevents 
those  proceedings  only  by  which  his  interest  may  be  affected.15 
Thus,  if  there  be  a  decree  against  trustees  and  the  beneficiary 
of  their  trust  for  a  conveyance,  and  the  beneficiary  die,  the 
trustees  may  still  be  obliged  to  convey ; 16  and,  after  the  death 
of  one  defendant,  process  of  contempt  may  be  issued  and  execu- 
ted against  the  others.17     After  its  abatement  by  the  death  of 
the  owner  of  the  equity  of  redemption,  a  foreclosure  suit  can- 
not be  remanded  before  its  revivor.18    It  has  also  been  held  that 
the  death  of  a  defendant  after  hearing  but  before  a  decree  does 
not  necessarily  prevent  judgment.19  which  should  then  be  en- 
tered as  of  the  date  of  the  hearing,  nunc  pro  tunc,  and  that,  -if 
practicable,  a  decree  made  before  a  defendant's  death,  for  ex- 
ample, a  decree  for  a  sale,  may  be  enforced  without  revivor.20 
But  where  the  defendant  died  after  his  demurrer  had  been 
sustained  and  the  time  of  the  complainant  to  amend  had  ex- 
pired, it  was  held  that  the  court  could  not  without  revivor 


12  Jones  v.  Massey,  Brown  v.  War- 
ner, Turner  v.  Cole,  all  quoted  in 
Chowick  v.  Dimes,  3  Beav.  290,  292, 
293;  Chester  v.  Life  Ass'n  of  Amer- 
ica, 4  Fed.  487. 

13  Askew  v.  Townsend,  2  Dick. 
471. 

14  Compare  dictum  of  Judge  Story 
in  Iloxie  v.  Carr,  1  Sumn.  173,  178, 
and  the  case  of  Chowick  v.  Dimes, 
3  Beav.  290,  where  Lord  Langdale. 
M.  R.,  granted  such  an  order,  with 
that  of  Lee  v.  Lee,  1  Hare,  017, 
where  Vice-Chancellor  Wigram  held 
t hat  the  court  had  no  power  to 
make  one. 


15Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1716;  Finch  v.  Lord  Winchelsea,  1 
Eq.  Cas.  Abr.  2. 

is  Finch  v.  Lord  Winchelsea,  1 
Eq.  Cas.  Abr.  2;  Daniell's  Ch.  Pr. 
(2d  Am.  ed.)    1710. 

"Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1716. 

18  Wright  v.  Phipps,  58  Fed.  552. 

19  Davies  v.  Davies,  9  Ves.  461 ; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)   1717. 

20  Whiting  v.  Bank  of  U.  S.,  13 
Pet.  6,  10  L.  ed.  33. 


744 


ABATEMENT  AND  EEVIVOR. 


[§  218 


rentier  judgment  of  dismissal  nunc  pro  tunc  as  of  the  clay  fol- 
lowing the  expiration  of  the  time  allowed  for  amendment.21 

§  218.  When  a  suit  may  be  revived  and  effect  of  re- 
vivor. A  suit  which  has  abated  may  generally  be  revived  when 
anything  further  remains  to  be  done  therein.1  But  the  old  prac- 
tice did  not  permit  a  suit  to  be  revived  merely  for  costs  which 
were  untaxed,  and  had  not  been  previously  directed  to  be  paid 
out  of  a  particular  estate  or  fund,  nor  decreed  against  an  execu- 
tor out  of  assets.2  Nor  can  a  bill  of  revivor  be  brought  upon  a 
bill  filed  merely  for  discovery,  after  the  discovery  required 
thereby  has  been  obtained.3  The  time  within  which  an  action 
to  enforce  a  cause  of  action  at  common  law  not  founded  upon  a 
statute  of  the  United  States  may  be  revived,  depends  upon  the 
State  practice4  or  the  State  Statute  of  Limitations;5  which, 
however,  do  not  affect  the  United  States.6  The  State  Statute 
of  Limitations  has  been  held  to  be  a  bar  to  an  application  to 
revive  an  action  by  a  receiver  of  a  national  banking  association 
to  collect  an  assessment  from  a  stockholder.7  In  equity  the 
running  of  the  statute  of  limitations,  State  or  Federal  as  the 
case  may  be,  after  the  time  when  a  person  became  entitled  to  re- 
vive is  in  most  cases,  except  after  a  decree  for  an  account,8  a  de- 
fense and  bar  to  a  bill  of  revivor.9     A  suit  cannot  be  revived 


21  McNeil  v.  McNeil,  C  C.  A.,  170 
Ted.  289. 

§  218.  1  Gilbert's  Forum  Roma- 
num,  181 ;  Johnson  v.  Peck,  2  Ves. 
Sen.  465;  Fitzpatrick  v.  Domingo, 
14  Fed.  216;  Daniell's  Ch.  Pr.  (2d 
Am.  ed.)  1G94.  See  Warner  V.  S. 
Co.  v.  Smith,  165  U.  S.  28,  41  L.  ed. 
621,  and  supra,  §  216. 

2  Daniell's   Ch.  Pr.    (2d  Am.  ed.) 
1694-1697;    Story's  Eq.  PI.,   §   371 
Blower    v.    Morrets,    3    Atk.    772 
Kemp    v.     Mackrell,     3    Atk.     812 
Travis  v.  Waters,  1  J.  Ch.   (X.  Y.) 
85. 

3Horsburg  v.  Baker,   1   Pet.  232, 
7  L.  ed.  125. 

4  Goodyear  Dental.  Vulcanite  Co. 
v.  White,  46  Fed.  278. 

5  Browne  v.  Chavez.  181  U.  S.  68, 
45   L.  ed.   752;    Butler  v.  Poole,   44 


Fed.  586;  Barker  v.  Ladd,  3  Sawyer, 
44;  Price  v.  Yates,  19  Alb.  L.  J. 
295;  Goodyear  Dental  Co.  v.  White, 
46  Fed.  278;  Spaeth  v.  Sells,  177 
Fed.  797,  holding  that  under  Ohio 
R.  S.  §§  5150,  5157,  the  final  order 
of  revivor  must  be  made  within  one 
year  and  that  the  obtaining  of  the 
conditional  order  within  that  time 
is  insufficient. 

6  U.  S.  v.  Houston,  48  Fed.  207. 

7  Butler  v.  Poole,  44  Fed.  586. 

8  Hollingshead's  Case,  1  P.  Wms. 
742;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1711. 

9  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1710;  Coit  v.  Campbell,  82  N.  Y. 
509;  Perry  v.  Jenkins,  1  Myl.  &  Cr. 
122;  Mason  v.  Hartford,  P.  &  F. 
By.  Co.,  19  Fed.  53,  56;  Story's  Eq. 
PL,   §   831.     A  bill   of   revivor  was 


219] 


AVIK)    MAY    REVIVE    SUIT. 


745 


seven  years  after  its  dismissal  for  a  defect  of  parties  caused  by 
a  failure  to  revive.10  Where  the  abatement  is  by  the  death  or 
marriage  of  a  plaintiff,  an  order  to  revive  the  suit  places  it  and 
all  proceedings  in  it  in  precisely  "the  same  plight,  state,  and 
condition  that  the  same  were  in  at  the  time  when  the  abatement 
took  place."  n  The  new  plaintiff  may  then  take  the  same  pro- 
ceedings that  the  original  plaintiff  might  have  done.12  Thus, 
the  new  plaintiff  may  prosecute  process  of  contempt  against  the 
defendant,  taking  it  up  where  it  stood  at  the  abatement;  and 
if  a  process  has  been  previously  issued  it  will  be  revived  with 
the  revivor  of  the  suit.13  But  where  the  abatement  is  caused 
by  the  death  of  a  defendant,  "the  process,  being  personal,  can- 
not be  revived." 14  In  general,  however,  an  order  to  revive 
against  the  representatives  of  a  deceased  defendant,  will  place 
the  suit  as  fully  in  the  same  position  with  regard  to  such  repre- 
sentatives as  can  be  done  with  reference  to  the  change  of  the 
individuals  before  the  court.15  After  revivor  testimony  pre- 
viously taken  can  be  used.16 

§  219.  Who  may  revive  a  suit.  It  is  generally  necessary, 
in  order  to  entitle  one  to  revive,  that  there  should  be  a  privity 
in  representation  between  him  and  the  party  whose  death  caused 
the  abatement.  Therefore,  upon  the  death  of  one  suing  in  a 
representative  capacity  the  defect  can  usually  be  remedied 
only  by  a  supplemental  bill,  and  not  by  a  bill  of  revivor.1  It 
was  held,  however,  that  upon  the  death  of  an  administrator, 
the  administrator  de  bonis  non  might  file  a  bill  of  revivor, 
"though  there  is  no  actual  privity  between  him  and  the  original 


stricken  from  the  file  when  filed 
twelve  years  after  the  delivery  of 
an  opinion  dismissing  the  original 
bill,  although  no  decree  upon  the 
opinion  was  ever  entered.  Hubbell 
v.  Lankenan.  63  Fed.  881.  Contra, 
Miller  v.  Wattier,  165  Fed.  359. 
See,  also,  Schmertz  Wire-Glass  Co. 
v.  Pittsburgh  Plate-Glass  Co.,  16S 
Fed.  73,  a  suit  to  compel  the  issue 
of  a  patent  when  the  adverse  party 
acquiesced  in  the  bill. 

WHouth   v.   Owens,   30   Fed.   910. 

ll  Gregson  v.  Oswald,  1  Cox  Eq. 
344. 


l2Vattier  v.  Hinde,  7  Pet.  252, 
206;  Philips  v.  Derbie,  1  Dick.  98: 
Hyde  v.  Forster,  1  Dick.  132:  Dan- 
iell's  Ch.  Pr.   (2d  Am.  ed.)   1778. 

13  Hyde  v.  Forster,  1  Dick.  132; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)   1778. 

14  Daniell's  Cli.  Pr.  (2d  Am.  ed.) 
1778. 

i5Danieirs  Cli.  Pr.  (2d  Am.  ed.) 
1778. 

i6Vattier  v.  Hinde,  7  Pet.  252, 
200.  8  L.  ed.  675,  680. 


8  219.     1  Daniell's     Ch.     Pr. 


Am.     ed.) 
§  340. 


1097;     Story's    Eq. 


(2d 
PL, 


746 


ABATEMENT  AND  REVIVOR. 


[§  219 


plaintiff."  2  But  Judge  Story  suggests  that  a  bill  in  the  nature 
of  a  bill  of  revivor  would  be  more  appropriate.3  It  is  said  by 
Lord  Bedesdale  that  in  the  case  of  a  bill  by  creditors  on  behalf 
of  themselves  and  other  creditors,  any  creditor  may  revive ; 4 
but  according  to  Daniell,  in  practice  the  form  of  a  bill  in  such 
a  case  is  that  of  a  supplemental  bill  in  the  nature  of  a  bill  of 
revivor,  and  not  of  a  mere  bill  of  revivor.5  Before  a  decree,  a 
suit  can  only  be  revived  by  one  or  all  of  the  surviving  plain- 
tiffs, or  the  representatives  of  one  that  has  died.6  If  any  of  these 
refuse  to  join,  he  must  be  made  a  defendant  to  the  bill  filed  to 
revive  the  suit.7  If  the  suit  concerned  solely  the  real  estate  of 
a  deceased  plaintiff,  his  heirs  alone  are  entitled  to  represent  him 
therein ; 8  if  solely  his  personal  estate,  his  executor  or  adminis- 
trator ; 9  if  both,  separate  bills  of  revivor  may  be  filed  by  his 
heirs  and  personal  representatives,  and  the  neglect  of  one  to 
revive  will  not  prejudice  the  other.10  In  the  case  of  a  suit  by  a 
corporation  sole,  the  death  of  the  plaintiff,  if  he  were  entitled 
to  the  subject-matter  for  his  own  benefit,  caused  an  abatement; 
and  the  suit  could  be  revived  by  his  personal  representative.11 
If,  however,  he  were  only  entitled  to  the  subject-matter  in  his 
corporate  capacity,  the  suit  became  defective,  and  could  only 
be  continued  by  his  successor  by  means  of  an  original  bill  hi 
the  nature  of  a  supplemental  bill.12  Where  a  corporation  had, 
by  purchase  at  a  foreclosure  sale,  succeeded  to  the  rights  of  one 
that  was  defunct,  it  was  held  that  it  could  not  by  a  bill  of  re- 


»Daniell's  Oh.  Pr.  (2d  Am  ed.) 
1697;  Mitford's  PI.,  ch.  1,*§  3;  Hug- 
gins  v.  York  Bldg.  Co.,  2  Eq.  Cas. 
Abr.  3;  Owen  v.  Curzon,  2  Vein. 
237;  Newcombe  v.  Murray,  77  Fed. 
492. 

3  Story's  Eq.  PL,  §  382,  note  4. 

4  Mitford's  PL,  ch.  1,  §  3. 

5  Darnell's  Ch.  Pr.  (2d  Am.  ed.) 
1703. 

6  Darnell's  Ch.  Pr.  (2d  Am.  ed.) 
1700;  Chester  v.  Life  Ass'n  of 
America,  4  Fed.  487. 

7Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1700-,  Fallowes  v.  Williamson,  11 
Yes.  309. 

8  Mitford's    Eq.    PL,    ch.    1,    §    3; 


Ferrers  v.  Cherry,  1  Eq.  Cas.  Abr. 
3,  4:  Melius  v.  Thompson,  1  Cliff. 
125. 

9  Mitford's  PL,  ch.  1.  §  3;  Melius 
v.  Thompson,  1  Cliff.  125;  Ferrers 
v.  Cherry,  1  Eq.  Cas.  Abr.  3,  4. 

10  Mitford's  PL,  ch.  1,  §  3;  Story's 
Eq.  PL,  §  367 ;  Melius  v.  Thompson, 
1  Cliff.  125;  Ferrers  v.  Cherry,  1 
Eq.  Cas.  Abr.  3,  4. 

U  Darnell's  Ch.  Pr.  (2d  Am.  ed.) 
28,  1701;  1  Kyd  on  Corporations, 
77. 

"Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
28,  1701 ;  2  Bac.  Abr.,  Corporation, 
E.  2. 


§    220]  REVIVOR    AT    COMMON    LAW.  747 

vivor  take  the  benefit  of  a  suit  by  the  stockholders  of  the  de- 
funct  corporation,    to    which    the   mortgagee    had    not   been    a 
party. ia     After  a  decree,  a  suit  may  be  revived  by  any  defend- 
ant, or  by  the  representative  of  any  deceased  defendant,  who 
has  acquired  any  right  thereunder,  as  well  as  by  any  plaintiff.14 
§  220.  Manner  of  revivor  at  common  law.  "When  either 
of  the  parties,  whether  plaintiff,  or  petitioner,  or  defendant,  in 
any  suit  in  any  court  of  the  United   States,  dies  before  final 
judgment,  the  executor  or  administrator  of  such  deceased  party 
may,  in  case  the  cause  of  action  survives  by  law,  prosecute  or 
defend  any  such  suit  to  final  judgment.     The  defendant  shall 
answer  accordingly;  and  the  court  shall  hear  and  determine  the 
cause  and  render  judgment  for  or  against  the  executor  or  admin- 
istrator, as  the  case  may  require.     And  if  such  executor  or  ad- 
ministrator, having  been  duly  served  with  a  scire  facias  from 
the  office  of  the  clerk  of  the  court  where  the  suit  is  depending 
twenty  days  beforehand,  neglects  or  refuses  to  become  party 
to  the  suit,  the  court  may  render  judgment  against  the  estate 
of  the  deceased  party,  in  the  same  manner  as  if  the  executor 
or  administrator  had  voluntarily  made  himself  a  party.      The 
executor  or  administrator  who  becomes  a  party   as  aforesaid, 
shall,  upon  motion  to  the  court,  be  entitled  to  a  continuance  of 
the  suit  until  the  next  term  of  said  court."1     It  has  been  held 
that  this  statute  is  confined  to  personal  actions  and  not  to  real 
actions,2   nor   to   proceedings    in    bankruptcy,3   which    may    be 
revived  in  a  more  summary  manner  than  that  provided  bv  rho 
statute  or  by  the  Equity  Rules.4    The  writ  to  collect  a  judgment 
of  the  Federal  court  when  issued  against  the  representative- 
of  one  of  the  original  parties,  or  against  the  indorser  of  a  writ, 
is  a  continuance  of  the  original  action,5  and  an  ancillary  pro- 
ceeding which  can  be  maintained  irrespective  of  the  citizenship 

13  Keokuk  &  *V.  R.  Co.  v.  Scotland  3  Slmte  v.  Patterson,  C.  C.  A.,  147 
County,  152  U.  S.  318.  38  L.  ed.  457.  Fed.  509,  512. 

14  Williams  v.  Cooke,  ]0  Yes.  406;  4  Shute  v.  Patterson,  C.  C.  A.,  147 
Devaynes  v.  Morris,  1  Myl.  &  Cr.  Fed.  50!).  512.  Citing  General  Order 
213,  225.  i„  Bankruptcy,  37. 

§  220.     1U.  S.  R.  S..  §  95.,,     See  B-McKnight  v.   Craig's   Adm'rs,  6 

Allen    v.    Fairhaiiks.    40    Fed.     188.  Crancli,  183.  187,  3  L.  ed.  193,   I'M; 

2Maeker's    Heirs     v.    Thomas,     7  Davis   v.   Davis.   C.  C.   A.,   174    Fed, 

Wheaton,  530,  5  L.  ed.  515.  78(3. 


*1A 


74S 


ABATEMENT  AND  REVIVOR. 


[§   220 


of  the  parties  or  the  amount  in  controversy.6  As  a  general  rule 
the  practice  of  the  State  where  the  proceedings  is  taken  will  be 
followed  in  the  issue  of  and  proceedings  upon  writs  of  scire 
facias,7  hut,  it  has  been  held,  that  a  Federal  court  is  not  bound 
to  follow  the  methods  prescribed  by  the  State  statutes  for  serv- 
ing a  writ  of  scire  facias  to  revive  a  judgment  against  a  non- 
resident defendant;  and  that  it  may  revive  its  own  judgment 
by  such  a  writ  and  prescribe  a  reasonable  method 
for  the  service  thereof  without  the  district,  where  the  judgment 
debtor  has  departed  from  the  same.8  Whether  an  action  upon 
the  judgment  thus  revived  will,  in  such  a  case,  be  entertained 
in  a  court  in  another  State  or  district,  where  the  debtor  resided 
at  the  time  of  the  revivor,  is,  under  the  authorities,  a  doubtful 
question.9 

It  has  been  held :  that  in  a  scire  facias  to  review  a  judgment 
in  an  ejectment,  the  statement  that  the  term  recovered  is  yet 
unexpired  is  sufficient ;  and  that  there  is  no  need  of  stating  in 
the  writ  the  term  as  laid  in  the  declaration,  nor  the  facts  which 
show  its  continuance ; 10  that  to  a  scire  facias  to  revive  a  judg- 
ment in  ejectment  it  is  not  necessary  to  make  the  executor  or 
administrator  of  the  deceased  defendants  parties,  but  that  the 
judgment  must  be  revived  against  the  heirs  of  the  defendant 
in  ejectment  and  the  terretenants ; u  and  that  after  a  convey- 
ance by  the  lessor  of  the  plaintiff  in  ejectment  to  a  third  per- 
son of  land  for  which  judgment  has  been  obtained,  a  scire  facias 
or  writ  of  habere  facias  must  issue  in  the  name  of  the  original 
plaintiff  in  the  original  judgment.12     To  a  scire  facias  to  re- 


6  Pullman's  Palace  Car  Co.  v. 
Washburn.  06  Fed.  790.  supra.  §  21. 

7  MeKnight  v.  Craig's  Adm'rs,  G 
Cranch,  183,  187,  3  L.  ed.  193,  194; 
Walden  v.  Craig,  14  Pet.  147.  151, 
10  L.  ed.  393,  395;  Kenosha  &  R. 
P.  Co.  v.  Sperry,  3  Biss.  309. 

8  Collins  County  Nat.  Bank  v. 
Hughes,  C.  C.  A.,  155  Fed.  3S9. 

9  Collins  County  Nat.  Bank  v. 
Hughes.  C.  C.  A.,  155  Fed.  389..  393, 
394.  Citing  Owens  v.  Henry.  1G1 
U.  S.  642,  40  L.  ed.  837:  Bickerdike 
v.  Allen.  157  111.  95.  41  X.  E.  740, 
29  L.R.A.  782;  Weaver  v.  Boggs.  38 


Maryland.  255.  Where  the  non- 
residenee  of  the  defendant  in  the 
State  where  the  judgment  was  re- 
vived does  not  appear  in  the  record, 
a  declaration  thereupon  in  a  Fed- 
eral court  in  another  State  is  not 
demurrable.  Davis  v.  Davis,  C.  C. 
A.,  174  Fed.  786. 

1°  Lessee  of  Walden  v.  Craig's 
Heirs.  14  Pet.  147,  151,  10  L.  ed. 
393,  395. 

11  Lessee  of  Walden  v.  Craig's 
Heirs.  14  Pet.  147.  10  L.  ed.  393. 

12  Penn  v.  Klyne,  Pet.  C.  C  446. 
Under   the    practice    in    Missouri,    a 


§   220] 


KKVIVOR    AT    COMMON    LAW. 


749 


vive  a  judgment  in  ejectment,  for  the  term  and  damages,  the 
defendant  cannot  plead  a  conveyance  by  the  lessor  of  the  plain- 
tiff, made  subsequent  to  the  judgment.13  Upon  a  writ  of  scire 
farias  to  revive  an  action  or  a  judgment  against  the  personal 
representative  of  a  deceased  defendant,  such  personal  repre- 
sentative can  only  plead  what  the  decedent  could  have  pleaded.14 
unless  there  be  some  matter  which  there  was  no  opportunity  to 
plead  in  the  original  action.15  Upon  a  scire  facias  to  revive  a 
final  or  interlocutory  judgment,  the  defendant  cannot  avail 
himself  of  matters  of  defense  which  occurred  previous  to  the 
original  judgment; 16  nor  plead  a  general  denial.17  A  payment 
which  might  have  been  pleaded  to  the  original  scire  facias  to 
revive  a  judgment  cannot  be  given  in  evidence  on  a  second  scire 
facias.18  If  an  heir  sells  after  judgment  against  the  executor 
upon  the  plea  of  plene  administmvit  found  for  him,  and  before 
scire  facias  against  the  heir,  the  purchaser  may,  in  the  name 
of  the  heir,  plead  to  the  writ  assets  in  the  hands  of  the 
executor.19  The  writ  of  scire  facias  was  issued  to  revive  and 
obtain  execution  against  the  taxing  district  of  Shelby  county, 
which  was  the  successor  of  the  city  of  Memphis,  on  a  judgment 
recovered  against  the  city  of  Memphis  before  the  repeal  of  its 
charter.20  In  that  ease,  the  order  upon  the  return  of  the  scire 
facias  awarded  execution  for  the  amount  of  the  original  judg- 
ment, and  simple  interest,  "which  is,  however,  to  be  calculated 
in  the  marshal's  office  on  the  execution  as  in  all  cases."  21 


writ  of  scire  facias  to  revive  a  judg- 
ment which  has  been  assigned  is  not 
demurrable  because  issued  in  the 
name  of  the  assignor;  but  it  is  suffi- 
cient if  the  writ  shows  that  it  was 
issued  on  behalf  of,  and  to  the  use 
of,  the  assignee,  and  permission  may 
be  given  to  amend  the  writ  by  strik- 
ing out  the  name  of  the  assignor. 
Wonderly  v.  Lafayette  County,  74 
Fed.  702. 

13Penn   v.  Klyne.  Pet.  C.  C.  446. 

1*  McKnight  v.  Craig's  Adm'rs.  6 
Cranch,  183,  187,  3  L.  ed.  193.  194; 
Morsel]  v.  Hall,  13  How.  212.  14  L. 
ed.  117;  Allen  v.  Fairbanks,  40  Fed. 
188. 


15  Hatch  v.  Fustis,  1  Gall.  1G0. 

16  U.  S.  v.  Thompson,  Clip.  014; 
Morsell  v.  Hall,  13  How.  212,  14 
L.  ed.  117;  McKnight  v.  Craig's 
Adm'rs,  6  Cranch,  183.  3  L.  ed.  193: 
Pennock  v.  Gilleland,  1  Pittsb.  37. 

17  Wonderly  v.  Lafayette  Count}-, 
77  Fed.  665. 

18  Hatch  v.  Eustis,  1  Gall.  160; 
Wilson  v.  Hurst.  Pet.  C.  C.  441; 
Wilson  v.  Watson,  Pet.  C.  C.  269. 

19  Hamilton    v. 
291. 

20  Grantland  V. 


Jones,    2    Hayw. 
Memphis,  12  Fed. 


287. 
21  Ibid. 


750  ABATEMENT  -VXD  REVIVOR.  [§     221 

§  221.  Manner  of  revivor  in  equity  in  general.         When 
a  suit  became  abated  after  a  decree  signed  and  enrolled,  it  was 
anciently  the  practice  to  revive1  the  decree  by  a  subpoena  in  the 
nature  of  a  scire  facias,  upon  the  return  of  which  the  party  to 
whom  it  was  directed  might  show  cause  against  the  reviving 
of  the  decree,  bv  insisting;  that  he  was  not  bound  by  the  decree, 
or  that  for  some  other  reason  it  ought  not  to  be  enforced  against 
him,  or  that  the  person  suing  the  subpoena  was  not  entitled  to 
the  benefit  of  the  decree.    If  the  opinion  of  the  court  was  in  his 
favor  he  was  dismissed  with  costs.     If  it  was  against  him.  or  if 
he  did  not  oppose  the  reviving  of  the  decree,   interrogatories 
were  exhibited  for' his  examination  touching  any  matter  neces- 
sary to  the  proceedings.     If  he  opposed  the  reviving  of  the  de- 
cree on  the  ground  of  facts  which  were  disputed,  he  was  also 
to  be  examined  upon  interrogatories,  to  which  he  might  answer 
or  plead;  and  issue  being  joined,  and  witnesses  examined,  the 
matter  was  finally  heard  and  determined  bv  the  court.     But  if 
there  had  been  any  proceeding  subsequent  to  the  decree,  this 
process  was  ineffectual,  as  it  revived  the  decree  only,  and  the 
subsequent  proceedings  could  not  be  revived  but  by  bill,   and 
the  enrollment  of  decrees  being  disused,  it  became  the  practice 
to  revive  in  all  cases  indiscriminately  by  bill.?     The  regular 
methods  of  reviving  a  suit  in  equity  in  the  Federal  courts  have 
been  by  a  bill  of  revivor,  a  bill  in  the  nature  of  a  bill  of  revivor, 
a  bill  of  revivor  and  supplement,   a  supplemental  lull   in  the 
nature  of  a  bill  of  revivor  and  a  bill  in  the  nature  of  a  bill  of 
revivor.2     The  Equity  Rules  of  1912  provide:     "In  the  event 
of  the  death  of  either  party  the  court  may,  in  a  proper  case, 
upon  motion,  order  the  suit  to  be  revived  by  the  substitution 
of  the  proper  parties.    If  the  successors  or  representatives  of  the 
deceased  party  fail  to  make  such  application  within  a  reason- 
able time,  then  any  other  party  may,  on  motion,  apply  for  such 
relief,  and  the  court,  upon  any  such  motion  may  make  the  neces- 
sary orders  for  notice  to  the  parties  to  be  substituted  and  for 
the  filing  of  such  pleadings  or  amendments  as  may  be  neces- 
sary." 3    If  this  rule  stood  alone,  it  would  authorize  the  revivor 
of  a  suit  by  motion  without  a  new  lull.     A  previous  rule,  how- 

%-l-l\.     IMitford's  Ch.  Pr.,  ch.  1,      Powell.    J.,    in    Dillard's    Ad'mr    v. 
£  3.  Central  Va.  iron  Co.,  125  Fed.  159. 

2  Quoted    with    approval    by    Mc-  3  Eq.  Rule  45. 


§    222]  BILL    OF    REVIVOR.  751 

ever,  expressly  recognizes  the  continuance  of  bills  of  revivor.4 
By  the  former  practice,  a  revivor  might  be  made  by  motion 
upon  consent ; 5  and  it  was  suggested  that  where  one  of  the  sur- 
viving parties  had  sued  out  a  scire  facias,  the  personal  repre- 
sentative of  the  decedent  might  obtain  a  revivor  upon  motion.6 
When  a  board  of  public  officers  was  abolished  by  statute  and  a 
new  board  substituted  for  it,  it  was  held,  without  determining 
whether  or  not  a  revivor  was  necessary,  that  the  members  of 
the  new  board  could  properly  be  made  parties  to  the  suit  by 
means  of  a  bill  of  revivor,7  although  a  supplemental  bill,8  or 
bill  in  the  nature  of  a  supplemental  bill,9  would  have  seemed 
more  appropriate. 

§  222.  Definition  of  bill  of  revivor  and  parties  to  the 
same.  A  bill  of  revivor  is  a  continuance  of  the  original  bill, 
when,  by  death,  some  party  to  it  has  become  incapable  of  pro- 
secuting or  defending  a  suit,  or  a  female  plaintiff  has  by  mar- 
riage incapacitated  herself  from  suing  alone.1  "Whenever  a 
suit  abates  by  death,  and  the  interest  of  the  person  whose  death 
has  caused  the  abatement  is  transmitted  to  that  representative 
which  the  law  gives  or  ascertains,  as  an  heir-at-law,  executor,  or 
administrator ;  so  that  the  title  cannot  be  disputed,  at  least  in 
the  Court  of  Chancery,  but  the  person  in  whom  the  title  is 
vested  is  alone  to  be  ascertained ;  the  suit  may  be  continued  by 
bill  of  revivor  merelv.  If  a  suit  abates  bv  marriage  of  a  female 
plaintiff,  and  no  act  is  done  to  affect  the  rights  of  the  party  but 
the  marriage,  no  title  can  be  disputed  ;  the  person  of  the  husband 
is  the  sole  fact  to  be  ascertained ;  and  therefore  the  suit  may  be 
continued  in  this  case  likewise  by  bill  of  revivor  merely."2 
The  persons  who  may  be  plaintiffs  in  a  bill  of  revivor  have  been 
specified  in  a  preceding  section.3  If  the  abatement  be  caused 
by  the  death  or  marriage  of  a  plaintiff,  all  previous  defendants 
to  the  suit  must  be  made  parties  to  the  bill  of  revivor ;  unless  it 

4Eq.  Rule  35;  quoted  infra.  8  Infra,  §  231. 

5  Grisvvold  v.  Hill,  1  Paine,  483.  9  Infra,  §  234. 

6  Dillard's  Adm'r  v.  Central  Vir-  §  222.  iMitford's  PI.,  ch.  1,  §  3: 
ginia  Iron  Co.,  125  Fed.  157.  Fitzpatrick  v.  Domingo,  14  Fed.  21(5. 

7  Hemingway   v.  Stansell,   10G   U.  2  Mitford's  PI.,  ch.  1,  §  3. 
S.  390.  402,  27  L.  ed.  245,  24G.     See  3  §  219. 

also  The  Sapphire.  11  Wall.  104.  20 
L.  ed.  127;  Allen  v.  Mayor,  18 
Blatchf.  239:   s.  c,  7  Fed.  483. 


752  ABATEMENT  AND  REVIVOR.  [.§    223 

be  filed  after  a  decree,  when  all  whose  rights  or  duties  have  been 
fixed  and  ascertained  thereby  must  be  joined.4  If  any  of  the 
previous  plaintiffs  refuse  to  join  in  the  continuance  of  the  suit. 
they  also  must  be  made  defendants  to  the  bill  of  revivor.5  If 
the  abatement  be  caused  by  the  death  of  a  defendant,  only  his 
heirs  or  personal  representatives,  or  both,  according  as  the  suit 
affected  his  interest  in  real  or  personal  property,  should  be 
made  defendants  to  the  bill  of  revivor;6  unless  the  bill  be  filed 
after  a  decree,  when  all  parties  interested  thereunder  should  be 
joined.7  There  is  no  need  of  any  difference  of  citizenship 
among  the  different  parties  to  such  a  bill,  provided  that  the 
court  had  jurisdiction  of  the  original  suit.8  A  suit  cannot  be  re- 
vived against  foreign  executors  unless  ancillary  letters  are  taken 
out  in  the  State  where  the  suit  is  pending.9  A  bill  of  revivor 
cannot  be  filed  against  the  representatives  of  a  defendant  not 
served  with  process  under  the  original  bill.10  They  can  only  be 
brought  in  by  a  bill  in  the  nature  of  an  original  bill.11 

§  223.  Frame  of  bill  of  revivor.  A  bill  of  revivor  must 
state  the  filing  of  the  original  bill,  and  the  several  proceedings 
thereon,  and  the  abatement.1  But  the  rules  provide:  "It  shall 
not  be  necessary  in  any  bill  of  revivor  or  supplemental  bill  to 
set  forth  any  of  the  statements  in  the  original  suit,  unless  the 
special  circumstances  of  the  case  may  require  it."  "It  must 
show  a  title  to  revive,  and  charge  that  the  cause  might  to  be  re- 
vived, and  stand  in  the  same  condition  with  respect  to  the  par- 
ties in  the  bill  of  revivor  as  it  was  in  with  respect  to  the  parties 
to  the  original  bill  at  the  time  the  abatement  happened;  and 
it  must  pray  that  the  suit  be  revived  accordingly. *' 3  Where  a 
decree  has  been  made  reviving  a  former  decree,  a  second  bill 
for  the  same  purpose  properly  seeks  to  revive  the  first  decree  of 

4  Danicll's  Ch.  Pr.  (2d  Am.  ed.)  9  Lawrence  v.  Southern  Pac.  Co., 
3703,  1704,  177  Fed.  547. 

5  Finch  v.  Lord  Winchelsea,  1  Eq.  i»  U.  S.  v.  Fields,  -4  Blatchf.  326. 
Cas.  Abr.  2;    Daniell's   Ch.   Pr.    (2d  ".fee  §  216. 

Am.  ed.)    1700.  §  223.     1  Mitford's  PL.  ch.  1,  §  3. 

SBettcs    v.    Dana,    2    Sumn.    383;  2  Eq.    Rule    35;    copied    from    Eq. 

Daniell's  Ch.  Pr.   (2d  Am.  ed.)   1704.       Pule  58.  of  1842. 

7  Daniell's  Ch.  Pr.  1704.  3  Mitford's  PI.,  ch.  1,  §  3. 

8  (lark  v.  Mathewaon,  12  Pet 
164.  0  L.  ed.  1041;  s.  C,  2  Sumn. 
262. 


§    224]  PROCEEDINGS  OX  BILES  OF  REVIVOR.  753 

revivor,  and  so,  ipso  facto,  the  original  decree.4  If  a  bill  of 
revivor  seeks  simply  to  revive  the  suit,  it  prays  only  for  a  sub- 
pcena  to  revive  and  answer.5  This  usually  is  only  required  in 
two  classes  of  cases.  Where  the  bill  is  filed  against  an  executor 
or  administrator,  and  requires  an  admission  of  assets,  the 
prayer  usually  is,  not  only  that  the  suit  may  be  revived,  but 
also  that,  in  case  the  defendant  shall  not  admit  assets  to  answer 
the  purposes  of  the  suit,  an  account  of  the  estate  of  the  deceased 
party  may  be  taken  ;  "and  so  far  the  bill  is  in  the  nature  of  an 
original  bill."  6  "If  a  defendant  to  an  original  bill  dies  before 
putting  in  an  answer,  or  after  an  amendment  of  the  bill  to  which 
no  answer  has  been  given,  the  bill  of  revivor,  though  requiring 
in  itself  no  answer,  must  pray  that  the  person  against  whom  it 
seeks  to  revive  the  suit  may  answer  the  original  lull,  or  so  much 
of  it  as  the  exceptions  taken  to  the  answer  of  the  former  de- 
fendant extend  to,  or  the  amendment  remainino-  unanswered."7 
A  bill  of  revivor  should  be  signed  by  the  solicitor,8  and  in  gen- 
eral comply  so  far  as  is  practicable  with  the  requirements  for 
original  bills.9 

§  224.  Proceedings  upon  bills  of  revivor.  The  Equity 
Rules  provide  that :  "In  the  event  of  the  death  of  either  party  the 
court  may.  in  a  proper  case,  upon  motion,  order  the  suit  to  be 
revived  by  the  substitution  of  the  proper  parties.  If  the  suc- 
cessors or  representatives  of  the  deceased  party  fail  to  make 
such  application  within  a  reasonable  time,  then  any  other  party 
may,  on  motion,  apply  for  such  relief,  and  the  court,  upon  any 
such  motion  may  make  the  necessary  orders  for  notice  to  the 
parties  to  be  substituted  and  for  the  filing  of  such  pleadings 
or  amendments  as  mav  be  necessarv."  *  This  chances  the  for- 
mer  practice,  which  required  the  issue  of  a  subpoena  and  pro- 
ceedings in  the  nature  of  an  original  suit.2  The  Revisecl  Stat- 
utes provide  "when  either  of  the  parties,  whether  plaintiff,  pe- 

4  Shainwald  v.  Lewis.  09  Fed.  487.  §   224.     1  Va\.  Rule  4.1.     See  Oliver 

SMit/ford's    PI.,   eh.    1.    §   3;    Dan-  v.  Decatur,  4  Cranch,  C.  C.  592. 

jell's  (h.  Pr.    (2d  Am.  ed. )    1707.  2  Mason  v.   Hartford.    P.  &    F.   Ry. 

BMitford's    PL,   eh.    1.   §    3.  Co.,    19    Fed.    53;    Sharon    v.    Terry, 

7Mitford's   PI.  eh.  1,   §  3.  30     Fed.     337;      Foster's     Fed.     Pr., 

BEq.  Rule  24.  (fourth  ed.)    §  181. 
flbariiell's   Ch.    Pr.    (2d   Am.  ed.) 

1707. 

Fed.  Prac.  Vol.  I.— 48. 


754 


ABATEMENT  AND  REVIVOR. 


[§   224 


titioner,  or  defendant,  dies  before  final  judgment,  the  executor 
or  administrator  may,  if  the  suit  survives:,  prosecute  or  defend 
to  final  judgment.  The  defendant  shall  answer,  and  the  causes 
will  be  heard  and  determined,  ami  judgment  rendered  for  or 
against  the  executor  or  administrator.  If  the  executor  or  ad- 
ministrator neglects  or  refuses  to  become  a  party  Twenty  days 
after  being  served  with  a  scire  facias,  the  court  may  neverthe- 
less render  judgment  against  the  deceased  party.  The  executor 
or  administrator  on  becoming  a  party  is  entitled  to  a  contin- 
uance until  the  next  term."3  The  form  of  the  subpoena  upon 
a  bill  of  revivor  is  the  same  as  that  upon  an  original  bill,  except 
that  it  states  the  nature  of  the  bill  to  which  the  defendant  is 
required  to  appear,  and  the  time  allowed  him  by  the  rules  in 
which  to  do  so.4  The  subpoena,  if  required  is  also  sued  out  and 
served  in  the  same  manner  as  one  upon  an  original  bill ;  but 
substituted  service  of  the  subpoena  upon  the  attorney  of  the  de- 
fendant to  the  original  bill  may  be  allowed  when  the  original 
defendant  is  beyond  the  reach  of  process.6  It  has  been  held  that 
a  suit  cannot  be  revived  against  the  foreign  executor  or  admin- 
istrator of  a  deceased  defendant  who  has  not  taken  out  letters 
within  the  jurisdiction  of  the  court,  and  has  no  assets  there.7 
If  the  defendant  refuses  to  appear,  process  of  contempt  may  be 
issued  against  him.8  A  defendant  who  wishes  to  oppose  the 
revivor  should  plead  to  the  bill,  move  to  dismiss  the  same  or  per- 
haps show  cause  by  affidavit  to  the  contrary.9  It  might  per- 
haps not  be  expedient  to  take  in  the  answer  any  objection  to  the 
revivor.  For  the  English  rule  was  that  an  objection  thus  taken 
would  not  prevent  the  order  to  revive,  and  the  point  could  then 
only  be  determined  by  bringing  the  cause  regularly  to  a  hear- 


ing 


10 


A  hill  of  revivor  is  defective  if  it  does  not  show  a  sufficient 


See  Griswold 
(2d  Am.  ed.) 
(2d  Am.  ed.) 


3  1'.  S.  R.  S..  §  955. 
v.   Hill,   1    Paine.   483. 

*Daniell's  Ch.  Pr. 
1707. 

5Daniell's  Ch.  Pr. 
1707. 

6  Dunn  v.  Clarke,  8  Pet.  1,  2,  8 
L.  ed.  845;  Norton  v.  Hepworth,  1 
Hall  &  Tvv.  158.     See  §  96. 

7  Melius  v.  Thompson,  1  Cliff.  125. 


SDaniell's  Ch.  Pr. 
1707. 

aDaniell's  Ch.   Pr. 
1700.   1710;  Rule  58. 

10  Daniell's  Ch.  Pr. 
1709,  1711;  Harris  v.  Pollard,  3  P. 
Wins.  348;  Lewis  v.  Bridgman,  2 
Sim.  40.1;  Codrington  v.  Houlditch, 
5  Sim.  286. 


(2d  Am.  ed.) 
(2d  Am.  ed.) 
(2d  Am.  ed.) 


§    224]  PEOCEEDIXGS  OX  BILLS  OF  KKVIVOR.  755 

ground  for  reviving  the  suit  or  any  part  of  it,  either  by  or 
against  the  person  by  or  against  whom  it  is  tiled;  u  for  want  of 
parties  apparent  upon  its  face,  though  not  for  the  omission  of 
such  as  had  not  appeared  before,  or  were  not  before  the  court 
at  the  time  of  the  abatement;12  and  for  any  serious  detect  in 
form.  Upon  demurrer  to  a  bill  of  revivor,  the  sufficiency  of 
the  original  bill  could  not  be  considered.18  However,  the 
original  bill  failed  to  state  facts  giving  the  Federal  courts  ju- 
risdiction, that  objection  might  he  raised  by  a  demurrer  to  the 
bill  of  revivor.14  If  a  bill  of  revivor  were  brought  without 
sufficient  cause  to  revive,  and  this  were  not  apparent  upon  its 
face,  or  if  the  plaintiff  was  not  entitled  to  revive  the  suit  at 
all,  though  a  title  is  stated  in  the  hill  so  that  it  was  not  demur- 
rable, the  defendant  might  set  up  his  objections  to  it  by  plea.15 
No  plea  can  be  put  in  against  a  bill  of  revivor  which  has  been 
pleaded  to  the  original  bill  and  overruled,  although  if  a  plea 
has  been  put  in  and  the  suit  abated  before  argument,  it  may  sub- 
sequently be  pleaded  anew  to  the  original  bill.16  When  an  an- 
swer to  a  bill  of  revivor  is  required,  it  must  be  confined  to  such 
matters  as  are  called  for  by  the  bill,  or  as  would  be  materi;d 
to  the  defense  with  reference  to  the  order  made  upon  it.17 
Allegations  which  might  have  been  pleaded  before  abatement 
to  the  original  hill  will  be  considered  as  impertinent,18  and  dis- 
regarded.19 It  will  not,  however,  be  impertinent,  if  it  state- 
matters  of  defense  which  have  occurred  since  the  answer  to 
the  original  bill  was  tiled,  though  these  do  not  affect  the  title 
of  the  plaintiff  to  revive.20     Such  an  answer  is  impertinent  when 

11  Harris   v.    Pollard,    3    P.   Wins.        1710:     Lewis    v.    Bridgman,    2    Sim. 
348:   University  College  v.  Foxcroft,       4<i.">. 

2  Or.  P.  244:   Daniell's  Ch.  Pr.   (2d  w Daniell's  Ch.  Pr.   (2d  Am.  edv) 

Am.    ed.)     17011,    1710;    Story's    Kq.  1711. 

PL.  SS  (117.  829.  "Daniell's  Ch.  Pr.    '2,1  Am.  ed.) 

12  Metcalfe    v.    Metcalfe.    1    Keen,  1711:   Story's   Eq.   l'L.  §  868a. 

74;     Crowfoot     v.     Marnier.     9     Sim.  18  Xannev  v.  Tut  tey.  1  1    Price,  117. 

3!)(i:   Daniell's  Ch.  Pr.   (2d  Am.  ed.)  » Gunnel!    v.    Bird,    IQ   Wall.   304. 

17:10,  ."(IS.     1!)    L.    ed.    !M3.    915;     Fretz    v. 

13  Mason  v.  Hartford.   P.  &   V.  Ry.  Stover.  22   Wall.   198,  2(14.  22    L.  ed. 
Co.,  19  Fed.  .13,  55;  Sharon  v.  Terry.  769,  770. 

30  Fed.  337.  20  Langliey    v.    Overton,    10    Sim. 

14  Sharon  v.  Terry.  30   Fed.  337.  345. 
"Daniell's  Ch.  Pr.    (2d  Am.  ed.) 


75()  ABATEJIEXT  AXD  REVIVOR.  [§    225 

it  describes  and  complains  of  irregularities  in  the  suit  before 
the  abatement.21  Such  an  answer  should  be  signed,  bv  the 
solicitor.22  One  replication  put  in  issue  both  the  allegations 
in  that  and  those  in  the  original  answer.23  In  all  other  respects, 
the  form  and  the  proceedings  upon  demurrers,  pleas,  and  an- 
swers to  bills  of  revivor  conformed  as  nearly  as  possible  to 
those  of  and  upon  similar  pleadings  to  original  bills.24  A  bill 
of  revivor  need  not  be  sot  down  for  a  hearing,  unless  it  prays 
other  relief  than  a  mere  ^revivor.25  Where  a  bill  of  revivor 
sought  merely  an  admission  of  assets  and  a  revivor,  and  the 
defendant  admits  assets,  the  cause  might  proceed  upon  the  order 
of  revivor  merely.26  If,  however,  any  issue  were  joined  upon 
the  answer  to  it,  a  hearing  was  necessary.27  The  sole  questions 
before  the  court  when  a  bill  of  revivor  is  filed  are  the  com- 
petency of  the  parties  by  and  against  whom  it  is  filed,  and  the 
frame  of  the  bill.28  A  cause  is  not  revived  until  an  order  of 
revivor  has  been  entered.29 

§  225.  Bills  in  the  nature  of  bills  of  revivor  in  general. 
A  bill  in  the  nature  of  a  bill  of  revivor  is  a  bill  filed  "to  obtain 
the  benefit  of  a  suit  after  abatement  in  certain  eases  which  do 
not  admit  of  a  continuance  of  the  original  bill/5  x  The  ancient 
practice  is  thus  described.  "If  the  death  of  a  party  whose  in- 
terest is  not  determined  by  his  death  is  attended  with  such  a 
Transmission  of  his  interests  that  the  title  to  it,  as  well  as  the 
person  entitled,  may  be  litigated  in  the  court  of  chancery,"  as 
in  the  case  of  a  devise2  or  conveyance3  of  real  estate,  ''the 
suit  is  not  permitted  to  be  continued  by  a  bill  of  revivor.  An 
original   bill   upon   which   the   title   may  be   litigated   must  be- 

21\Vagstaff   v.   Bryan.   1    R.  &   M.  27  Daniell's  Ch.  Pr.    (2d  Am.  ed.) 

28.  1713:   Mitford's  PI.,  eh.   1,  §  3. 

22Daniell's  Ch.  Pr.    (2d  Am.  ed.)  28  Bettes  v.  Dana.  2  Sumn.  383. 

1712.  29  Atterbury  v.   Gill,   13  Off.  Gaz. 

23('atton    v.    Earl    of    Carlisle,    5  276. 

-Madd.    427;    Daniell's    Ch.    Pr.     (2d  §  225.     1  Mitford   PI.,  ch.    1.   §   3. 

Am.  ed.)    1712.  See  Slack  v.  Walcott.  3  Mason.  508, 

24  Daniell's  Ch.  Pr.    (2d  Am.  ed.)  512;    Sharon   v.  Terry.  3(5   Fed.  337, 

1711.  1712.  353. 

25Pruen  v.  Lunrt,  5  Russ.  3:  Dan-  2  Slack  v.  Walcott,  3  Mason,  508. 

icll's  Ch.  Pr.    (2d  Am.  ed.)    1713.  3  Sharon  v.  Terry,  36  Fed.  337. 

26  Mitford's  PL,  ch.   1,  §  3;   Dan- 
iell's Ch.   Pr.    (2d  Am.  ed.)    1713. 


§     225]  BILLS    IN     NATURE    OF    BILLS    OF    REVIVOR.  757 

filed,  and  this  bill  will  so  far  have  the  effect  of  a  bill  of  revivor 
that  if  the  title  of  the  representative  substituted  by  the  act  of 
the  deceased  party  is  established,  the  same  benefit  may  be  had 
of  the  proceedings  upon  the  former  bill  as  if  the  suit  had  been 
continued  bv  a  bill  of  revivor.'"4  "The  bill  is  said  to  be  oris- 
inal  merely  for  want  of  that  privity  between  the  party  to  the 
former  and  the  party  to  the  latter  bill,  though  claiming  the 
same  interest,  which  would  have  permittted  the  continuance 
of  the  suit  by  bill  of  revivor.  Therefore,  when  the  validity 
of  the  alleged  transmission  of  interest  is  established,  the  party 
to  the  new  bill  shall  be  equally  bound  by,  or  have  advantage  of 
the  proceedings  in  the  original  bill,  as  if  there  had  been  such  a 
privity  between  him  and  the  party  to  the  original  bill  claim- 
ing the  same  interest ;  and  the  suit  is  considered  as  pending 
from  the  time  of  the  filing  of  the  original  bill,  so  as  to  save  the 
statute  of  limitations,  to  have  the  advantage  of  compelling  the 
defendant  to  answer  before  an  answer  can  be  compelled  to  a 
cross-bill,  and  every  other  advantage  which  would  have  at- 
tended the  institution  of  the  suit  by  original  bill,  if  it  could 
have  been  continued  by  bill  of  revivor  merely." 5  So  the 
pleadings  filed  and  any  testimony  taken  in  the  original  eause 
can  be  used  in  the  same  manner  in  the  second  cause  after  a  bill 
in  the  nature  of  a  bill  of  revivor  has  been  filed.6  Such  a  bill 
can  only  be  filed  for  the  purpose  of  bringing  in  a  person  who 
claims  in  privity  with  the  party  whose  death  caused  the  abate- 
ment.7 Thus,  if  a  bill  is  filed  by  a  devisee  under  a  will,  and 
afterwards  a  subsequent  will  is  proved,  the  devisee  under  the 
second  will  can  in  no  way  avail  himself  of  the  proceedings  in 
the  suit ;  for  there  is  no  privity  between  him  and  the  original 
plaintiff.  If,  however,  a  bill  has  been  filed  by  the  devisor  hi  in- 
self  for  some  matter  concerning  the  estate  devised,  the  second 
devisee  may  file  a  supplemental  bill  in  the  nature  of  a  bill  of 
revivor,  even  if  the  first  devisee  have  already  filed  such  a  bill ; 
for  he  derives  his  title  so  to  do  solely  from  the  devisor  independ- 

4Mitford's    PI.,    ch.    1,    §    3.      See  §§    371-387;    Daniell's    Ch.    Pr.    (2d 

Slack  v.  Walcott,  3  Mason,  508.  Am.  ed.)   1719. 

SMitford's  PL,  ch.  1,  §  3.  1  Daniell's    Ch.    Pr.    1720;    Story's 

6  Slack  v.  Walcott,  3  Mason,  508;  Eq.  PL,  §  385;   Rylands  v.  Latouche. 

Vattier   v.   Hiiule,    7    Pet.    252.    206,  2  Bligh,  385;   Tonkin  v.  Lethbtidge, 

8  L.  ed.  675.   680;    Story's   Eq.   PL,  G.  Cooper.  43. 


-■". 


758 


ABATEMENT  AND  REVIVOR. 


[§  226 


ently  of  the  first  devisee.8  The  principal  difference  between  the 
effect  of  an  original  bill  in  the  nature  of  a  bill  of  revivor  and  an 
original  bill  in  the  nature  of  a  supplemental  bill  is  that  under 
the  former  the  defendant  is  absolutely  bound  by  the  proceedings 
in  the  original  suit,  whereas  under  the  latter  he  can  avail  him- 
self of  any  defense  which  has  arisen  since  the  original  bill  was 
filed,  or  which  he  has  a  right  to  urge  against  the  new  complain- 
ant, although  it  did  not  exist  against  the  original  plaintiff.9 
When  the  court  had  jurisdiction  of  the  original  suit,  a  want  of 
difference  of  citizenship  between  the  parties  to  the  bill  in  the 
nature  of  a  bill  of  revivor  will  not  be  a  defect  in  it.10 

§  226.  Frame  of  bills  in  the  nature  of  bills  of  revivor  and 
proceedings  upon  them.  A  bill  in  the  nature  of  a  bill  of  re- 
vivor "must  state  the  original  bill,  the  proceedings  upon  it,  the 
abatement,  and  the  manner  in  which  the  interest  of  the  party 
dead  has  been  transmitted;  and  it  must  charge  the  validity  of 
the  transmission,  and  state  the  rights  which  have  accrued  by 
it."  *  It  usually  prays  that  the  original  suit  may  be  revived^ 
and  the  party  tiling  it  have  the  benefit  of  the  former  proceed- 
ings therein.2  Probablv  a  subpoena  issued  in  accordance  with 
its  prayer  may  be  served  upon  the  attorney  of  an  absent  de- 
fendant, who  has  already  appeared,  in  the  same  manner  as  a 
subpoena  upon  a  bill  filed  to  stay  proceedings  at  law.3  Other- 
wise the  form  and  the  proceedings  upon  bills  in  the  nature  of 
bills  of  revivor  wTere  formerly  the  same  as  those  upon  bills  of 
revivor;4  and  the  difference  between  the  two  v7as  practically 
one  of  mere  nomenclature.5 

§  227.  Manner  of  revivor  upon  appeal  or  error. 
The  Supreme  Court  Rules  provide  :  "ll  Whenever,  pending  a  writ 
of  error  or  appeal  in  this  court,  either  party  shall  die.  the  proper 
representatives  in  the  personalty  or  realty  of  the  deceased  party. 


8  Oldham  v.  Eboral,  Cooper.  Select 
Cas.  27. 

»  Fulton  v.  Greacen,  44  X.  J.  Eq. 
443. 

10  Clarke  v.  Mathewson.  12  Pet. 
164,  9  L.  ed.  1041  ;  s.  c,  2  Sumn. 
262:  Minnesota  Co.  v.  St.  Paul  Co., 
2  Wall.  609,  17  L.  ed.  886. 

§  226.  iMitford's  Eq.  PL.  ch.  1, 
§  3. 


2Daniell's  Ch.  Pr.  1721;  Story's 
Eq.  PL,  §  386. 

3  Norton  v.  Hepworth,  1  Hall  & 
T\v.  158;  Dunn  v.  Clarke,  8  Pet.  1, 
2,  8  L.  ed.  845.     See  §  96. 

4Daniell's  Ch.  Pr.  1720,  1721; 
Rule  56. 

5  Grew  v.  Breen.  12  Met.  (Mass.) 
369.  46  Am.  Dec.  687. 


§  227]         REVIVOR  UPON  APPEAL  OR  ERROR.  759 

according  to  the  nature  of  the  case,  may  voluntarily  come  in  and 
be  admitted  parties  to  the  suit,  and  thereupon  the  case  shall 
be  heard  and  determined  as  in  other  cases ;  and  if  such  repre- 
sentatives shall  not  voluntarily  become  parties,  then  the  other 
party  may  suggest  the  death  on  the  record,  and  thereupon,  on 
motion,  obtain  an  order  that  unless  such  representatives  shall 
become  parties  within  the  first  ten  days  of  the  ensuing  term, 
the  party  moving  for  such  order,  if  defendant  in  error,  shall 
be  entitled  to  have  the  writ  of  error  or  appeal  dismissed;  and 
if  the  party  so  moving  shall  be  plaintiff  in  error,  he  shall  be 
entitled  to  open  the  record,  and  on  hearing  have  the  judgment 
or  decree  reversed,  if  it  be  erroneous :  Provided,  however,  that 
a  copy  of  every  such  order  shall  be  printed  in  some  newspaper 
of  general  circulation  within  the  State,  Territory,  or  District 
from  which  the  case  is  brought,  for  three  successive  weeks,  at 
least  sixty  days  before  the  beginning  of  the  term  of  the  Supreme 
Court  then  next  ensuing.  2.  When  the  death  of  a  party  is 
suggested,  and  the  representatives  of  the  deceased  do  not  appear 
by  the  tenth  day  of  the  second  term  next  succeeding  the  sug- 
gestion, and  no  measures  are  taken  by  the  opposite  party  within 
that  time  to  compel  their  appearance,  the  case  shall  abate.  3. 
AVhen  either  party  to  a  suit  in  a"  District  "Court  of  the  United 
States  shall  desire  to  prosecute  a  writ  of  error  or  appeal  to  the 
Supreme  Court  of  the  United  States,  from  any  final  judgment 
or  decree,  rendered  in  the'1  District  "Court,  and  at  the  time  of 
suing  out  such  writ  of  error  or  appeal  the  other  party  to  the 
suit  shall  be  dead  and  have  no  proper  representative  within  the 
jurisdiction  of  the  court  which  rendered  such  final  judgment  or 
decree,  so  that  the  suit  cannot  be  revived  in  that  court,  but  shall 
have  a  proper  representative  in  some  State  or  Territory  of  the 
United  States,  the  party  desiring  such  writ  of  error  or  appeal 
may  procure  the  same,  and  may  have  proceedings  on  such  judg- 
ment or  decree  superseded  or  stayed  in  the  same  manner  as  is 
now  allowed  by  law  in  other  cases,  and  shall  thereupon  proceed 
with  such  writ  of  error  or  appeal  as  in  other  cases.  And  within 
thirty  days  after  the  commencement  of  the  term  to  which  such 
writ  of  error  or  appeal  is  returnable,  the  plaintiff  in  error  or 
appellant  shall  make  a  suggestion  to  the  court,  supported  by 
affidavit,  that  the  said  party  was  dead  when  the  writ  of  error  or 
appeal  was  taken  or  sued  out,  and  had  no  proper  representative 


760  ABATEMENT  AND  BEVIVOR.  [§    227 

within  the  jurisdiction  of  the  court  which  rendered  said  judg- 
ment or  decree,  so  that  the  suit  could  not  be  revived  in  that 
court,  and  that  said  party  had  a  proper  representative  in  some 
State  or  Territory  of  the  United  States,  and  stating  therein  the 
name  and  character  of  such  representative,  and  the  State  or 
Territory  in  which  such  representative  resides ;  and,  upon  such 
suggestion,  he  may,  on  motion,  obtain  an  order  that,  unless  such 
representative  shall  make  himself  a  party  within  the  first  ten 
days  of  the  ensuing  term  of  the  court,  the  plaintiff  in  error  or 
appellant  shall  be  entitled  to  open  the  record,  and,  on  hearing, 
have  the  judgment  or  decree  reversed,  if  the  same  be  erroneous: 
Provided,  however,  that  a  proper  citation  reciting  the  substance 
of  such  order  shall  be  served  upon  such  representative,  either 
personally  or  by  being  left  at  his  residence,  at  least  sixty  days 
before  the  beginning  of  the  term  of  the  Supreme  Court  then 
next  ensuing:  And,  provided,  also,  that  in  every  such  case 
if  the  representative  of  the  deceased  party  does  not  appear  by 
the  tenth  day  of  the  term  next  succeeding  such  suggestion,  and 
the  measures  above  provided  to  compel  the  appearance  of  such 
representative  have  not  been  taken  within  the  time  as  above 
required,  by  the  opposite  party,  the  case  shall  abate :  And,  pro- 
vided, also,  that  the  said  representative  may  at  any  time  be- 
fore or  after  said  suggestion  come  in  and  be  made  a  party  to 
the  suit,  and  thereupon  the  case  shall  proceed,  and  be  heard 
and  determined  as  in  other  cases.,,  1  The  Circuit  Courts  of 
Appeals  have  a  similar  rule.2  Where  one  of  several  joint  de- 
fendants to  a  decree  for  damages  and  an  injunction  against 
the  infringement,  of  a  patent  dies  after  an  appeal,  the  suit  may 
be  revived  in  the  appellate  court  at  the  suit  of  the  survivors, 
upon  notice  to  the  personal  representatives  of  the  decedent  un- 
der the  Supreme  Court  Rule  without  bringing  them  in  as  par- 
ties.3 If  in  such  a  case  the  personal  representatives  of  the  de- 
ceased appellant  voluntarily  come  in  and  ask  to  be  made  parties, 
they  may  be  admitted.4  Where  the  presence  of  the  personal 
representatives  of  a  deceased  appellant  will  be  required  for  the 
due  prosecution  of  an  appeal  by  his   survivors,  the   appellate 

§227.     l  Supreme  Court  Rule  15.  4  Thorpe    v.   Mathington,    1    Phill. 

2C.  C.  A.  Rule  19.  Ch.  200:    .Moses  v.  Wooster,  115  U. 

3  Moses  v.  Wooster.  115  U.  S.  2S5J  S.  2S5,  288,  29  L.  ed.  391,  392. 
287,  29  L.  ed.  391,  392. 


§  228] 


BILLS  OF  REVIVOR  AND  SUPPLEMENT. 


761 


court  may  order  that  the  appeal  be  dismissed  unless  properly 
revived  within  a  limited  time.5  Where  a  defendant  dies  after 
judgment,  an  execution  issued  before  the  judgmenl  is  revived 
is  of  no  effect  and  all  proceedings  thereunder  are  void  ;  unless. 
perhaps,  when  the  writ  was  tested  before  the  deatli  occurred;6 
but  the  death  of  a  judgment  debtor  does  not  affect  the  validity 
of  a  sheriff's  deed  subsequently  executed,  but  previously  or- 
dered.7 Where  a  judgment  for  a  personal  injury  had  been  er- 
roneously set  aside,  the  appellate  court  ordered  judgment  in 
favor  of  the  original  plaintiff  nunc  pro  tunc  as  of  a  date  before 
his  death.8  Where  a  writ  of  error  to  review  a  judgment  of  con- 
viction was  dismissed  upon  the  defendant's  death  and  the  cause 
remanded  for  such  further  proceedings  as  "according  to  right 
and  justice  and  the  laws  of  the  United  States  ought  to  be  had," 
on  the  filing  of  the  mandate  the  court  of  first  instance  had  the 
power  to  entertain  a  motion  in  abatement.9 

§  228.  Bills  of  revivor  and  supplement.  A  bill  of  reviv- 
or and  supplement  is  a  bill  which  revives  a  suit  after  an  abate- 
ment, and  at  the  same  time  supplies  a  defect  which  has  arisen 
in  it  since  its  institution.1  Thus,  where  by  the  death  of  a  de- 
fendant new  rights  accrue  to  the  plaintiffs,  a  bill  of  revivor  and 
supplement  is  necessary  to  state  those  facts.2  And  where  after 
the  conveyance  by  the  complainant  of  the  debt,  he  die,  a  bill  of 
revivor  and  settlement  is  required.8  It  has  been  held  in  Eng- 
land that  by  such  a  bill  a  defect  apparent  upon  the  face  of  the 
original  bill  cannot  be  cured.4     A  bill  of  revivor  and  supple- 


5  Blake  v.  Bogle,  Macq.  Pr.  of  IT. 
of  L.,  244,  note;  Moses  v.  W poster, 
115  U.  S.  285,  288,  29  L.  ed.  391, 
392. 

6  Ransom  v.  Williams,  2  Wall. 
313,  17  L.  ed.  803. 

7Insley  v.  U.  S.,  150  U.  S.  512, 
37   L.  ed.  1163. 

8  Coughlan  v.  District  of  Colum- 
bia, 106  U.  S.  7,  27  L.  ed.  74.  But 
see  Martin's  Adm'r  v.  Baltimore  & 
O.  R.  Co.,  151  U.  S.  673,  38  L.  ed. 
311. 

9  U.  S.  v.  Dunne,  C.  C.  A.,  173 
Fed.  254,   19  Ann.  Cas.   1145. 

§  228.     i  Mitford's  PI.,  eh.  1,  §  2; 


Story's  Eq.  PI.,  §§  387,  027:  Dan- 
ielle's Ch.  Pr.  (2d  Am.  ed.)  1722, 
1723. 

2\Vestcott  v.  Cady.  5  J.  Ch.  (N. 
Y.)    334,  342,  9  Am.  Dec.  306. 

3  Miller  v.  Wattier,  165  Fed.  359. 
See  Metal  S.  Co.  v.  Crandall.  18 
Off".  Gaz.  1531,  wnere  the  court  held 
that  it  was  improper  to  revive  the 
suit  by  a  hill  of  revivor  and  said 
that  he  must  file  a  "supplemental 
bill,"  evidently  intending  thereby  a 
bill  of  revivor  and  supplement. 

*  Bampton  v.  Birchall,  5  Beav. 
330;   s.  c.  on  appeal,  1    Phi).  568. 


7l',2  ABATEMENT  AXD  REVIVOR.  [§     "229 

ment  is  merely  a  compound  of  a  bill  of  revivor  and  a  supple- 
mental bill,  and  in  its  separate  parts  must  be  framed  and  pro- 
ceed in  the  same  manner.5  It  seems  that  it  may  be  good  as  to 
the  revivor,  and  bad  as  to  the  supplemental  matter.6  All  par- 
ties to  the  original  bill  should  be  made  parties  to  a  bill  of  re- 
vivor and  supplement,  although  a  revivor  is  sought  against 
but  one  defendant.7  A  bill  may  be  sustained  upon  demurrer 
where  its  allegations  are  sufficient  to  support  equitable  relief, 
whether  properly  or  not  styled  a  bill  of  revivor  and  supple- 
ment.8 

§  229.  Supplemental  bills  in  the  nature  of  bills  of  re- 
vivor. A  supplemental  bill  in  the  nature  of  a  bill  of  revivor  is 
a  bill  tiled  to  cure  an  abatement  when  the  person  by  or  against 
whom  the  suit  is  to  be  continued,  although  claiming  under  the 
individual  whose  death  caused  the  abatement,  is  not  the  repre- 
sentative whom  the  law  allows  to  be  recognized,  but  is  one  whose 
title  could  not  have  been  litigated  in  the  English  Court  of  Chan- 
cery, but  might  have  been  disputed  before  another  tribunal.1 
It  has  also  been  held  that  where  during  the  pendency  of  a  suit 
a  trustee  died,  and  the  court  appointed  a  successor  to  him.  the 
new  trustee  could  only  be  brought  in  by  supplemental  bill  in 
the  nature  of  a  bill  of  revivor.2  Upon  the  death  of  a  trustee  or 
assignee  in  bankruptcy  or  insolvency  his  successor  is  brought  in 
by  a  bill  of  this  character.3  Where  one  of  the  complainants  died 
leaving  a  will,  which  was  proved  in  a  foreign  country,  a  motion 
.»f  his  executor  and  testamentary  trustee  to  revive  the  suit  upon 
a  bill  in  the  nature  of  a  bill  of  revivor  was  denied  with  leave 
to  him  and  the  decedent's  devisees  to  file  a  supplemental  bill. 
Such  a  bill,  however,  although  designated  as  being  in  the  na- 

5Mitford's  PI.,  ch.  1.  §  3:  Story's  But    see    Campbell    v.    City    of    New 

Eq.   PL.    S§  387.   627:    Daniell's  Ch.  York.   35  Fed.   14. 

Pr.  1722,  1723;  Pendleton  v.  Fay,  3  §  229.     1  Daniell's     Ch.     Pr.     (2d 

Paige   (X.  Y.)  204.  Am.  ed.)    1721. 

6  Randolph  v.  Dickerson.  5   Paige  2  Greenleaf  v.   Queen.   1   Pet.    138, 

(X.  Y.).   .117.     But  see  Bampton  v.  148.  7  L.  ed.  8.">,  80. 

Birchall,  5  Beav.  330:    s.  c.  on  ap-  3  Daniell's   Ch.  Pr.    (2d  Am.   ed.) 

peal,  1  Phil.  568.  1721. 

7'Lake  v.  Austwick.  4  Jur.  314.  *  Currell   v.  Villars,  72   Fed.  330. 

SShainwald  v.  Lewis.  69  Fed.  4S7. 


§  230]  defects  en  suit.  763 

ture  of  a  bill  of  revivor,  is  neither  more  nor  less  than  a  supple- 
mental bill.5 

§  230.  What  renders  a  suit  defective.  If,  after  the  in- 
stitution of  a  suit  in  equity,  a  person  who  is  a  necessary  party 
thereto  comes  into  being,  or  any  other  event  occurs,  which, 
without  abating  the  suit,  occasions  such  an  alteration  in  the 
interest  of  any  of  the  original  parties,  or  gives  any  person  not  a 
party  such  an  interest  therein,  as  makes  it  necessary  that  the 
change  of  interest  shall  be  brought  to  the  attention  of  the 
court,  and  the  person  not  already  a  party  brought  before  it, 
the  suit  is  said  to  become  defective.1  The  circumstances  caus- 
ing the  change  of  interest  must  then  be  alleged,  and  the  new 
party  brought  in  by  a  supplemental  bill,  or  a  bill  in  the  nature 
of  a  supplemental  bill.2  An  assignment  during  the  pendency  of 
a  suit,  whether  made  voluntarily,3  or,  such  as  the  election  of  a 
trustee  in  bankruptcy,  by  operation  of  law,4  of  the  whole  or  a 
part  of  a  defendant's  interest  therein,  does  not  make  the  suit 
defective,  nor  affect  the  rights  of  the  other  parties,  since  the 
assignee  takes  the  same  rights  and  is  subject  to  the  same  obliga- 
tions as  his  assignor,  and  is  equally  bound  or  benefited  by  the 
decree.  The  assignee  need  not,  therefore,  be  made  a  party,* 
unless  the  assignment  disables  the  assignor  from  performing 
the  decree  of  the  court,  when  he  should  be  brought  before  it ; 6 
but  he  may  at  any  time  be  brought  in  at  his  own  request7  or  at 
the  request  of  the  complainant.8     It  has  been  held  :  that  in  a 

SDaniell's  Ch.  Pr.    (2d   Am.  ed.)  5  Eyster  v.  Gaff.  91  U.  S.  521,  23 

1721.  L-  ed.  403;   Ex  parte  Railroad  Co., 

§  230.     1  Jones    v.   Jones,    3    Atk.  95  U.  9.  221.  24  L.  ed.  355. 

217;  Mitford's  PL,  ch.  1,  §  3:   Dan-  «Daniell'a  Ch.   Pr.    (2d   Am.  ed.) 

iell's  Ch.  Pr.   (2d  Am.  ed.)    1003.  1664. 

2  Jones  v.  Jones,  3  Atk.  217:  Mit-  7  Foster  v.  Deacon,  Mad.  &  Geld, 
ford's  PL,  ch.  1,  §  3;  Daniell'a  Ch.  58;  Eyster  v.  Gaff,  91  U.  S.  521.  23 
Pr.    (2d  Am.  ed.)    1663.  L.  ed.  403;    Ex   parte  Railroad  Co., 

3  Ex  parte  Railroad  Co.,  95  U.  S.  95  U.  S.  221.  22G,  24  L.  ed.  355. 
221,   24  L.  ed.   355;   Hazelton  T.   P>.  357:    infra,   §   234. 

Co.   v.   Citizens'   Street   Ry.   Co.,   72  8  Victor    Talking   Machine   Co.   v. 

Fed.  325;   Interlocking  Steel  Sheet-  Hawthorne  &   Shehle  MIg.  Co.,    17:'. 

injj     Co.    v.     Frieetedt     Interlocking  Fed.    <>17.      Cited    with    approval    by 

Channel  Par  Co..   1S2  Fed.  39S.  Lannin-r.  J.,   in    Pittsburgh,  S.  &  N. 

CHewett  v.  Norton;  1   Woods,  68;  R.  Co.  v.  Fiske,  C.  C.  A.,   178  Fed. 

Eyster   v.   Gaff,  91    V.   S.   521.   23   L.  66.  67. 

ed.  403. 


'64 


ABATEMENT  AND  KEVIVOR. 


[§   230 


suit  for  an  injunction,  an  assignment  by  a  sole  plaintiff,  of  his 
whole  interest  in  the  suit,  compels  a  suspension  of  the  proceed- 
ings until  his  successor  is  brought  in.9  Where,  in  a  suit  for 
the  infringement  of  a  patent,  after  an  interlocutory  decree  for 
an  injunction  and  an  account,  the  complainant  assigned  its  en- 
tire right  to  the  patent,  and  took  back  from  the  assignees  a  li- 
cense, which  was  not  exclusive ;  it  was  held,  that  it  could  not 
recover  any  profits  or  damages  on  account  of  the  infringement, 
which  occurred  after  the  execution  of  the  assignment,  nor 
proceed  against  the  defendant  for  a  violation  of  the  injunc- 
tion.10 It  has  been  held:  that  a  reassignment  to  the  original 
complainant  does  not  restore  the  suit  to  its  original  condition, 
before  the  assignment  by  him  was  made ;  and  that  the  suit  can- 
not be  continued  without  a  bill  in  the  nature  of  a  supplemental 
bill.11  The  expiration  of  a  patent  does  not  render  a  suit  for  its. 
infringement  defective  or  abate  the  same.12  It  has  been  said 
that  a  person  entitled  to  the  benefit  of  a  decree  by  his  subse- 
quent acquisition  of  an  interest  in  the  subject-matter  in  contro- 
versy is  not  entitled  to  invoke  the  aid  of  the  court  or  take  fur- 
ther action  until  he  has  made  himself  a  party  by  a  supplemental 
bill  or  other  appropriate  pleading,  and  has  thus  brought  in  the 
representatives  or  successors  in  interest  of  the  original  parties,. 
plaintiff  or  defendant.13  In  a  case  in  admiralty,  it  was  held 
that  a  suit  brought  in  the  name  of  Napoleon  III.,  on  account 
of  an  injury  to  property, — a  French  ship  held  by  him  in  his 
sovereign  capacity, — did  not  abate  by  his  deposition  and  the 
succession  of  the  French  Eepublic  to  the  French  Empire,  and 
that  the  name  of  the  plaintiff  could  at  any  time  be  changed  by 


9  Hoxie  v.  Carr,  1  Sumner.  173; 
Fed.  Cas.  Xo.  6,802;  Ross  v.  Ft. 
Wayne.  63  Fed.  4(H).  470.  31  C.  C. 
A.  288:  Ecaubert  v.  Appleton.  C. 
C.  A.,  67  Fed.  917.  023:  Goss  Print- 
ing Tress  Co.  v.  Scott.  134  Fed.  880: 
Automatic  Switch  Co.  v.  Cutler- 
Hammer  Mfg.  Co..  C.  C.  A.,  147  Fed. 
250;  (ieorge  W.  Jackson.  Inc.  v. 
Friestedt  Interlocking  Channel  Bar 
Co..  150  Fed.  406. 

10  Goss  Printing  Press  Co.  v. 
Scott,  134   Fed.  S80. 


11  Automatic  Switch  Co.  v.  Cutler- 
Hammer  Mfg.  Co.,  C.  C.  A.,  147  Fed. 
250. 

12  George  \V.  Jackson.  Inc.  v. 
Friestedt  Interlocking  Channel  Bar 
Co..  159  Fed.  406:  Interlocking 
Steel  Sheeting  Co.  v.  Friestedt  In- 
terlocking Channel  Bar  Co.,  182 
Fed.  308.  Schmeiser  Mfg.  Co.  v. 
Lilly.   180   Fed.   631. 

13  Secor  v.  Singlefdn,  41  Fed.  725, 
726:    infra.  §  234. 


§  231] 


SUPPLEMENTAL    BILLS. 


765 


order.14  Where,  after  a  receiver  appointed  by  a  State  court 
had  brought  suit  against  a  citizen  of  another  State,  his  appoint- 
ment was  annulled,  and  he  subsequently  died  ;  it  was  held,  that 
the  suit  could  not  be  continued  by  a  citizen  of  the  defendant's 
State,  appointed  to  the  same  receivership  after  such  death.15 

§  231.  Supplemental  bills/  The  Equity  Rules  provide: 
"Upon  application  of  either  party  the  court  or  judge,  may,  upon 
reasonable  notice  and  such  terms  as  are  just,  permit  him  to  file 
and  serve  a  supplemental  pleading,  alleging  material  facts  oc- 
curring after  his  former  pleading,  or  of  which  he  was  ignorant 
when  it  was  made,  including  the  judgment  or  decree  of  a  com- 
petent court  rendered  after  the  commencement  of  the 
suit  determining  the  matters  in  controversy  or  a  part 
thereof." 1  A  supplemental  bill  is  merely  an  addition 
to  the  original  bill.2  At  first  supplemental  bills  were 
filed,  not  only  for  the  purposes  mentioned  in  the  last  sec- 
tion, but  also  to  supply  such  defects  as  might  have  been  cured  by 
amendment  after  the  time  to  perfect  a  bill  by  amendment  had 
expired.3  Xow,  however,  that  amendments  may  be  allowed  at 
any  stage  of  a  suit,4  they  are  no  longer  needed  for  that  purpose; 
and  as  the  fact  that  the  matter  pleaded  in  a  supplemental  bill 
may  be  inserted  in  the  original  bill  by  amendment,  was  also 
good  ground  of  demurrer,5  the  propriety  of  their  use  for  this 
purpose  is  doubtful ; 6  but  they  are  still  occasionally  so  used.7 


14  The  Sapphire,  11  Wall.  164,  20 
I ..  ed.  127.  See  Allen  v.  The  Mayor, 
7  Fed.  483;  s.  a,  18  Blatchf.  239; 
Hemingway  v.  Stansell,  100  U.  S. 
399,  402.  27  L.  ed.  24o.  246.  ' 

is  Hubert  v.  New  Orleans,  C.  C. 
A..  130  Fed.  21. 

§  231.     lEq.  Rule  34. 

2  Quoted  with  approval  by  Hazel, 
J.,  in  Banks  Law  Pub.  Co.  v.  Law- 
yers' Co-Operative  Pub.  Co.,  139 
Fed.  703.  See  Mitford's  PI.,  eh.  1. 
§  2. 

3  Mitford's  PI.,  ch.  1.  §  3:  Dan- 
ielle Ch.  Pr.  (2d  Am.  ed. )  1653- 
1663:  Story's  Eq.  PL.  §  334;  Jen- 
kins v.  Eldredge.  3  Story.  299;  Mos- 
grove  v.  Kountze,   14  Fed.  315. 


4  Rule  29. 

5  Mitford's  PI.,  ch.  2.  §  2.  part  1  ; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)   1681. 

6  Tubman  v.  Wason  Mfg.  Co.,  44 
Fed.  429;  Electrical  A.  Co.  v.  Brush 
El.  Co..  44  Fed.  602.  See,  however, 
Davies  v.  Williams,  1  Sim.  5;  Neva- 
da Nickel  Syndicate  v.  National 
Nickel  Co..  86  Fed.  486:  Mellor  v. 
Smither.  ('.  C.  A.,  114  Vvd.  116.  120. 

7  Banks'  Law  Pub.  Co.  v.  Law- 
yers' Co-Operative  Bub.  Co..  139 
Fed.  701  ;  Murray  v.  Orr  &  Locket 
Hardware  Co..  C.  C.  A..  153  Fed. 
369:  Napier  v.  Westerhoff,  153  Fed. 
98f>:  St.  Louis  &  S.  F.  R.  Co.  v. 
Iladlcy.  1  .la  Fed.  220;  Scott  v.  La- 
ze]!.   170    Fed.    1023. 


7i;.i 


ABATEMENT  AXD  REVIVOR. 


[§  231 


They  must  be  germane  to  the  purpose  of  the  original  bill,  and 
leave  to  file  them  may  be  denied  when  they  might  have  been 
duly  pleaded  by  an  amended  bill  and  there  is  no  excuse  for  the 
delay.9  Subsequent  infringements  of  a  patent,10  even  by  a 
different  device  from  that  charged  in  the  bill,11  or  of  copyrights 
in  the  same  series  of  books,12  have  thus  been  pleaded.  Tn  a  suit 
to  restrain  the  infringement  of  a  patent,  "where  the  patent 
expires  and  is  extended  pending  the  litigation,  and  the  infringe- 
ment by  the  respondent  is  continued  in  respect  to  the  extended 
patent,  a  supplemental  bill  is  a  proper  pleading  to  prolong  the 
suit,  as  in  that  state  of  the  case  the  complainant  may  well  claim, 
if  he  is  the  original  and  first  inventor  of  the  improvement,  to 
recover  of  the  respondent  the  gains  and  profits  made  by  the  in- 
fringement, both  before  and  subsequent  to  the  extension;  but 
the  rule  is  otherwise  where  the  original  patent  is  surrendered. 
as  the  effect  of  the  surrender  is  to  extinguish  the  patent,  and 
hence  it  can  no  more  be  the  foundation  for  the  assertion  of  a 
right  than  can  a  legislative  act  which  has  been  repealed  without 
any  saving  clause  of  pending  actions.  Consequently,  the  in- 
fringement of  the  reissued  patent  becomes  a  new  cause  of  action 
for  whirh,  in  the  absence  of  any  agreement  or  implied  acquies- 
cence of  the  respondent,  no  remedy  can  be  had  except  by  the 
commencement  of  a  new  suit." 13  Where,  however,  the 
defendant  made  no  objection  to  the  complainant's  fil- 
ing    a     supplemental     bill     setting     forth     an     infringement 


8  Mitchell  v.  Big  Six  Development 
■Co.,  18(5  Fed.  552. 

9  Healey  Ice  Machine  Co.  v.  Green, 
184  Fed.  515;  Mitchell  v.  Big  Six 
"Development  Co.,  186  Fed.  552. 

10  .Murray  v.  Orr  &  Lockett  Hard- 
ware Co.,  C.  C.  A.,  135  Fed.  369. 
x\fter  the  complainant  had  finished 
taking  testimony,  he  was  allowed  to 
file  a  supplemental  bill  setting  up 
infringements  which  had  occurred 
after  the  filing  of  the  original  bill. 
Turrell   v.  Spaeth.  0  Off.  Gaz.  1163. 

11  Hqugnton  v.  YYhitin  Machine 
Works,  101  Fed.  581.  It  has  been 
held  that  the  complainant  is  not 
bound  to  bring  such  new  method  of 


infringement  into  the  original  suit 
and  that  a  judgment  therein  is  no 
bar  to  a  subsequent  suit  by  him  for 
the  infringement  by  means  of  the 
subsequent  device.  T.  B.  Wood's 
Sons  Co.  v.  Valley  Iron  Works,  198 
Fed.  869.     See  supra,  §  186. 

12  Banks'  Law  Pub.  Co.  v.  Law- 
yers' Co-Operative  Pub.  Co.,  139 
Fed.   701. 

13  Clifford.  ,L.  in  Reedy  v.  Scott, 
23  Wall.  352.  364.  365.  23  L.  ed.  109, 
110,  111.  See  also  Fry  v.  Quinlan, 
13  Blatchf.  205;  Jones  v.  Barker, 
11  Fed.  597.  But  compare  Wood- 
worth  v.  Stone,  3  Story,  749:  Reay 
v.  Raynor,  19  Fed.  308. 


§  231] 


SUPPLEMENTAL    BILLS. 


767 


of  a  reissued  patent,  but  filed  to  it  a  plea  similar 
to  that  which  he  had  previously  filed  to  the  orig- 
inal bill,  it  was  held  that  he  had  waived  his  right  to  object  upon 
appeal  that  the  suit  was  improperly  continued,  and  that  an 
original  bill  should  have  been  filed.14  After  the  institution  of 
suits  to  enjoin  the  enforcement  of  State  statutes  fixing  freight 
rates,  supplemental  bills  to  enjoin  the  enforcement  of  subse- 
quent statutes  fixing  passenger  rates15  and  to  enjoin  proceedings 
in  the  State  court  to  obtain  an  adjudication  there  of  the  ques- 
tion previously  pending  in  the  Federal  court,16  have  been  per- 
mitted. A  forfeiture  of  the  defendant's  franchise  pending  a 
suit  for  an  injunction  may  be  pleaded  by  supplemental  bill.17 
In  a  patent  case,  brought  by  an  exclusive  assignee,  he  was  al- 
lowed to  show  by  a  supplemental  bill  that  pending  the  suit  the 
patent  had  been  assigned  to  him.18  When  an  event  happens 
subsequently  to  the  tiling  of  an  original  bill  which  gives  a  new 
interest  in  the  matter  in  dispute  to  any  person,  whether  or  not 
already  a  party,  without  depriving  of  their  interest  all  of  the 
original  plaintiffs  suing  in  their  own  right,  the  defect  arising 
from   this   event   may   be    supplied   by    a    supplemental    bill.19 


14  Reedy  v.  Scott,  23  Wall.  352, 
23  L.  ed.   109. 

15  St.  Louis  &  S.  F.  R.  Co.  v.  Had- 
ley,  155  Fed.  220.  So,  when  the 
statute  in  force  at  the  beginning  of 
the  suit,  which  authorized  public  of- 
ficers to  sue,  to  enforce  the  same, 
was  repealed  and  a  new  law  enacted 
subject,  to  the  same  objections, 
which  provided  that  private  persons 
might  sue  because  of  its  violation. 
Central  of  Georgia  Ry.  Co.  v.  Rail- 
road Com.  of  Ala. 

16  Missouri  Pac.  Ry.  Co.  v.  Jones, 
3  70  Fed.  124. 

17  Rio  Grande  Dam  &  Irrigation 
Co.  v.  U.  S.,  215  U.  S.  266,  269,  54 
L.  ed.  190.  192. 

18  ( (watonna  Mfg.  Co.  v.  F.  B. 
Fargo  &  Co.,  94  Fed.  519:  Banks 
Law  Pub.  Co.  v.  Lawyers'  Co-Opera- 
tive  Pub.  Co.,  139  Fed.  701,  a  copy- 
right case. 


19  Quoted  with  approval  by  Hazel, 
J.,  in  Banks'  Law  Pub.  Co.  v.  Law- 
yers' Co-Operative  Pub.  Co..  139 
Fed.  701.  See  Hobson  v.  McArthur, 
16  Pet.  ISO:  Daniell's  Ch.  Pr.  1663- 
1675:  Story's  Eq.  PL,  §§  336-343; 
Mitford's  PL.  cli.  1.  §  3.  It  lias 
been  held  that  supplemental  lulls 
may  be  tiled  to  plead  the  removal, 
subsequent  to  the  original  hill,  of 
liens  which  were  obstacles  to  part 
of  the  plaintiff's  claim  (Sheffield  & 
B.  I.  A;  Ry.  Co.  v.  Newman.  C.  C.  A., 
77  Fed.  7S7  ) .  and  to  plead  an  elec- 
tion to  declare  the  principal  of  a 
mortgage  due.  made  subsequent  to 
the  original  bill  to  foreclose  for  a 
default  in  interest  (Seattle.  L.  S. 
&  G.  Ry.  Co.  v.  Union  Tr.  Co..  79 
Led.  179):  or  to  plead  subsequent 
defaults  in  interest.  X.  Y.  Security 
&  Tr.  Co.  v.  Lincoln  Stone   Ry.  Co. 


70S  ABATEMENT  AND  REVIVOR.  [§     231 

Where  a  board  of  directors  seek  to  dismiss  a  suit  by  a  cor- 
poration, minority  stockholders  may  be  allowed  to  come  in  by 
supplemental  bill,  and  to  continue  the  suit  in  their  own  right, 
and  at  their  own  expense,  upon  compliance  with  Equity  Rule 
27. 20  Where,  pending  a  foreclosure  suit,  a  majority  of  the 
bondholders,  in  accordance  with  the  trust  deed,  removed  the 
trustee,  who  had  brought  the  suit,  and  appointed  another  in  his 
place;  the  latter  was  permitted  to  file  a  supplemental  bill  to 
procure  his  substitution  as  complainant,  when  there  appeared 
to  be  no  fraud  in  his  appointment.81  A  remainderman  may 
also,  in  this  same  manner,  be  made  a  party  to  a  suit  brought  by 
or  against  a  tenant  in  tail  upon  the  determination  of  the  hit- 
ter's estate,  and  the  acquisition  by  the  former  of  the  present 
interest  to  the  property  in  litigation.22  A  supplemental  bill 
which  brings  in  a  new  party  may  be  original  as  to  him,  but 
supplemental  as  to  the  rest.23  If,  pending  a  suit,  a  tenant  in 
tail  of  an  estate  thereby  affected  by  it  is  born;24  or  if,  pending 
a  suit  against  a  husband  and  wife  concerning  the  latter's  es- 
tate, the  man  dies,  and  the  wife  thus  acquires  a  new  interest;25 
or  if  one  of  two  or  more  plaintiffs  suing  in  their  own  right  is 
entirely  deprived  of  his  interest,  by  any  other  event  than  an 
assignment  of  it;26  or  if  the  interest  of  a  sole  plaintiff  suing 
in  a  representative  capacity  entirely  determines  by  death  or 
otherwise,  and  some  other  person  becomes  entitled  to  the  same 
property  under  the  same  title,27 — the  defect  in  the  suit  thereby 
occasioned  must  be  cured  by  a  supplemental  bill.  So,  if  pend- 
ing a  suit  a  party  becomes  a  lunatic,  or  if  pending  a  suit  by 
or  against  a  lunatic  and  his  committee  a  new  committee  is 
appointed,  the  committee  should  be  brought  in  by  a  supple- 
mental bill.28  A  supplemental  bill  may  be  filed  after 
a     decree     in     aid     of    the     same ;     as,     it     has     been     held, 

74  Fed.  07.     Sen  also  s.  c,  77  Fed.  24  Mitford's  PI.,  ch.  I,  §  3. 

525.  25  Daniell's  Ch.  Pr.    (2d  Am.  ed.) 

20  Eagle    Iron    Co.   v.    Colyar,    156       1603. 

Fed.  054.     See  supra,  §  145.  26  Mitford's  PI.,  eh.   1,  §  3;    Dan- 

21  March  v.  Romare,  C.  C.  A.,  110       Jell's  Ch.  Pr.    (2d  Am.  ed.)    1064. 
ltd.  355.  27  Mitford's  PL.  ch.   1,   §   3;    Dan- 

22  Lloyd    v.  Johnes,    9    Ves.  37;        fell's   Ch.   Pr.    (2d   Am.  ed.),    1665; 
Daniell's    Ch.  Pr.     (2d    Am.    ed.),       Marriott  v.  Tarpley,  9  Sim.  279. 
1668-1672.  28  Mitford's  PL,  ch.   1,  §  3;   Dan- 

23  Mitford's  PL,  ch.  1,  §  3.  fell's  Ch.  Pr.   (2d  Am.  ed.)    1664. 


§    231]  SUPPLEMENTAL    BILLS.  T6D 

bv  a  purchaser  at  a  foreclosure  sale  to  enjoin  an  at- 
tack upon  his  title  by  proceedings  in  a  Stale  court  after 
suit  by  privies  to  the  original  suit,  such  as  stockholders  or  cred- 
itors,29 and  to  enjoin  the  taking  possession  of  property  to  which 
the  complainant  is  entitled  under  the  decree,80  or  to  enforce  a 
decree  by  consent.31  Before  the  act  of  February  8th,  L899,8  it 
was  held:  that  the  successor  in  office  of  a  cabinet  officer  could 
not  be  substituted  for  him  in  a  suit  for  an  injunction,  and  for 
a  decree  directing  the  issue  of  a  patent;33  but,  that  a  supple- 
mental bill  might  be  filed  to  enjoin  a  State  Attorney-General 
from  continuing,  in  the  State  court,  a  suit,  the  prosecution  of 
which,  by  his  predecessor,  had  been  enjoined.34  After  an  in- 
terlocutory decree  for  an  injunction  and  an  accounting  in  a 
patent  suit,  and  the  conclusion  of  the  accounting  thereunder ;  the 
court  refused  to  permit  the  complainant,  by  a  supplemental 
bill,  to  bring  in  the  officers  and  directors  of  the  defendant,  in 
order  to  charge  them  with  individual  liability  upon  the  final 
decree.35  But  where  such  officers  were  originally  made  parties, 
proof  that  since  the  commencement  of  the  suit  the  corporation 
has  become  insolvent  and  has  transferred  its  property,  may  be 
received  without  the  tiling  of  a  supplemental  bill.36  Pending 
a  suit  to  restrain  a  house-owner  from  interfering  with  com- 
plainant's wires  by  moving  his  building  along  a  street,  leave 
was  refused  to  file  a  supplemental  bill  against  other  house- 
movers  moving  other  houses  on  the  same  road  over  the  same 
street  under  separate  permits.37  Assignees  of  defendants  en- 
joined from  using  a  trade-mark,  who  use  the  mark,  but  do  not 
base  their  claim  to  use  it  on  any  rights  supposed  to  be  derived 
from  the  original  defendants,  cannot  be  brought  into  the  orig- 

29  Central  Tr.  Co.  v.  Western  N.  33  Warner  Valley  Stone  Co.  v. 
C.  R.  Co.,  80  Fed.  24.  Rut  see  Smith.  165  V.  S.  28,  41  L.  ed:  821. 
Keokuk  &  W.  R.  Co.  v.  Scotland  34  Prout  v.  Starr.  188  U.  S.  537. 
County,  152  U.  S.  318,  38  L.  ed.  457.  544.  47    L.  ed.  5S4.  587. 

30  Root  v.  Woolworth,  150  U.  S.  35  H.  ('.  C,„,k  Co.  v.  Little  Kiver 
401,   37   L.   ed.   1123.  Mfg.  Co..  156   Fed.  07t>. 

31  Chapman  v.  Yellow  Poplar  36  Saxlehner  v.  Eisner,  140  Fed. 
Lumber  Co.,  C.  C.  A.,  143  Fed.  201.  038. 

32  30  St.  at  L.  822.  Quoted  supra,  WEdison  El.  Light  &  Power  Co. 
§  174_  v.  Blomquist,  185  fed.  015. 

Fed.  Prac.  Vol.  I.— 49. 


770 


ABATEMENT  AND  REVIVOR. 


[§  231 


inal  suit  by  supplemental  bill.38  A  bill  by  a  surviving  partner 
to  settle  the  partnership  affairs  is  a  separate  and  distinct  pro- 
ceeding from  a  suit  subsequently  brought  by  the  same  party 
to  «ubject  real  estate  of  the  deceased  partner  to  the  -payment 
of  debts  held  by  his  heirs,  and  the  statute  of  limitations  cannot 
be  avoided  by  styling  the  second  bill  a  supplemental  bill.39 
According  to  Lord  Redesdale,  upon  the  death  of  one  suing  in 
behalf  of  himself  and  others  in  the  same  position  With  him, 
if  his  representative  do  not  choose  to  file  a  bill  of  revivor, 
any  one  of  the  class  on  behalf  of  whom  he  sued  may  revive ; 40 
but  it  seems  that  a  more  proper  course  would  be  for  the  one 
wishing  to  continue  the  suit  to  do  so  by  means  of  a  supple- 
mental bill,  which  he  can  only  obtain  leave  to  file  upon  notice 
to  the  representatives  of  the  deceased  plaintiff,  as  well  as  to 
the  defendants.41  Where,  however,  a  suit  brought  by  one  in  a 
representative  capacity  becomes  defective  by  his  death,  and 
another  acquires  the  right  t<-  continue  it  under  a  different 
title, — as  upon  the  death  of  an  executor  or  administrator 
succeeded  by  an  administrator  de  bonis  non.  according  to  Lord 
Redesdale  and  Daniell,  the  latter  may  continue  by  a  bill  of 
according   to   Judge    Storv,    only   by   a   bill    in    the 


revivor 


42 


nature  of  revivor ; 43  in  no  case  by  a  supplemental  bill.  It 
has  been  held  that  in  a  case  where  the  defendant  is  entitled 
to  affirmative  relief  in  his  answer  without  a  cross-bill,  as  a 
suit  under  Section  4918  of  the  Revised  Statutes,  the  complain- 
ant may  plead  in  a  supplemental  bill  any  matter  in  defense  to 
such  a  claim  for  affirmative  relief,  that  he  might  have  pleaded 
by  supplemental  answer  to  a  cross-bill,  had  one  been  filed. 
A  supplemental  bill  must  not  be  inconsistent  with  the  original 
bill.  Thus,  where  the  original  bill  stated  that  the  defendants 
claimed  to  be  a  corporation,  but  were  not  incorporated,  it  was 


38  Dadirrian  v.  Gullian.  80  Fed. 
986. 

39  White  v.  Miller,  158  U.  S.  128, 
39  L.  ed.  021. 

MMitford'a  PL,  eh.  1.  §  3. 

41  Houlditch  v.  Marquis  Donne- 
gall,  1  S.  &  S.  491:  Dixon  v.  YVvatt, 
4  Madd.  392;  DanieiPs  Ch.  Pr.  1 2d 
Am.  ed.i  1671,  1072;  Story's  Eq. 
PL.  §  2<ir,. 


42Mitford's  PL.  eh.  2.  §  3 ;  Dan- 
iell's  Ch.  Pr.  (2d  Am.  ed.  |  1665; 
Owen  v.  Curzon,  2  Vern.  237 :  Hug- 
gins  v.  York  Buildings  Co.,  2  Eq. 
Ahr.  3.   pi.    14. 

43stury">  Eq.  PI..  §  382.  n.  1. 

« Electrical   A.   Co.   v.   Brush    El. 
Co.,  44  Fed.  602,  607;  supra,  §§  1?J 
171. 


1   232] 


SUPrLK  M  E  KTAt,    BILLS. 


771 


held  improper  to  file  a  supplemental  bill  claiming  relief  upon 
the  o-round  that  the  defendants  were  a  corporation.45  Wher  ■ 
the  original  bill  against  a  corporation  prayed  an  injunction 
and,  as  incidental  relief,  a  receiver,  and  the  defendant  waa 
dissolved  by  proceedings  in  a  State  court,  after  the  issue 
of  an  inquisition,  but  before  the  appointment  of  a  receiver,  a 
supplemental  bill  seeking  to  continue  the  injunction  against 
the  liquidators  was  held  improper.46  A  defective  original  can- 
not be  cured  by  new  matter  subsequently  arising,  set  forth  in 
a  supplemental  bill,  such  as  the  entry  of  judgment  in  favor 
of  the  plaintiff  subsequent  to  his  filing  a  creditor's  bill.47  The 
only  exceptions  to  this  rule  are  the  probate  of  a  will,  or  obtain- 
ing letters  of  administration  by  a  partv  who  has  sued  as 
executor  or  administrator,  and  a  few  other  cases  of  the  per- 
fection of  an  inchoate  right.48 

§  232.  Parties  and  frame  of  a  supplemental  bill.  As  a 
2-eneral  rule,  all  parties  to  the  original  suit  must  be  made 
such  to  a  supplemental  bill  filed  to  supply  a  defect  m  it, 
unless  such  a  bill  be  filed  to  bring  in  a  mere  formal  defend- 
ant, or  to  allege  matter  which  cannot  possibly  affect  a  decree 
against  more  than  one  defendant,  when  the  others  need  not  be 
made  parties  to  it.2  An  objection  for  want  of  parties  must, 
however,  be  made  by  motion  to  dismiss,  answer,  or  when  the 
motion  for  leave  to  file  the  bill  is  argued.  It  may  be  too  late 
to  make  it  at  the  hearing.3  If  the  court  had  jurisdiction  of 
the  original  bill  it  will  take  jurisdiction  of  the  supplemental 
bill,  no  matter  what  may  be  the  citizenship  of  the  new  parties;4 
provided  at  least  that  they  have  a  right  to  sue  and  be  sued  in 
a  Federal  court.5     A  "supplemental  bill  must  state  the  original 


45  Maynard  v.  Green,  30  Fed.  643. 

46  Lang  v.  Louisiana  Canning  Co., 
56  Fed.   675. 

OTPutney  v.  Wlutmore,  66  Fed. 
385;  Xeubert  v.  Massman,  37  Fla. 
91,  T.l  So.  62.~>:  Heffron  v.  Knicker- 
bocker, 57  HI.  App,  33!):  X.  Y.  Se- 
curity &  Tr.  Co.  v.  Lincoln  Street. 
Ry.  Co.,  74  Fed.  67.  But  see  s.  C. 
77  Fed.  525. 

48  Supra,  §  164. 

§  232.     iDaniell's    Ch.    Pr.     (2d 


Am.  ed.)  1678;  Jones  v.  Jones,  3 
Atk.  217;  Dyson  v.  Morris.  1  Hare, 
413:  Jones  v.  Bpwells,  2  Hare.  342. 
SlJreenwood  v.  Atkinson.  .">  Sim. 
419;  Dyson  v.  Morris,  1  Hare  413; 
Wilkinson  v.  Fowkesj  '.»  Hare  193; 
Story's   Eq.   PL,  §  343. 

3  Jones  v.  Jones.  3  Atk.  217. 

4  Minnesota    Co.    v.    St.     Paul     Co., 
2  Wall.  609,   17  L.  ed.  SS6.     See   §  21. 

5  See   Adams  Express  Co.   \.    Den- 
ver  &   R.    G.   R.    Co.,    16    Fed.    712; 


772 


ABATEMENT  AND  REVIVOR. 


[§  232 


bill,  and  the  proceedings  thereon,  and  if  the  supplemental 
hill  is  occasioned  by  an  event  subsequent  to  the  original  hillr 
it  must  state  that  event,  and  the  consequent  alteration  with 
respect  to  the  parties."6  The  Equity  Rules  provide  that  "It 
shall  not  be  necessary  in  any  bill  of  revivor  or  supplemental 
hill  to  set  forth  any  of  the  statements  in  the  original  suit,  unless 
the  special  circumstances  of  the  case  may  require  it.'*7  This, 
however,  although  copied  in  substance  from  an  English  Chan- 
cery order,8  is  merely  a  reafhrmanee  of  the  pre-existing  prac- 
tice.9 If  the  bill  brings  in  no  new  party,  there  is  never  any 
need  of  its  containing  any  of  the  statements  in  the  original 
pleadings.10  When,  however,  it  brings  in  a  new  party,  as  it  is 
in  fact  original  as  to  him,  it  must  state  enough  of  the  former 
proceedings  to  show  an  equity  against  him.11  These  need  not 
be  averred  positively ;  but  it  will  be  sufficient  to  state  that  such 
matters  were  alleged  in  the  former  bill  or  answer,12  and  only 
so  much  of  the  original  pleadings  need  be  set  forth  as  suffice 
to  show  an  equity  against  the  new  party.13  The  prayer  of 
a  supplemental  bill  is  adapted  to  the  object  for  which  it  is 
exhibited.  It  formerly  always  concluded  with  a  prayer  for 
process  in  the  usual  form.14  "Whether  this  is  now  necessary 
when  no  new  defendants  are  brought  in  may  be  doubted,.15 
It  should  be  signed  by  the  solicitor,16  and  in  other  respects, 
conform  to  the  form  of  an  original  bill.17  Where  no  objec- 
tion to  the  form  of  proceedings  is  made,  relief  which  regu- 
larly should  only  be  granted  upon  a  supplemental  bill,  may  be 
allowed  upon  a  petition.18     A  supplemental  bill  may  Be  filed 


Omaha   H.   R.   Co.   v.   Cable  T.   Co., 
33  Fed.  689. 

6Mitford's  PL,  eh.  1,  §  3. 

'  Ei).  Rule  35;  copied  from  Eq. 
Rule  58  of  1842. 

8  See  Order  47  in  Chancery,  of 
August,  1S41. 

9Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1675-1678. 

10  Daniell's  Ch.  Rr.    (2d  Am.  ed.) 

it;:."). 

n  Raldwin  v.  Mackown,  3  Atk. 
SIT:  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1675s  1076. 


12  Lloyd  v.  Jones,  9  Yes.  37 :  Dan- 
iell's Ch.  Pr.   (2d  Am.  ed.)    1676. 

13  Vigers  v.  Lord  Audley.  9  Sim. 
72:  Attorney-C4eneral  v.  Foster.  2 
Hare,  81;  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)   1076,  1677. 


Pr.  1680. 

Bill,  95  U.  S.   10, 


14  Daniell's  Ch. 

15  See  Shaw  v. 
24  L.  ed.  333. 

16  Eq.  Rule  24. 

17  Daniell's  Ch. 

1680. 

18  Coburn  v.  Ohio  Valley  Land  & 
Cattle  Co.,  138  U.  S.  196,  223.  34 
L.  ed.  876,  887. 


Pr.    (2d  Am.  ed.) 


233] 


PROCEEDINGS   ON   SUPPLEMENTAL   BILES. 


773 


at  any  time  during  the  progress  of  a  suit,  as  well  after  as 
before  a  decree.19  and  even  during  the  pendency  of  an  appeal.20 
It  seems,  however,  that  if  matters  which  make  it  necessary  or 
advisable  were  known  to  the  party  filing  it  before  the  entry 
of  the  decree,  afterwards  it  will  be  too  late ; 21  though  such  an 
objection  must  be  taken  before  the  hearing  upon  the  supple- 
mental bill.22 

§  233.  Proceedings  upon  supplemental  bills.  The 
Equity  Rules  provide :  "Upon  application  of  either  party  the 
court  or  judge,  may,  upon  reasonable  notice  and  such  terms  as. 
are  just,  permit  him  to  file  and  serve  a  supplemental  pleading, 
alleging  material  facts  occurring  after  his  former  pleading,  or 
of  which  he  was  ignorant  when  it  was  made,  including  the 
judgment  or  decree  of  a  competent  court  rendered  after  the 
commencement  of  the  suit  determining  the  matters  in  contro- 
versy or  a  part  thereof."1  The  petition  for  leave  to  file  such 
a  bill  need  not  state  the  averments  which  are  intended  to  be 
inserted  therein ;  but  must  state  sufficient  to  advise  the  opposite 
parties  and  the  court  of  the  ground  upon  which  the  relief  is 
sought.2  It.  was  held  that  upon  the  return  of  the  order  to  show 
cause  an  objection  which  was  a  proper  ground  for  a  demurrer 
could  not  be  raised.3  The  objection  that  a  supplemental  bill  was 
filed  without  leave  was  not  a  ground  of  demurrer,  but  only 
for  a  motion  to  dismiss  which  rested  in  the  discretion  of  the 
court.4  A  motion  would  not  lie  to  take  a  supplemental  bill 
off  the  file  for  irregularity  upon  the  ground  that  it  does  not 
state  supplemental  matter.5     The  proper  course  in  such  a  case 


19  Root  v.  Woodworth,  150  U.  S. 
§  401,  37  L.  ed.  1123;  Central  Tr. 
Co.  v.  Western  N.  C.  R.  Co..  89  Fed. 
24;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1659,  1660;  Story's  Eq.  PL,  §§  333, 
338a;  2  Barbour's  Ch.  Pr.  167; 
O'Hara  v.  Shepherd,  3  Md.  Ch.  Dec. 
306;  Jenkins  v.  Eldredge.  3  Story, 
209;  Woodward  v.  Woodward,  1 
Dick.  33;  Dormer  v.  Fortesque,  3 
Atk.  124;  Secor  v.  Singleton,  41 
Fed.  725. 

20  Woodward  V.  Woodward,  1 
Dick.  33. 


21  Pendleton  v.  Fay.  3   Paige    (N- 
Y.),  204;   Story's  Eq.  PI.,  §  338a. 

22  Fulton   Bank  v.  N.  Y.  &  S.   C. 
Co.,  4  Paige   (N.  Y.).  127. 

§  233.     1  Equity  Rule  34. 

2  Parkhurst  v.  Kinsman.  2  Blatchf. 
C.  C.  72. 

3  Oregon  &   Trans.  Co.  v.  N.  Pac. 
Ry.  Co.,  32  Fed.  428. 

4  Henry  v.  Travelers'  Ins.  Co.,  45 
Fed.  299,  303. 

5  Bovver  v.  Bright.  13  Price.  316; 
Daniell's  Ch.  Pr.  (.2d  Am.  ed.)   L682. 


i  I 


ABATEMENT  AND  REVIVOR. 


[§  233 


was  to  demur,  or  to  object  to  the  order  allowing  it  to  be 
filed.6  Such  motion  might,  however,  be  granted  if  a  bill  filed 
should  be  different  from  that  which  the  order  allowed.  A 
supplemental  bill  filed  without  leave  may  by  a  subsequent 
order  be  allowed  to  remain  on  file.7  No  subpoena  need  be 
issued  upon  such  a  bill  unless  new  defendants  are  to  be  brought 
in  :  and  then  they  only  need  be  served  with  process.8  Such 
a  subpiena  is  in  the  same  form  as  one  issued  upon  the  filing  of 
an  original  bill,  except  that  it  specifies  the  nature  of  the  bill 
upon  which  it  is  issued.9  A  demurrer  to  a  supplemental  bill 
was  in  general  subject  to  the  same  rules  except  as  to  time  of 
films:  the  same,  and  would  lie  for  the  same  reasons  as  if  the  bill 
were  original ; 10  but  there  were  some  grounds  of  demurrer 
peculiar  to  bills  of  this  class.  Thus,  a  demurrer  would  lie  if 
it  appeared  upon  the  face  of  the  bill  that  it  pleaded  matters 
which  occurred  before  the  institution  of  the  suit,  and  which 
it  was  not  too  late  to  insert  by  amendment  into  the  original  bill.11 
A  supplemental  bill  was  demurrable  where  it  showed  on  its 
face  that  the  plaintiff  knew  the  facts  therein  alleged  before  his 
time  to  amend  had  expired.12  A  supplemental  bill  was  demur- 
^ble  if  when  filed  after  a  decree  for  an  account  it  pleaded 
matter  which  it  showed  that  the  plaintiff  knew  before  the  de- 
cree ; 13  when  filed  to  introduce  a  claim  founded  upon  a  title 
entirely  distinct  from  that  in  the  original  bill ;  as,  when  a  man 
first  sued  claiming  as  heir-at-law,  and  afterwards  sought  by 
supplemental  bill  to  plead  a  purchase  of  the  interest  of  the  true 
heir-at-law ; 14  and  when  brought  against  a  person  who  neither 
had  nor  claimed  any  interest  in  the  subject-matter  of  the 
orisinal  suit.15 


6  Ibid. 

7  Mackintosh  v.  Flint  &  P.  M.  R. 
Co..  34  Fed.  582. 

8  Shaw  v.  Bill.  05  U.  S.  10,  14, 
-24  L.  ed.  333.  334. 

9Daniell's  Ch,  Pr.  (2d  Am.  ed.) 
168D. 

lODaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1681;  Secor  v.  Singleton,  41  Fed. 
725. 

UMitford's  PI.,  ch.  2,  §  2.  part 
1;  Story's  Eq.  PI.,  §  614:  Stafford 
t.  Howlett.  1  Paige    i  X.   V.  1 .  200. 


12  Henry  v.  Travelers'  Ins.  Co.,  45 
Fed.  299.  302. 

13  Henry  v.  Travelers'  Ins.  Co., 
45  Fed.  299,  30.3. 

14  Tonkin  v.  Lethhridge,  G.  Coo- 
per, 43:  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)    1681. 

is  Baldwin  v.  Mackown,  3  Atk. 
817:  MitfrtM's  PI.,  ch.  2,  §  2,  part 
1;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1681. 


§    233]  PROCEEDINGS   OX  SUPPLEMENTAL   BILES.  77."> 

Any  objections  to  a  supplemental  bill  which  do  not  appear 
upon  its  face  may  be  taken  by  answer,  which,  in  general, 
is  subject  to  the  same  rules  as  answers  t<>  original  bills.16  If 
a  defendant  has  not  answered  the  original  bill,  his  successor 
may  be  called  upon  in  the  supplemental  bill  to  do  so.17  WheD 
that  is  done,  the  usual  course  is  to  include  the  answer  to  the 
original  and  that  to  the  supplemental  bill  in  the  same  plead- 
ing/8 although  it  is  not  absolutely  irregular  to  separate  them.19 
A  defense  cannot  be  pleaded  to  a  supplemental  bill  which  has 
previously  been  pleaded  to  the  original  bill  and  overruled.20  If 
the  plaintiff  wished  to  join  issue  upon  averments  in  the  answer, 
he  might  file  a  replication  to  it.21  If  the  new  matter  in  the 
supplemental  bill  is  not  admitted,  it  must  be  proved,  or  the 
bill  will  be  dismissed  with  costs.22  For  this  purpose  evidence 
may  be  taken  and  a  hearing  had  as  upon  an  original  bill.23 
Discovery  might  be  obtained  by  a  supplemental  bill.24  If  there 
has  been  no  previous  hearing  and  decree,  both  bills  may  be 
brought  to  a  hearing  together,  and  a  single  decree  will  suffice 
for  both.25  If  the  supplemental  bill  is  heard  alone,  the  evi- 
dence taken  in  the  original  suit  may  be  read  in  support  of  or 
in  opposition  to  it.26  The  effect  of  a  supplemental  bill  when 
sustained  is  to  put  the  suit  in  the  same  condition  as  if  the 
supplemental  matter  had  been  alleged  and  the  new  party,  if 
any,  brought  in  at  its  institution.27  A  bill  improperly  styled 
a  supplemental  bill  was  dismissed  upon  a  demurrer,  which 
specified  that  objection,  although  it  might  have  been  sustained 
as  a  bill  in  the  nature  of  a  supplemental  bill.28     Where,  pend- 

16  Daniell's  Cli.  Pr.   (2d  Am.  ed.)  23  Lloyd    v.    Jones.    0    Ves.    27: 

1682.  Daniell'a    Ch.     Pr.     (2d    Am.    ed.) 

I'Vigers  v.  Lord  Audley,  9  Sim.  3683. 

408.  24  Mitford'i?  TL.  ch.   1,  §  3;   Dan- 

isvigers  v.  Lord   Audley.  9  Sim.  iell'a    Ch.    Pr.    (2d    Am.   ed.  I     1684, 

408.  1685. 

'  isSayle  v.  Graham,  5  Sim.  8.  25  Darnell's  Ch.   Pr.    (.2d  Am.  ed.) 

20Pentlarge  v.  Pentlarge,  22  Fed.  1684;  Turrell  v.  Spaeth.  9  Off.  Gaz. 

412;    Scott  v.  La/.cll.   177    Fed.   008.  1063. 

21  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  26DanieH's  Ch.  Pr.  (2d  Am.  ed.) 
1683;   Perkins  v.  Hendryx,  31    Fed.  1660.    1667. 

522.  27|i,i,i. 

22  Daniell's  Ch.  Pr.  (2d  Am.  ed,)  28  Campbell  v.  New  York,  35  Fed. 
1683;  Pedrick  v.  White,  1  Met.  14.  But  see  Roes  v.  City  of  Ft 
(Mass.)   70.  Wayne,   58    Fed.   404,    106. 


<  I 


6 


ABATEMENT  AND  REVIVOR. 


[§  234 


ing  an  appeal,  a  supplemental  bill  was  filed;  it  was  held,  that 
a  mandate  ordering  the  dismissal  of  the  original  bill  did  not 
affect  the  supplemental  pleading.29  The  refusal  of  permission 
to  tile  a  supplemental  bill  will  rarely  be  a  ground  of  refusal 
upon  an  appeal,  when  the  complainant  has  the  right  to  tile 
an  original  bill  for  the  same  relief.30  After  a  reversal,  where 
the  mandate  gives  directions  "to  grant  leave  to  both  sides  to 
adduce  further  evidence,"  the  court  of  first  instance  has  power 
to  permit  the  filing  of  a  supplemental  bill.31 

§  234.  Bills  in  the  nature  of  supplemental  bills  in  gen- 
eral. A  bill  in  the  nature  of  a  supplemental  bill  is  a  bill  filed 
to  obtain  the  benefit  of  a  suit,  either  after  an  abatement  which 
<cannot  be  cured  by  bill  of  revivor  or  a  bill  in  the  nature  of 
a  bill  of  revivor,  or  after  the  suit  has  become  defective  in  cases 
which  do  not  admit  of  a  supplemental  bill  to  supply  that  de- 
fect.1 Cases  frequently  occur  in  practice  where  the  interest  of 
an  original  party  to  a  suit  is  completely  determined,  and  an- 
other person  becomes  interested  in  the  subject-matter  by  a  title 
not  derived  from  the  other,  but  in  such  a  manner  as  to 
make  it  proper  that  the  benefit  of  the  former  proceedings 
should  be  had  by  or  against  the  latter,  without  incurring  the 
expense  of  commencing  an  entirely  new  proceeding.  In  such 
a  case,  the  benefit  of  the  former  proceedings  may  be  obtained 
by  means  of  a  bill  called  an  original  bill  in  the  nature  of  a 
supplemental  bill,  or  a  bill  in  the  nature  of  a  supplemental 
bill.2  Such  a  bill  must  be  filed  to  bring  into  a  suit  the  assignee 
of  a  sole  plaintiff  who  had  acquired  his  interest  during  its 
pendency.3     The  reason  given  for  this  is  the  doctrine  of  main- 


29  Berliner  Cramaphone  Co.  1 
Seaman,  C.  C.  A.,  113  Fed.  750; 
infra,  §  51S. 

30Brookfield  v.  Novelty  Glass 
Mfg.  Co..  C.  C.  A.,   170  Fed.  960. 

31  Rio  Grande  Dam  &  Irriga.1  ion 
Co.  v.  U.  S.,  215  U.  S.  266,  268,  54 
L.  ed.  190.  102. 

§  234.  IMitford's  PL,  ch.  1.  §  3; 
Campbell  v.  New  York,  35  Fed.  14; 
Tappan  v.  Smith,  5  Biss.  73.  But 
see  Seeor  v.  Singleton.  41  Fed.  725. 
726;  Napier  v.  Westerhoff,  153  Fed. 


985;  Haarmann-DeLaire-Schaffer  Co. 
Co.  v.  Leuders,  135  Fed.  120. 

2J)anieirs  Ch.  Pr.  (2d  Am.  ed.) 
1685;   Mitford's  Pi.,  ch.  1,  §  3. 

3Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1067;  Campbell  v.  New  York.  35 
Fed.  14;  Ross  v.  City  of  Ft.  Wayne, 
58  Fed.  404;  s.  c.  on  appeal,  65 
Fed.  466;  Tappan  v.  Smith,  5  Biss. 
73:  George  YV.  Jackson.  Inc.  v. 
Friestedt  Interlocking  Channel  Bar 
Co..  159  Fed.  496;  Pittsburgh.  S.  & 
N.  R.  Co.  v.  Fiske.  C.  C.  A..  178  Fed. 


§    234]         BILLS  IN  NATURE  OF  SUPPLEMENTAL  BILLS.  777 

tenanee,  in  consequence  of  which  "it  is  not  enough  for  the  new 
plaintiff  to  state  that  his  assignor  instituted  a  suit  and  assigned 
to  him  the  benefit  of  it;  he  must  show  that  his  assignor  had 
the  property  in  respect  of  which  the  suit  was  instituted,  and 
that  property  has  heen  assigned  and  carries  with  it  the  right 
to  sue."4  Such  a  hill  may  he  brought  by  the  assignee  of  the 
complainant  to  a  bill  to  enjoin  the  infringement  of  a  patent 
and  for  an  account  of  profits  and  damages,  although  the  as- 
signment was  made,  and  the  hill  in  the  nature  of  a  supple- 
mental hill  was  filed,  after  the  expiration  of  the  patent,  pend- 
ing the  suit,  and  merely  for  the  purpose  of  collecting  dam- 
ages.5 Where  a  majority  of  the  bondholders  had  removed  a 
trustee,  after  he  had  brought  a  suit  for  the  benefit  of  the- 
minority,  the  court  refused  to  permit  the  new  trustee,  who  was 
hostile  to  the  suit,  to  be  substituted  for  the  original  plaintiff 
by  a  bill  in  the  nature  of  a  supplemental  bill.6 

The  assignee  of  a  decree  for  an  injunction  and  an  account 
of  damages  caused  by  the  infringement  of  a  trade-mark  may 
have  the  benefit  of  the  suit  by  filing  an  original  bill  in  the- 
nature  of  a  supplemental  bill.7  An  assignee,  who  files  a  bill 
in  the  nature  of  a  supplemental  bill,  is  ordinarily  entitled  to 
the  benefit  of  all  the  proceedings  in  the  original  suit,  as  against 
the  original  defendants;  but  they  may  avail  themselves  of  any 
equity  or  defense,  which  could  be  urged  against  the  new  com- 
plainant, although  it  did  not  exist  against  the  original  com- 
plainant; and  also  of  any  equity  or  defense,  which  lias  arisen 
since  the  original  bill  was  filed.8  Neither  such  a  hill  nor  a 
supplemental  bill  will  be  sustained  when  filed  hy  a  purchaser  of 
a  railroad  at  a  foreclosure  sale  to  obtain  the  henefit  of  a  decree 
enjoining  the  collection  of  taxes  obtained  hy  stockholders  in  a 

66.  But  see  Hoxie  v.  (air.  ]   Sumin.  Fed.   504:    B.   C.   on   appeal,   03    Fed. 

173;  Sedgwick  v.  Cleveland.  7  Paige  466. 

(N.    Y.)     290;     Murray    v.    Orr    &  6 March  v.   Romaic   114  Fed.  200. 

Lockett  Hardware  Co.,  C.  C.  A.,  153  7  Walter    Baker   &    Co.    v.    Baker, 

Fed.  369.  89    Fed.    673:      But    Bee    New    York. 

4  White    on    Supplement    and    Re-  B.  &  P.  Co.  v.  X.  .1.  C.  S.  &  R.  Co., 

vivor,    126.    174;    Daniell's    Ch.    Pr.  47   Fed.  504: 
(2d  Am.  ed.)    1667.  8  Baarmaan-DeLaire-Scbeffer    Co. 

6  Ross  v.  Citv  of  Ft.  Wayne,  58  v.  Lenders,  135  Fed.  120. 


77- 


ABATEMENT  AND  KEVIVOK. 


[§   235 


suit  brouglit  subsequent  to  the  mortgage.9  So  where  a  defend- 
ant dies  before  appearance  or  a  decree  against  him  pro  confesso, 
his  successor  can  only  be  brought  in  by  a  bill  in  the  nature  of  a 
supplemental  bill,  which,  however,  is  considered  merely  sup- 
plemental as  to  the  defendants.10  Such  a  bill  may  be  filed 
by  a  purchaser  of  the  complainant's  interest  even  after  a  de- 
cree;11 but  where  the  purchase  was  made  after  a  direction  for 
a  decree,  the  bill  should  not  be  filed  until  after  the  decree  is 
entered.12 

§  235.  Frame  of  a  bill  in  the  nature  of  a  supplemental 
bill.  A  bill  in  the  nature  of  a  supplemental  bill  "must  state 
the  original  bill,  the  proceedings  upon  it,  the  event  which  has 
determined  the  interest  of  the  party  by  or  against  whom  the 
former  bill  was  exhibited,  and  the  manner  in  which  the  prop- 
erty has  vested  in  the  person  become  entitled.  It  must  then 
show  the  ground  upon  which  the  court  ought  to  grant  the 
benefit  of  the  former  suit  to  or  against  the  person  so  become 
entitled,  and  pray  the  decree  of  the  court  adapted  to  the  case 
of  the  plaintiff  in  the  new  bill."  1  It  will  not  be  impertinent 
for  it  to  restate  allegations  of  the  bill  or  answer  in  the  original 
suit,  nor  to  charge  new  matter  which  occurred  before  the 
original  bill  was  filed,  for  the  purpose  of  meeting  a  defense  in 
the  original  answer.2  But  a  bill  in  the  nature  of  a  supple- 
mental bill  need  contain  no  more  of  the  allegations  in  the 
original  bill  than  suffices  to  show  a  cause  of  action  against  the 
defendants  to  it.3  Otherwise,  its  form  should  be,  as  far  as 
possible,  in  compliance  with  that  of  an  original  bill.  If,  how- 
ever, its  object  be  merely  to  obtain  the  benefit  of  the  proceed- 
ings in  the  original  suit,  the' want  of  the  difference  of  citizen- 
ship   necessary   to   support    an   independent   original   bill   will 


9  Keokuk  &  S.  W.  R.  Co.  v.  Scot- 
land County..  152  U.  S.  317,  38  L.  ed. 
457. 

10  r.  S.  v.  Fields,  4  Blatchf.  326; 
Crowfoot  v.  Mander.  9  Sim.  396; 
Asbee  v.  Shipley,  M.  &  G.  296; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1673. 

U  Walter  Baker  &  Co.  v.  Baker, 
89  Fed.  673;  Hazleton  T.  R.  Co. 
v.  Citizens'  St.  Ry.  Co.,  72  Fed.  325. 


12  Hazleton  T.  R.  Co.  v.  Citizens' 
St.  Ry.  Co.,  72  Fed.  325. 

§  235.     iMitford's  PL.  ch.  1,  §  3. 

2  Woods  v.  Woods,  10  Sim.  197; 
Atty  Gen.  v.  Foster,  2  Hare,  81; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1667, 
1668. 

3  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1675-1677;  Vigers  v.  Lord  Audley, 
9  Sim.  72. 


§    236]  BILLS  IX   NATURE  OF  STPPI.EMEXTA  I.  BILLS.  779 

not  deprive  the  court  of  jurisdiction  of  it,  provided  the  first 
suit  were  properly  brought.4  A  bill,  wrhich  complies  with  the 
requirements  of  an  original  bill  in  the  nature  "1'  a  supple- 
mental bill,  may  be  sustained  as  one,  although  it  is  styled   a 

supplemental  bill.5 

§  236.  Proceedings  upon  bills  in  the  nature  of  supple- 
mental bills.  A  bill  in  the  nature  of  a  supplemental  bill  is 
filed  in  the  same  manner  as  a  supplemental  bill,  and  the  same 
rule  governs  the  time  of  the  riling  of  pleadings  to  it.1  Other- 
wise, proceedings  upon  bills  in  the  nature  of  supplemental  bills 
resemble  those  upon  independent  original  bills.2  According 
to  Lord  Redesdale,  "a  new  defense  may  be  made;  the  pleadings 
and  depositions  cannot  be  used  in  the  same  manner  as  if  filed 
or  taken  in  the  same  cause;  and  the  decree,  if  any  has  been 
obtained,  is  not  otherwise  of  advantage  than  as  it  may  be  an 
inducement  to  the  court  to  make  a  similar  decree.''  3  As  has 
been  remarked  by  Lord  Eldon,  this  passage  contains  an  ob- 
scuritv  of  language  which  is  due  to  an  obscurity  in  the  subject.4 
But  the  probable  meaning  and  the  view  of  the  matter  be-; 
supported  by  authority  are  that  upon  the  filing  of  what  is  called 
a  bill  in  the  nature  of  a  supplemental  bill,  no  further  benefit  of 
the  proceedings  in  the  original  suit  can  be  obtained  than  would 
be  if  it  were  styled  merely  an  original  bill;  and  the  evidence 
and  admissions  and  the  benefit  of  the  decree  in  the  former  suit 
will  only  be  allowed  when  the  parties  to  the  second  are  in 
privity  with  those  to  the  first  suit.5 

4  Minnesota  Co.   v.   St.   Paul   Co.,  3  Mitford's    PI.,   eh.    1.    §    3.      See 
2    Wall.    609.                                                    O'Brien  v.  VVlieelo.k.   184   V.  S.  450, 

5  Haannann-DeLaireScheffer     Co.       485.  40  L.  ed.  636,  652. 

v.  Leuders,  135  Fed.  120.  See  Ross  4  Lloyd  v.  Jones.  9  Yes.  37.  56. 
v  City  of  Ft.  Wayne,  58  Fed.  404,  BDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
406.  But  see  Campbell  v.  City  of  1085.  1688;  Great  Western  'I'd.  Co. 
New  York.  35  Fed.  14.  v  Purdy,  162  l".  S.  32!).  411  L.  ed. 
*  §  230.  i  Rule  57.  See  §  189.  986.  But  sec  Gteorge  W.  Jackson, 
2  Mexican  Ore  Co.  v.  M.  G.  M.  Inc.  v.  Friestedt  Interlocking  Chan- 
Co.,  47  Fed.  351,  356.  nel  Bar  Co.,  159  Fed.  490. 


CHAPTER  XIV. 


IMPERTINENCE    AND    SCANDAE. 


§  237.  Impertinence.  Impertinence  in  a  pleading  con- 
sists of  the  introduction  of  any  matter  into  the  pleading  which 
is  not  properly  before  the  court  for  decision  at  the  particular 
stage  of  the  suit.1  Facts  not  material  to  the  decision  are  im- 
pertinent.2 Xo  matter  is  impertinent  which  is  material  in  es- 
tablishing the  rights  of  the  parties  or  in  ascertaining  the  relief 
to  be  granted.3  If  an  allegation  in  a  bill,  when  proved,  could 
exercise  any  proper  influence  upon  the  decision  of  the  cause, 
it  cannot  be  said  to  be  impertinent.4  Objections  for  imperti- 
nence are  only  sustained  when  it  is  apparent  that  the  matter 
excepted  to  is  not  material  or  relevant  or  that  the  same  is 
stated  with  needless  prolixity.  If  it  may  be  material,  the  ob- 
jection will  not  be  sustained,  as  that  would  leave  the  pleader 
without  a  remedy;  but  the  allegations  objected  to  will  be  al- 
lowed to  remain  and  the  effect  thereof,  if  found  to  be  true,  de- 
termined on  the  final  hearing.5  Where  the  question  whether 
matter  in  an  answer  was  impertinent  or  not  depended  upon  the 
date  of  the  facts  alleged  and  the  date  was  omitted,  it  was  held 
that  the  answer  must  be  construed  against  the  pleader  and  was 
subject  to  exception  for  impertinence.6  Deductions  from  the 
facts  stated,  for  example,  allegations  concerning  the  legal  ef- 
fect of  instruments,  are  sometimes  proper  in  equity  plead- 
ings and  they  are  then  not  considered  to  be  impertinent.7     It 

§  237.     1  Blanton      v.      Chalmers,  road  Commission  of  Ala.,   171   Fed. 

T 58  Fed.  907.  225. 

2  Chancellor  Kent  in  Woods  v.  5  Independent  Baking  Powder  Co. 
Morrell,  1  J.  Ch.  (X.  Y.)  103,  106.  v.  Boorman.  130  Fed.  726;  Ware- 
See   also  Hood   v.   Inman,   4   J.   Ch.  Kramer  Tobacco  Co.  v.  Am.  Tobacco 

(X.  Y.)    437.  Co..  178  Fed.  117:  supra,  §§  68.  147. 

3  Manhattan  Tr.  Co.  v.  Chicago  6  Greene  v.  Aurora  Bys.  Co.,  158 
HI.  Traction  Co..  188  Fed.  1006.  Fed.  909. 

4  South   &    X.    A.   B.   Co.   v.   Bail-  7  Allen  v.  O'Donald.  23  Fed.  573; 

780 


§  237] 


IMPERTINENCE. 


781 


has  been  said  to  be  permissible  and  it  has  been  customary,  to 
plead  in  answers  in  equity  matters  of  law  as  well  as  matters 
of  fact  that  constitute  a  defense.8  It  is  customary  in  bills  seek- 
ing the  protection  or  enforcement  of  rights  dependent  upon 
complicated  provisions  of  Federal  or  State  statute-,  to  set  forth 
such  statutes,  either  at  length  or  according  to  their  legal  effect; 
and  when  the  complainant  depends  upon  historical  facts,  of 
which  the  court  will  take  judicial  notice,  to  state  such  facts  also. 
Sometimes,  especially  in  patent  cases,9  former  decisions  of  the 
court  are  pleaded.  Although  this  practice  is  not  strictly  cor- 
rect, it  is  still  convenient  for  the  court  as  well  as  counsel,  inas- 
much as  the  case  shown  by  the  bill  is  thereby  made  more  easy 
of  comprehension.  It  seems  that  exceptions  to  such  allegations 
for  impertinence  cannot  be  sustained.10     So,  in  a  patent  case, 


Louisville   &    X.   R.   Co.    v.   Wright, 
190   Fed.   2.52. 

8  Deady,  J.,  Chapman  v.  School 
Dist.  No.  1,  Deady.  108,  110.  See, 
also,  Louisville  &  X.  R.  Co.  v. 
Wright,    190   Fed.   252. 

9  Steam  Gauge  &  Lantern  Co.  v. 
McRoberts,  26  Fed.  705;  Peters  v. 
Chicago   Biscuit  Co.,    142   Fed.   779. 

It  was  held  not  to  be  impertinent 
■when  a  complaint  charged  fraud  in  a 
partition  suit,  for  the  answer  to  set 
forth  facts  to  show  the  good  faith 
and  regularity  of  the  proceedings  in 
the  same.  Mound  City  Co.  v.  Castle- 
man,  171  Fed.  520.  Xor.  when  a 
bill  referred  to  a  decision  of  a  court, 
for  the  answer  to  aver  that  it  in- 
volved no  consideration  of  a  ques- 
tion in  the  pending  suit  and  had  no 
relation  thereto.  Louisville  &.  X.  R. 
-Co.   v.  Wright,    190    Fed.   252. 

10  Wells  v.  Oregon  Ry.  &  X.  Co., 
U  Fed.  561;  S.  c,  8  Sawyer,  600; 
Allen  v.  O'Donald.  23  Fed.  573; 
Steam  Gauge  &  Lantern  Co.  v.  Mc- 
Roberts. 26  Fed.  765;  Peters  v. 
Chicago  Biscuit  Co.,  142  Fed.  779; 
Ware- Kramer  Tobacco  Co.  V.  Am. 
Tobacco  Co.,  178  Fed.  117;  South  & 


X.    A.   R.   Co.   v.   Railroad   Commis- 
sion of  Ala.,  171   Fed.  225. 

In  a  bill  to  enjoin  the  enforce- 
ment of  an  order  of  a  State  rail- 
road commission  for  the  reduction 
of  railroad  charges,  an  allegation 
that  the  reduction  was  made  at 
the  instance  of  the  governor  who 
was  not  a  member  of  the  commis- 
sion; and  quotations  from  his 
message  to  the  legislature,  and 
averments  that  he  had  in  an  ad- 
dress to  the  commission  attacked 
a  decision  of  the  Supreme  Court 
of  the  United  States  in  violent 
language,  were  all  held  to  be  im- 
pertinent J  but  a  statement  of  the 
action  of  the  defendant's  predeces- 
sors upon  the  same  subject,  and 
of  the  defendant's  inaction  against 
other  railroad  companies,  was  held 
to  be  relevant  and  not  impertinent. 
Wilmington  &  W.  R.  Co.  v.  Board 
of  R.  ConVrs,  90  Fed.  3.3.  See  Ein- 
stein v.  Schnebley.  89  Fed.  540.  In 
a  suit  by  a  commercial  exchange, 
to  restrain  the  counterfeiting  or 
simulating  of  the  complainant's 
quotations  of  prices  of  grain  and 
pork,    it    was   held;    that   it   was   i»i- 


'82 


IMPERT1XKXCE  AND  SCANDAL,. 


[:§  m 


allegations  concerning  the  issue  of  foreign  patents  and  the  ac- 
quiescence therein  in  this  and  other  countries,  were  held  not 


pertinent  to  allege  the  number  of 
members    of    the    complainant,    the 

cnst  of  maintaining  and  conducting 
its  operations,  the  manner  in  which 
the  necessary  funds  were  raised,  the 
market  value  of  a  seat  therein,  the 
character  of  the  persons  who  might 
lie  admitted,  the  relations  and  con- 
tracts between  the  complainant 
and  certain  telegraph  companies, 
with  which  it  was  not  claimed 
that  the  defendants  were  in  any 
way  connected ;  and  that  no  per- 
son or  corporation  was  receiving 
market  quotations  from  any  of 
the  telegraph  companies  speciiied. 
without  having  executed  com- 
plainant's written  contract  re- 
straining the  furnishing  of  such 
quotations  to  bucket  shop  opera- 
tors; but  that  paragraphs  were  not 
impertinent,  which  contained  a  re- 
cital of  the  objects  of  the  complain- 
ant's incorporation  and  of  the  pow- 
ers conferred  by  its  charter,  the 
manner  of  its  operations,  the  way 
in  which  information  concerning 
the  sales  made  there  was  distribu- 
ted by  telegraph  companies  through- 
out the  country,  the  time  occupied 
in  the  dissemination  of  this  infor- 
mation, and  the  circumstances 
which  induce  the  complainant  to  re- 
fuse to  allow  its  quotations  to  be 
uiven  to  telegraph  companies,  except 
under  contracts  that  the  latter 
would  not  furnish  the  same  to  per- 
sons who  operated  bucket  shops. 
Board  of  Trade  of  Chicago  v.  Na- 
tional Board  of  Trade  of  Kansas 
City,  154  Fed.  23S.  In  a  bill  by  a 
stockholder  against  his  corporation 
and  its  directors,  to  enjoin  the  en- 
forcement   of    a    contract    made    by 


them,  whereby  the  profits  and  earn- 
ings of  the  corporation  were  fraudu- 
lently diverted  from  its  stockhold- 
ers and  paid  to  one  of  the  direc- 
tors as  royalties  for  the  use  of  a 
worthless  patent.  which  also 
prayed  the  recovery  from  him  of 
the  sums  he  had  already  received 
under  the  contract,  alleging  that 
he  was  practically  insolvent,  and 
asking  that  he  be  enjoined  from 
transferring  his  stock:  it  was  held: 
that  allegations  that  three  of  the 
other  defendant  directors  were  sons 
of  this  defendant,  and  with  him 
constituted  a  majority  of  the  board, 
and  were  corruptly  influenced  by 
him  in  their  directorial  action,  that 
they  had  no  business,  and  were  de- 
pendent upon  him  for  support,  and 
were  living  in  an  expensive  and  ex- 
travagant manner  at  his  cost  are 
not  scandalous,  nor  impertinent. 
Burden  v.  Burden.  124  Fed.  250.  In. 
a  suit  against  an  administrator  and 
others,  to  enforce  an  agreement  by 
an  intestate  to  make  the  plaintiff 
his  heir,  and  to  protect  plaintiff's 
rights  in  the  business  carried  on 
by  such  intestate;  it  was  held:  to 
be  proper  to  allege  that  the  dece- 
dent carried  on  the  business  during 
his  lifetime  in  partnership  with  one 
of  the  defendants:  that  the  same 
became  extremely  profitable  and  its 
good  will  of  great  value:  that  he 
had  trouble  with  his  relatives, 
which  led  to  an  estrangement:  that 
he  left  no  will:  that  administrators 
of  his  estate  were  appointed  in  an- 
other State;  that  complainant  had 
no  notice  of  proceedings  in  the  Pro- 
bate Court,  which  resulted  in  the 
appointment    of    one    of   the   defend- 


§  238] 


SCANDAL. 


TS3 


to  be  impertinent;11  but  it  was  held  that  averments  as  to  de- 
crees obtained  by  consent  against  strangers  to  the  suit,  and  as  to 
interference  proceedings  in  the  patent  office,  with  which  the  de- 
fendants were  not  connected,  were  impertinent.12  Great  liber- 
ality is  allowed  in  actions  founded  on  the  anti-trust  act,  where 
proof  of  a  conspiracy  is  necessary,13  and  in  suits  to  determine 
the  validity  of  statutes  fixing  railroad  rates.14  It  has  been  held 
that  a  short  sentence,  inserted  out  of  abundant  caution,  should 
not  be  expunged  as  impertinent.15  Xeedless-  repetitions  are 
impertinent. 

§  238.  Scandal.  Scandal  is  im^rtinent  matter  which  is 
also  reproachful.1  Scandal  is  impertinent  matter  which  is 
also  criminatory  or  which  otherwise  reflects  upon  the  character 
of  an  individual.2  Usually  nothing  is  considered:  scandalous 
which  is  relevant  or  responsive  to  the  allegations  of  the  bill.3 


ants  as  administrator  in  the  State 
■where  the  suit  was  brought;  that 
the  relatives  are  so  scattered  and 
the  property  so  widely  distributed 
that  it  is  impossible  for  the  com- 
plainant to  join  all  the  parties  in 
interest;  and  that  she  intends  to 
institute  another  action  in  another 
State,  to  restrain  them  from  in- 
terfering with  the  business  there 
carried  on;  but  that  it  was  imper- 
tinent  to  allege;  how  the  stores 
maintained  by  the  decedent  be- 
came valuable;  and  how  interfer- 
ence with  them  in  tlie  manner 
proposed  by  defendants  will  de- 
stroy such  value;  and  that  com- 
plainant is  trying  to  collect  cer- 
tain checks  and  drafts  given  her 
"for  value  during  her  lifetime:  and 
the  administrators  object  and  pro- 
pose to  contest.  Hall  v.  Bridge- 
port Tr.  Co..  122  Fed.  103.  It  has 
been  said  in  England  that  similar 
allegations  are  improper.  Hun  Pr. 
1913,  p.  316. 

11  Peters   v.    Chicago   Biscuit   Co., 
142   Fed.   770. 

12  Western    El.    Co.    v.    Williams, 


Abbott  El.  Co.,  83  Fed.  842.  See 
Board  of  Trade  v.  National  Board 
of  Trade,   154   Fed.  238. 

13  Ware-Kramer  Tobacco  Co.  v. 
Am.  Tobacco  Co.,  178  Fed.  117,  124. 

14  South  &  X.  A.  R.  Co.  v.  Rail- 
road Commission  of  Ala.,  171  Fed. 
225. 

15  Farmers'  L.  &  T.  Co.  v.  X.  P.  R. 
Co.,  76  Fed.  15.  But  see  Florida 
Mhg.  &  Inv.  Co.  v.  Finlayson.  74 
Fed.  671. 

16  Kelly  v.  Boettchcr.  85  Fed.  55, 
60;  Xorton  v.  Woods,  5  Paige  (N. 
Y.),  260;  Camden  &  A.  R.  Co.  v. 
Stewart,  19  \.  .1.  K<\.  343:  Nevada 
Nickel  Syndicate  v.  National  X.  Co., 
86    Fed.    486. 

§  238.  i  Charicelloir  Kent  in 
Woods  v.  Morrell.  1  J.  Ch'.  (X.  V.) 
103,  106.  Sec  also  Hood  v.  Inman. 
4  J.  Ch.  (X.  Y.I  437.  For  an  illus- 
tration of  scandal,  see  the  record  in 
I".  S.  v.  Srhur/.  102  C.  S.  378,  20 
L.  ed.  167. 

2. Manhattan  Tr.  Co.  v.  Chicago 
El.  Traction  Co..   188   Fed.    1006. 

3  Peck  v.  Peck,  Mosely,  45; 
Woods  v.   Monell.  1  J.  Ch.    (X.  Y.) 


784 


IMPERTINENCE  AND  SCANDAL. 


[§  23S 


But  in  an  English  case  brought  by  a  clergyman,  where  the  de- 
fendant included  hi  a  schedule  of  accounts  a  charge  for  money 
paid  bv  him  for  an  order  of  filiation  of  a  bastard  made  upon 
the  plaintiff,  the  court  held  the  item,  although  relevant,  a  prop- 
er subject  of  exception,  because  the  mode  of  bringing  it  forward 
was  intended  to  drive  the  plaintiff  out  of  his  parish.4  It  may 
be  doubted  whether  so  much  respect  for  the  cloth  would  be 
shown  by  an  American  court.  Matters  that  are  relevant  are 
not  scandalous,  unless  expressed  in  a  needlessly  offensive  man- 
ner.5 It  has  been  held:  that  an  allegation  that  a  proposed  de- 
cree was  made  "without  a  full  reading  of  the  proofs  in  the 
cause,  or  a  careful  consideration  of  the  briefs  of  the  counsel 
filed  therein,"  and  not  "after  full  consideration,"  is  not  scan- 
dalous, since  it  contains  no  imputation  upon  the  court;6 
and  that  an  averment  in  an  answer  to  an  action  upon  a  judg- 
ment, that  the  judgment  was  fraudulent  and  had  been  ob- 
tained by  false  and  perjured  testimony,  was  not  impertiment 
or  scandalous.7  Allegations  concerning  motives  are  scandalous 
when   not   material.8     When   material,    they   are   not   scanda- 


103,  106;  Fisher  v.  Owen,  L.  R.  8 
Ch.  D.  645:  McNulty  v.  Wiesen.  130 
Fed.  1012;  Story's  Eq.  PI.,  §  862; 
Portsmouth  v.  Fellows,  5  Mass.  450. 
In  a  bill  to  remove  the  directors  of 
a  bank  for  paving  a  loss  resulting 
from  an  illegal  loan  made  by  the 
officers,  it  was  held  proper  to  allege 
the  previous  unlawful  management 
of  the  bank.  Wilkinson  v.  Dodd,  42 
N.  J.  Eq.  234;  s.  c.  as  Dodd  v.  Wil- 
kinson, 42  X.  J.  Eq.  647.  Allega- 
tions to  meet  charges  of  bad  faith 
made  in  the  bill  were  held  not  scan- 
dalous. Mercantile  Tr.  Co.  v.  Mo., 
K.  &  T.  Ry.  Co..  84  Fed.  379. 

4Atty.  Gen.  v.  Hewit.  in  Chanc, 
J.ily.  1801;  cited  in  Cooper's  Eq. 
PI." 31 9:    Story's  Eq.  PL,   §  862. 

5  Burden  v.  Burden.  124  Fed.  250. 

6  Miller  v.  Buchanan.  5  Fed.  366. 

7  Manhattan  Tr.  Co.  v.  Chicago 
El.  Traction  Co..  1S8  Fed.  1006. 

8  South  &  N.  A.  R.  Co.  v.  Railroad 


Commission  of  Ala.,  171  Fed.  225,. 
averments  of  the  motive  of  State 
officers  and  legislature  prescribing 
and  enacting  a  law:  U,  S.  v.  Ket- 
tenbacb,  175  Fed.  463.  holding  that 
in  a  suit  to  cancel  land  patents 
under  the  timber  and  stone  act  ( Act 
of  June  3,  1878.  c.  151,  20  St.  at 
L.  89,  Comp.  St.  1901,  p.  1545)  for 
fraud,  charging  that  the  entrymen 
did  not  make  their  entries  in  good 
faith,  but  with  intent  to  transfer 
their  rights  to  others,  charges  of 
transfers  and  acts  indicating  a  mo- 
tive at  the  time  final  proof  was 
made  to  transfer  the  land  were  sub- 
ject to  exception  for  impertinence, 
since  the  illegal  purpose  in  the 
primary  application  was  the  sole 
test  of  good  faith.  It  was  further 
held  that  allegations  setting  forth 
the  rules  and  regulations  of  the  De- 
partment of  the  Interior  prescribing 
interrogatories     to     applicants     for 


§    239]       STRIKING   OUT   SCANDAL   AND   IMPERTINENCE. 


785 


lous.9  Allegations  of  want  of  good  faith  in  the  entry  of  the 
land  were  impertinent,  since  good  faith  in  the  primary  appli- 
cation for  entry  was  not  averred.10  Matter  which  is  purely 
evidentiary  is  ordinarily  held  to  be  impertinent.11  Threats  to 
violate  an  injunction,  if  granted,-  were  held  not  to  be  imperti- 
nent, nor  scandalous,  in  a  bill  praying  such  injunction.12  Aver- 
ments that  power  conferred  by  a  statute  on  a  railroad  commis- 
sion was  so  used  as  to  discriminate  against  the  complainants- 
and  to  favor  their  rivals,  as  a  reward  for  dismissing  suits 
brought  by  the  latter  to  test  the  law's  validity,  are  neither  im- 
pertiment  nor  scandalous.13 

§  239.  Striking  out  scandal  and  impertinence.  Before 
the  Equity  Rules  of  1912,  objections  to  matter  as  impertinent 
or  scandalous  were  raised  by  exceptions,  which  were  regularly- 
referred  to  a  master.1  The  Equity  Rules  of  1912  provide: 
"The  right  to  except  to  bills,  answers,  and  other  proceedings  for 
scandal  or  impertinence  shall  not  obtain,  but  the  court  may, 
upon  motion  or  its  own  initiative,  order  any  redundant,   im- 


limber  land  at  tlie  final  proof  and 
the  scope  of  the  alleged  conspiracy 
and  other  acts  relating  solely  to 
such  final  proofs,  together  with  al- 
legations of  the  inducement  by  the 
defendant  of  the  entrymen  to  make 
false  answers  to  such  questions,  and 
the  false  answers  made  accordingly 
"for  the  purpose  and  to  the  end  that 
the  said  officers  and  the  other  offi- 
cers of  the  United  States  concerned 
and  charged  with  the  administra- 
tion of  the  laws  governing  the  dis- 
posal of  the  public  lands  might,  and 
should,  thereby  be  deceived,  imposed 
upon,  and  fraudulently  misled,  and 
*  so  prevented  from  further  inquiry, 
investigation,  and  consideration  con- 
cerning such  entries";  were  all  im- 
pertinent. Ibid.  175  Fed.  403.  405. 
An  allegation  is  an  answer  that 
plaintiff  brought  this  suit  in  a  State 
distant  from  that  of  the  defendants' 
residence  for  the  purpose  of  harass- 
ing them  and  involving  them  in 
Fed.   Prac.  Vol.  I.— 50. 


large  expense  was  held  to  be  im- 
pertinent. YVhittemore  v.  Pattenr 
84  Fed.  51. 

9  Portsmouth  v.  Fellows,  5  Yladd. 
450.  holding  that  allegations  that  a. 
trustee  was  actuated  by  corrupt  and' 
improper  motives  were  not  scandal- 
ous or  impertinent  in  a  suit  by  the 
beneficiaries  to  remove  him. 

10  U.  S.  v.  Kettenbach,  175  Fed. 
4G3. 

11  Ware-Kramer  Tobacco  Co.  v. 
American  Tobacco  Co.,  178  Fed.  117. 
But  see  South  &  N.  A.  P.  Co.  v. 
Railroad  Commission  of  Ala.,  171 
Fed.  225. 

12  South  &  N.  A.  R.  Co.  v.  Rail- 
mini  Commission  of  Ala.,  171  Fed. 
225. 

13  Ibid. 

§  239.  iFq.  Rules  of  1842.  20 
and  27:  Langdon  v.  Coddanl.  3 
Story.  13;  Hood  v.  Inman.  4  J.  Ch. 
(N.  Y.)  437:  Foster's  Fed.  Pr.,  4th. 
ed..  §§  08,   147. 


T8G 


IMPERTINENCE  AND  SCANDAL. 


[§  239 


pertinent  or  scandalous  matter  stricken  out,  upon  such  terms  as 
the  court  shall  think  lit.'"  2  Before  the  adoption  of  these  rules, 
the  court  had  power  to  expunge  scandalous  matters  on  its 
own  motion  at  any  time.3  Under  Equity  Rule  21,  it  has  not  yet 
been  decided  whether,  in  this  manner,  objections  to  the  suffi- 
ciency in  law  of  part  of  a  charge  in  a  bill  or  part  of  a  defense 
in  an  answer  can  be  raised.  Under  the  former  practice,  it  was 
held  that  such  matter  in  a  bill4  or  answer5  might  be  expunged 
bv  motion.  But  these  cases  have  not  been  generally  followed,6 
and  it  was  sell  settled  that  mere  insufficiency  of  matter  in  an 
answer  that  was  responsive  could  not  be  tested  by  exception  7  or 
bv  demurrer,8  unless  it  was  an  erroneous  conclusion  of  law.9 
The  Equity  Rules  of  1912,  however,  provide:  that  the  defend- 
ant may  move  to  dismiss  any  part  of  the  bill- upon  five  days  no- 
tice; and  that  any  point  of  law  going  to  the  whole  or  a  material 
part  of  the  cause  or  causes  of  action  stated  in  the  bill  or  de- 
fense, theretofore  presentable'  by  plea  in  bar  or  abatement,  may 
be  separately  heard  and  disposed  of  before  final  hearing  in  the 
discretion  of  the  court ; 10  and  that  if  an  answer  sets  up  an  affirm- 
ative defense,  the  sufficiency  of  the  same  may  be  tested  upon 
motion  to  strike  out,  upon  five  days'  notice  or  such  further  time 
as  the  court  may  allow.11     "Exceptions  for  insufficiency  of  an 


2Eq.  Rule  21. 

3  Kelly  v.  Boettclier,  85  Fed.  55; 
Ex  parte  Simpson,  15  Yes.  476; 
Daniell's  Ch.  Pr.  (2nd  Am.  ed,)  402, 
403;  Story's  Eq.  PI.,  §  270.  See. 
also,  Langdon  v.  Goddard.  3  Story, 
IS. 

4Hobbs  Mfg.  Co.  v.  Gooding,  C. 
C.  A.,  170  Fed.  259. 

'■>  Savings  &  Tr.  Co.  v.  Bear  Valley 
Irr.   Co.,  112   Fed.  693,  702,  704. 

6  In  l'.  S.  v.  Kettenbach.  175  Fed. 
463,  beld  that  such  a  motion  to 
strike  out  part  of  an  amended  bill 
could  not  be  made.  In  Ware- 
Kramer  Tobacco  Co.  v.  Am.  Tobacco 
Co.,  178  Fed.  117,  123.  held  that 
such  a  motion  could  not  be  made 
to  test  the  sufficiency'  of  the  com- 
plaint. 


7  Walker  v.  Jack,  C.  C.  A.,  88 
Fed.  576.  31  C.  C.  A.  462:  Greene 
v.  Aurora  Rys.  Co..  158  Fed.  909. 

8  Crouch  v.  Kerr,  38  Fed.  549 ; 
Grether  v.  Wright,  C.  C.  A.,  75  Fed. 
742.  23  C.  C.  A.  498,  43  U.  S.  App. 
770;  Besson  &  Co.  v.  Goodman,  147 
Fed.  887;  Blanton  v.  Chalmers,  158 
Fed.  907;  Louisville  &  X.  R.  Co.  v. 
Wright,  190  Fed.  252 

9  Adams  v.  Bridgewater  Iron  Co., 
6  Fed.  179;  Bower-Barff  R.  I.  Co.  v. 
Wells  R.  I.  Co..  43  Fed.  391.  But 
sec  Ford  v.  Douglas,  5  How.  143, 
165.  12  L.  ed.  89.  99;  Harrison  v. 
Perea,  168  U.  S.  311,  42  L.  ed.  478; 
s.  c,  below,  7  Xew  Mexico,  666. 

10  Eq.  Rule  29. 
"  Eq.  Rule  33. 


§    239]       STRIKING   OUT   SCANDAL    AND    IMPERTINENCE.  787 

answer  are  abolished.'"12  "If  found  insufficient  but  amendable 
the  court  may  allow  an  amendment  upon  terms,  or  strike  out  the 
matter/' 13 

Under  the  former  practice,  matter  that  otherwise  might  have 
been  considered  to  be  impertinent  or  scandalous  was  not  stricken 
out  when  intermingled  with  essential  allegations  so  that  their 
omission  would  render  a  sentence  without  meaning.14  Neither 
scandal,  nor  impertinence,  however  gross,  is  a  ground  for  dis- 
missing the  whole  bill,  it  being-  a  maxim  of  pleading  that  utile 
per  inutile  non  vitiatur.1*  ruder  the  former  practice,  it  was 
held  that  an  exception  for  impertinence  must  be  allowed  in  the 
whole  or  not  at  all.16 

12Ibjd.  401.     See.  also.  Pacific  R.  of  Mo.  v. 

13  Ibid.  Mo.  Pac.  Ry.  Co..  Ill   l".  S.  5(1.-).  .lie, 

14  Ware-Kramer    Tobacco    Co.    v.       522.  28  L.  ed.  498.  502.  50-1. 

Am.  Tobacco  Co.,  178  Fed.  117,  123.  16  Cbapman     v.     School     District, 

15  Darnell's  Ch.  Pr.    (2d  Am.  ed.)        Deady,  108,  117. 


CHAPTER  XV. 

MOTIONS  TO  MAKE  PLEADINGS  MORE  DEFINITE  AND  CERTAIN  AND 

BILLS   OF   PARTICULARS. 

§  240.  Distinction  between  motions  to  make  pleadings 
more  definite  and  certain  and  bills  of  particulars.  The 

Equity  Rules  provide:  "A  further  and  better  statement  of 
the  nature  of  the  claim  or  defense,  or  further  and  better  par- 
ticulars of  any  matter  stated  in  any  pleading',  may  in  any  case 
be  ordered,  upon  such  terms,  as  to  costs  and  otherwise,  as  may  be 
just."  l  The  distinction  between  these  two  kinds  of  relief  is  not 
clear.  In  Wisconsin  it  has  been  held  that  there  is  no  such  dis- 
tinction.2 In  Xew  York,  an  order  will  be  made  directing  a 
pleading  to  be  made  more  definite  and  certain  only  when  its 
precise  meaning  or  application  is  not  clear.3  Matters  of  time, 
place  and  circumstances,  unless  they  constitute  material  parts 
of  a  cause  of  action  or  a  defense,  can  only  be  obtained  by  a  bill 
of  particulars.  It  has  been  held  that  items  of  an  account  can 
only  be  obtained  by  a  bill  of  particulars.4 

§  241.  Motions  to  make  pleadings  more  definite  and 
certain.  A  demurrer  for  lack  of  certainty  to  the  whole  bill  or 
to  a  part  thereof  took  the  place  now  occupied  by  a  motion  to 
make  the  1  > i  1 1  more  definite  and  certain.1     Such  demurrers  were 


§  240.     1  Eq.  Rule  20. 

2  Conover  v.  Knight,  84  Wise.  (13(1. 
042.  54  X.  E.  1002. 

3  Tilton  v.  Beecher,  50  X.  Y.  170, 
17  Am.  Rep.  337;  Dumar  v.  Wither- 
bee.  88  X.  Y.  App.  Div.  181,  84  X. 
Y.  Suppl.  CO!).  See  Cook  v.  Matte- 
son,  33  X.  Y.  St.  Rep.  497;  Jack- 
man  v.  Lord,  56  Hun  (X.  Y.)  192; 
Rouget  v.  Haight,  57  Hun  (X.  Y.) 
119;  Madden  v.  Underwriting  Pub. 
Co.,  10  Misc.   (X.  Y.)   27;  Harring- 

7 


ton  v.  Stillman.  120  App.  Div.  (X. 
Y.)    G59,  105  X.  Y.  Supp.  75. 

4  Clegg  v.  Am.  Xewspaper  Union, 
7  Abb.  X.  C.  (X.  Y.)  59;  St.  John 
v.  Beers,  24  How.  Pr.  (X.  Y.)  377. 
Contra,  MacAdam  v.  Scudder,  127 
Mo.  345,  30  S.  W.  168;  Meyer  v. 
Chambers,  68  Mo.  626;  Gfeller  v. 
Graefemann-,  64  Mo.  App.  162. 

§  241.  1  Chicago,  M.  &  St.  P.  R. 
Co.  v.  Pullman  P.  C.  Co.,  50  Fed. 
24;    Green    v.   Terwilliger,   56    Fed. 


88 


241] 


TO   MAKE   PLEADINGS    MORE    DEFINITE. 


789 


especially  favored  as  regards  allegations  of  fraud.2  Such  mo- 
tions have  been  granted  in  the  case  of  alternative  averments ; 3 
or  a  failure  to  show  the  nature  or  source  of  a  title  pleaded  ; 4 
or  whether  a  contract  was  oral  or  in  writing; 5  or  in  what  a  fail- 
ure of  consideration  consisted;6  or  in  what  character  the  de- 
fendant was  sued ; 7  and  as  to  allegations  of  time  or  place, 
which  were  material  parts  of  the  cause  of  action  or  defense  as 
to  which  the  motion  was  made.8  Such  motions  have  also 
been  granted  when  denials  were  indefinite,9  and  when  knowl- 
edge or  information  was  denied  concerning  matters  presumptive- 


384;  Thomas  v.  Nantahala.  M.  &  T. 
Co.,  C.  C.  A.,  58  Fed.  485.  In  an 
action  for  damages  because  of  the 
infringement  of  a  patent,  the  court 
ordered  the  plaintiff  to  make  his 
complaint  at  common  law  more  defi- 
nite and  certain  so  as  to  show 
which  of  several  patents,  one  of 
which  had  expired,  the  defendant's 
articles  infringed.  Fischer  v.  Auto- 
mobile Supply  Mfg.  Co.,  199  Fed. 
191. 

2  Rorback  v.  Dorsheimer.  25  N. 
J.  Eq.  516,  518;  Mason  v.  Daly.  117 
Mass.  403;  James  v.  City  Investing 
Co.,  188  Fed.  513;  §  137,  supra. 
See  Patton  v.  Whitney.  5  N.  Y.  St. 
Rep.  845;  Clafiin  v.  Smith,  13  Abb. 
N.  C.  (X.  Y.)  205,  4  Civ.  Pro.  R. 
(X.  Y.)  240,  66  How.  Pr.  (N,  Y.) 
168.  Contra,  Williams  v.  Folsom, 
26  Abb.  X.  C.  (X.  Y.)  374.  37  N. 
Y.  St.  Rep.  635. 

3  Hasberg  v.  Moses,  81  X.  Y.  App. 
Div.  199,  80  X.  Y.  Supp.  867;  Cor- 
bin  v.  George,  2  Abb.  Pr.  (X.  Y.) 
465. 

4  Livingston  v.  Ruff,  65  S.  C.  284, 
43  S.  E.  678;  Waldo  v.  Milroy,  19 
Wash.  156,  52   Pac.   1012. 

5  Xew  York  First  Presb.  Church 
v.  Kennedy,  72  X.  Y.  App.  Div.  82, 
76  X.  Y.  Supp.  284. 

6  Griffith  v.  Wright,  21  Wash.  494, 
58  Pac.  582. 


7  Seasongood  v.  Fleming,  74  Hun 
(X.  Y.)   639,  26  X.  Y.  Supp.  831. 

8  Pierce  v.  Baird,  48  Ind.  378: 
Melvin  v.  St.  Louis,  etc.,  R.  Co.,  89 
Mo.  106,  1  S.  W.  286;  People  v. 
Ryder.  12  X.  Y.  433;  Mutual  L. 
Ins.  Co.  v.  Raymond.  118  X.  Y.  App. 
Div.  828,  103  X.  Y.  Supp.  839; 
Pigone  v.  Lauria.  115  X.  Y.  App. 
Div.  286,  100  X.  Y.  Supp.  976; 
Cerro  De  Pasco  Tunnel,  etc.,  Co.  v. 
Haggin,  106  X.  Y.  App.  Div.  401 
(action  for  libel);  Warner  v. 
James,  94  N.  Y'.  App.  Div.  257.  87 
X.  Y.  Supp.  976;  Dumar  v.  Wither- 
bee,  88  X.  Y.  App.  Div.  181.  84  X. 
Y.  Supp.  669;  Bennett  v.  Lawrence. 
71  X.  Y.  App.  Div.  413,  75  X.  Y. 
Supp.  902;  Dexter  v.  Fulton,  86 
Hun  (X.  Y.)  433,  33  X.  Y.  Supp. 
901  ;  Barlow  v.  Pease,  5  Hun  ( X. 
Y.)  564]  McGehee  v.  Cooke,  55 
Misc.  (X.  Y.)  40.  105  X.  Y.  Supp. 
60:  Rosenthal  v.  Rosenthal,  10  X. 
Y.  Supp.  455;  Lynch  v.  Walsh,  11 
X.  Y.  Civ.  Proc.  446;    31    Cyc.  650. 

9  Snyder  v.  Free,  114  Mo.  360,  21 
S.  W.  847;  Pfaudler  Process  Fer- 
mentation Co.  v.  McPherson,  3  N. 
Y.  Supp.  609;  Burley  v.  German 
Am.  Bank,  5  X.  Y.  Civ.  Proc.  172: 
O'Brien  v.  Seattle  Ice  Co..  43  Wash. 
217,  86  Pac.  399:  Borsuk  v.  Plan- 
ner, 93  X.  Y.  App.  Div.  306,  87   X 


790 


MOTIONS  TO  CURE  UXCER TAJ  XTY. 


[§  241 


ly  within  the  knowledge  of  the  pleader.10  Under  the  practice 
of  the  different  States  it  has  been  held :  that  a  motion  to  make 
:i  pleading  more  definite  and  certain  will  not  be  granted  when 
the  indefinite  allegations  are  immaterial,11  or  surplusage;12  nor 
whore  the  uncertainty  has  been  removed  by  allegations  in  a  sub- 
sequent part  of  the  pleading ; 13  nor  where  the  details  demanded 
pertain  to  the  case  or  defense  of  the  moving  party.14  A  few 
cases  hold:  that  the  motion  will  not  be  granted  where  it  ap- 
pears that  the  matter  demanded  is  not  within  the  reach  of 
the  pleader,15  although,  in  one  case,  it  was  held  that  the  objec- 
tionable allegations,  if  not  sufficiently  definite,  should  be  strick- 
en out;16  or  where  it  appears  that  the  moving  party  has  suffi- 
cient information  upon  the  subject,17  or  as  much  information 
as  the  pleader.18 


Y.  Supp.  851  ;  Morgan  v.  Sammons, 
66  S.  C.  388,  44  S.  E.  966. 

10  Winchester  v.  Browne.  11  N. 
Y.  Supp.  614,  25  Abb.  N.  Cas.  148; 
Hardman  v.  Cincinnati,  etc.,  R.  Co., 
0  Ohio  Dec.  (Reprint)  544,  14  Cine. 
L.   Bui.  346. 

U  Smith  v.  Trafton,  3  Robertson 
(X.  Y.)  709;  Maretzek  v.  Cauldwell. 
2  Robertson   (X.  Y.  i    715. 

12  Choctaw,  etc.,  R.  Co.  v.  Rolfe, 
76  Ark.  220.  88  S.  Wi  870;  Knox 
v.  Trafalet.  94  Ind.  346:  Indiana 
Stone  Co.  v.  Stewart,  7  Ind.  App. 
563,  34  X.  E.  1019;  Sehoonover 
v.  Hinckley,  46  Iowa.  207:  David- 
son v.  Seligman.  51  X.  Y.  Super.  Ct. 
47:  Pearce  v.  Weidemeyer.  52  Misc. 
(X.  Y.)  456,  102  X.  Y.  Supp.  505; 
Cook  v.  Matteson,  11  X.  Y.  Supp. 
572:  Parstiall  v.  Tillou.  13  How.  Pr. 
I  X.  Y.)  7:  Shoemaker  v.  Dayton, 
etc.,  R.  Co.,  10  Ohio  Dec.  (Reprint) 
252,  19  Cine.  L.  Bui.  322;  Mc'Car- 
ville  v.  Boyle.  89  Wis.  651.  02  X. 
VY.  517;  Spensley  v.  Janesville  Cot- 
ton Mfg.  Co..  02  Wis.  549,.  22  X.  W. 
574:   31   Cyc.  047. 

13  Barron  v.  Pittsburg  Plate  Glass 


Co.,   10  Ohio  S.  &  C.  PL  Dec.  114, 
7  Ohio  X.  P.  528. 

14Yanderveer  v.  Moran.  79  Xeb. 
431.  112  X.  W.  581;  Anonymous,  4 
Ohio  Dec.  (Reprint)  234.  1  Clev.  L. 
Rep.   148. 

15  Corns  v.  Clouser.  137  Ind.  201, 
36  X.  E.  848:  Louisville,  etc..  R. 
Co.  v.  Balchj  105  Ind.  93,  4  X.  E. 
288;  Wheelock  v.  Barney,  27  Ind. 
462 ;  Baltimore,  etc.,  R.  Co.  v.  Coun- 
tryman, 16  Ind.  App.  139,  44  X.  E. 
205;  Atchison,  etc..  R.  Co.  v.  Davis, 
70  Kan.  578.  79  Pac.  130:  Orth  v. 
St.  Paul.  etc..  R.  Co.,  43  Minn.  208, 
45  X.  W.  151  :  Kellogg  v.  Baker.  15 

CO 

Abb.  Pr.   (X.  Y.)   286. 

16  Pugh  v.  Winona,  etc..  R.  Co., 
29  Minn.  390.   13  X.  W.  189. 

17  St.  Louis,  etc.,  R.  Co.  v.  French, 
56  Kan.  584.  44  Pac.  12;  West  v. 
O'Neill,  14  Misc.  (X.  Y.)  235.  35 
X.  Y.  Supp.  714:  People  v.  Xew 
York  City  Cent.  Under-Ground  R. 
Co..  15  X.  Y.  Supp.  225. 

18  Dr.  Blair  Medical  Co.  v.  U.  S. 
Fidelity,  etc..  Co..  I  Iowa  1902)  89 
X.  W.  20;  Booco  v.  Mansfield,  66 
Ohio  St.  121.  04  X.  E.  115:  Herk- 
lotz   v.   Chase.    32    Fed.    433:    Union 


242] 


BILLS   OF    PARTICULARS* 


791 


§   242.   Bills  of  particulars.  15 ills  pf  particulars  were  former- 
ly unknown  to  equity  practice,1  although  they  were  frequently 

ordered  in  actions  at  common  law.     Where  domination  and  un- 
due influence  was  alleged,  the  plaintiff  has  been   required   to 

set  forth  the  nature  of  her  claim  of  domination  and  the  par- 
ticulars of  the  undue  influence  which  she  claimed  existed, 
whether  the  same  was  exercised  by  threats,  actual  fraud  or  con- 
cealment, and  to  specify  the  nature  of  the  threats,  fraud  con- 
cealment, or  other  instrumentality.2  Where,  in  a  suit  to  set 
aside  a  release  as  fraudulent,  the  answer  set  forth  that  the 
release  was  in  consideration  of  a  large  sum  of  money  advanced 
by  the  defendant  to  the  plaintiff,  a  bill  of  particulars  was  or- 
dered as  to  the  amount  of  such  advances.3  A  hill  of  particulars 
is  usually  ordered  when  a  fiduciary  relation  exists.4  A  hill  of 
particulars  will  not  be  ordered  concerning  immaterial  allega- 
tions,5 nor  concerning  allegations  as  to  which  the  burden  qi 
proof  is  on  the  applicant.6  In  England,  it  has  been  held  that 
the  knowledge  by  the  party  is  no  bar  to  his  motion  for  a  bill  of 
particulars.7     The  rule  in  Hew  York  seems  to  be  otherwise,.8 


Gold  Min.  Co.  v.  Crawford.  29  Colo. 
511,  69  Pac.  000:  Barron  v.  Pitts- 
burg Plate  Glass  Co..  10  Ohio  S.  & 
C.  PI.  Dec.  114.  7  Ohio  N.  P.  528  -. 
Steelman  v.  Quaker  City  F.  Ins.  Co., 
10  Pa.  Co.  Ct.  362;   31  Cye.  646. 

§  242.  i  See  Cornell  v.  Boatwick, 
3  Paige   t  X.  Y.)    160. 

2  Davis  v.  Davis,  (Lehman.  •)..  X. 
Y.  Sup.  Ct.)  X.  Y.  L.  J.  .March  2, 
1012.  In  an  action  for  conspiracy, 
the  plaintiff  was  required  to  give  a 
hill  of  particulars  stating  the  re- 
spects in  which  the  defendant's  acts 
w.mc  unlawful  and  the  manner  of 
their  combination  or  agreement  to 
injure  plaintiff,  but  not  of  the  dam- 
ages suffered  by  the  plaintiff  when 
there  was  no  claim  of  special  dam- 
ages. Patterson  v.  Corn  Exch  nge 
of  Buffalo.  107    Fed.  686. 

3  Wefter  v.  Moouev.  0  X  Y.  St. 
Rep.  651. 


4  Zierenberg  v.  Labouchere.  ( 1893  ) 
2  Q.  B.  183. 

5  Cave  v.  Torre,  54  L.  T.  515: 
Gibbons  v.  Norman,  2  Times  Rep. 
676. 

6  James  v.  Radnor  County  Coun- 
cil, 6  Times  Rep.  40:  Roberts  v. 
Owen.  6  Times  Rep.  172. 

7Harbord  v.  Monk.  88  I..  I.  411. 
But  sec  Kcogh  v.  Incorporated  Den- 
tal Hospital  of  Ireland.  (  1910)  2 
Irish    R.    166. 

8  Powers  v.  Hughes.  39  X.  Y. 
Supr.  4S2:  Blackie  v.  Xeilson.  •'. 
Bosw.  I X.  Y.)  681;  Young  v.  De- 
Mott.  1  Barb.  I  X.  Y.  >  30;  EToening- 
haus  v.  Cbaleyer,  22  X.  Y.  St.  Bep. 
528:  Fink  v.  .letter,  38  Hun  (X. 
Y.i  16:?:  Wigand  v.  Dejonge.  is 
Hun  (X.  Y.i  405:  Passavant  v. 
Si.kle.  14  Civ.  Fro.  R.  (X.  Y.i  57: 
Train  v.  Friedman,  4  Civ.  Pro.  R. 
iX.  Y.)    109;    Stevena   v.  Webb,    12 


■92 


MOTIONS  FOR  BILLS  OF  PARTICULARS. 


[§  243 


§  243.  Practice  upon  motion  for  bill  of  particulars.  It 
is  the  better  practice  to  precede  a  motion  for  a  bill  of  particulars 
by  a  demand  for  such  a  bill.1  The  New  York  rule  is  that  the 
application  must  be  accompanied  by  an  affidavit  showing  that 
the  moving  party  has  no  knowledge  or  information  respecting 
the  matters  as  to  which  the  particulars  are  demanded  and  has 
no  means  of  obtaining  information  in  regard  thereto.2  The 
affidavit  must  be  made  by  the  party  and  not  by  his  attorney,3 
unless  it  appears  that  the  attorney  is  the  only  person  who  has 
knowledge  of  all  the  facts  therein  alleged,  and  that  it  is  im- 
possible to  obtain  the  party's  affidavit.4  The  affidavit  must 
further  show  that  the  allegations,  as  to  which  particulars  are 
asked,  are  denied  by  the  party  applying  for  the  order.5 


Daly  (X.  Y.)  88,  4  Civ.  Pro.  R. 
(X.  Y.)  04:  Butler  v.  Mann,  9  Abb. 
X.  C.  (X.  Y.)  49:  Belasco  v.  Klaw, 
96  App.  Div.   (X.  Y.)    268. 

§  243.     1  See  31  Cyc.  583. 

2Coolidge  v.  Stoddard,  120  X.  Y. 
App.  Div.  641.  105  X.  Y.  Supp.  544; 
Constable  v.  Hardenbergh,  76  Hun 
(N.  Y.)  434,  27  X.  Y.  Supp.  1022: 
Webster  v.  Fitchburg  R.  Co.,  32 
Misc.  (X.  Y.)  442,  66  X.  Y.  Supp. 
220;  Dorgan  v.  Sebeer,  31  Misc. 
(X.  Y.)  801,  62  X.  Y.  Supp.  1030 
(affirmed  in  31  Misc.  (X.  Y.)  829, 
64  X.  Y.  Supp.  383)  ;  Bowman  Cycle 
Co.  v.  Dyer,  23  Misc.  (X.  Y.)  620, 
52  X.  Y.  Supp.  159;  Yilliers  v. 
Third  Ave.  R.  Co..  22  Misc.  (X.  Y.) 
17,  48  X.  Y.  Supp.  614;  Wales  Mfg. 
Co.  v.  Lazzaro.  19  Misc.  (X.  Y.) 
477.  43  X.  Y.  Suppl.  1110  {reversing 
IS  Misc.  (X.  Y.i  352.  41  X.  Y. 
Supp.  1134)  :  Garfield  Xat.  Bank  v. 
Peck.  1  Misc.  (X.  Y.)  126.  20  X. 
V.  Supp.  650;  Gfridley  v.  Gridley.  7 
X.  Y.  Civ.  Proc.  215;  Orvis  v.  Dana, 
1  Abb.  X.  Cas.   (X.  Y.)   268. 

3  Toomey  v.  Whitney,  81  X.  Y. 
App.  Div.  441.  80  X.  Y.  Supp.  820: 
Mungall  v.  Bursley,  51  X.  Y.  App. 
Div.  380,  64  X.  Y.  Supp.  674:  Stev- 


ens v.  Smith,  38  X.  Y.  App.  Div. 
119,  56  X.  Y.  Supp.  540;  Mayer  v. 
Mayer,  29  X.  Y.  App.  Div.  393,  51 
X.  Y.  Supp.  1079;  Yan  Olinda  v. 
Hall,  82  Hun  (X.  Y.)  357,  31  X. 
Y.  Supp.  495;  Gallerstein  v.  Man- 
hattan R.  Co..  27  Misc.  (X.  Y.) 
506,  58  X.  Y.  Supp.  374  (reversing 
26  Misc.  (X.  Y.)  852,  57  X.  Y. 
Supp.  394:  Mori  v.  Pearsall,  14 
Misc.  (X.  Y.i  251.  35  X.  Y.  Supp. 
829;  Groff  v.  Hagan.  13  Misc.  (X. 
Y.)  322,  34  X.  Y.  Supp.  462; 
Hoeinghaus  v.  Chaleyer,  4  X.  Y. 
Supp.  814;  Dueber  Watch  Case  Mfg. 
Co.  v.  Keystone  Watch  Case  Co.,  21 
X.  Y.  Supp.  342.  50  X.  Y.  St.  417, 
23  X.  Y.  Civ.  Proc.  44.  But  see 
Sanders  v.  Soutter.  54  Hun  (X.  Y.) 
310.  7  X.  Y.  Supp.  549.  Statutes 
providing  for  the  verification  of 
pleadings  by  attorney  or  agent  do 
not  apply  to  affidavits  in  support  of 
applications  of  this  character.  Colin 
v.  Baldwin,  74"  Hun  I X.  Y.)  346, 
26  X.  Y.  Supp.  457. 

4  Mungall  v.  Bursley,  51  App. 
Div.  (X.  Y.)  380,  64  X.  Y.  Supp. 
074.     See  31  Cyc.  586. 

5  Talmadge  v.  Sanitary  Security 
Co.,  2  X.  Y.  App.  Div.  43,  37  X.  Y. 


§  245] 


FORM  OF  BILL  OF  PAKTICULARS. 


7.93 


§  244.  Remedy  for  failure  to  give  a  bill  of  particulars. 
In  Xew  York,  the  remedy  for  a  failure  to  give  a  bill  of 
particulars,  which  has  been  ordered,  is  a  motion  to  preclude  the 
party  from  giving-  evidence  concerning  the  matter,  the  particu- 
lars of  which  were  directed,1  or  by  a  motion  to  strike  out  the 
pleading.2  Where  an  insufficient  bill  is  given,  the  remedy  is  a 
motion  for  a  further  bill.3  Evidence  upon  the  point  omitted 
will  not  be  excluded  until  such  further  bill  had  been  ordered 
and  the  order  disobeyed.4  It  is  the  safer  practice  there  to  re- 
turn the  defective  bill  served  when  demanding  a  compliance 
with  the  original  order.5  It  is  the  better  practice  to  procure  a 
specific  order  precluding  the  party  from  giving  evidence,  after 
his  failure  to  comply  with  the  second  order  for  a  bill,  or  to 
insert  in  the  order  for  the  further  bill  a  provision  precluding 
evidence  upon  any  points  not  therein  specified.8 

§  245.  Form  of  bill  of  particulars.  A  lull  of  particulars 
will  be  held  to  be  sufficient  if  it  fairly,  in  substance,  gives  the 
opposite  party  the  information  to  which  he  is  entitled,1  as  re- 


Supp.  177 ;  Webster  v.  Fitchburg  R. 
Co.,  32  Misc.  (X.  Y.)  442,  66  N.  Y. 
Supp.  220. 

§  244.  1  Gross  v.  Clark,  87  X.  Y. 
-272,  276;  Foster  v.  Curtis,  121  App. 
Div.  (X.  Y.)  689;  Prym  v.  Peck  & 
Mack  Co..  136  App.  Div.  (X.  Y.) 
566;  Loscber  v.  Hager,  124  App. 
Div.   (X.  Y.)    568. 

2  Symonds  v.  Craw,  5  Cowen  (X. 
Y.).279;  Whitmore  v.  Jennys,  1 
Barbour  (X.  Y.)  53;  Purdy  v.  War- 
den, 18  Wendell  (X.  Y.)  671;  Gross 
v.  Clark,  87  X.  Y.  272.  276. 

3  Beirne    v.    Sanderson,    83    App. 
i    62,    82    X.    Y.    Supp. 

v.  Kensico  Cemetery, 
(X.  Y.)  100,  80  X. 
Mueller  v.  Tentb  St., 
etc..  Ferry  Co..  38  App.  Div.  (X. 
Yr.)  622,  56  X.  Y.  Supp.  310;  Dueber 
Watch  Case  Mfg.  Co.  v.  American, 
etc..  Watch  Co.,  22  X.  Y.  Supp.  69, 
29  Abb.  X.  Cas.  412;  Mathushek 
Piano  Co.  v.  Pearce,  21  X.  Y.  Supp. 


Div.    (X.   Y. 
493 ;    Romer 
79   App.   Div. 
Y.   Supp.  38; 


920;  Virtue  v.  Beacham.  17  X.  Y. 
Supp.  450  {affirmed  in  18  X.  Y. 
Supp.  949)  ;  Gas-Works  Constr.  Co. 
v.  Standard  Gas-Light  Co.,  1  X.  Y. 
Supp.  265 ;  Bates  v.  Wotkyns,  2 
How.  Pr.  (X.  Y.)  IS;  Barnes  v. 
Henshaw,  21  Wend.  (X.  Y.)  426; 
Purdey  v.  Warden,  18  Wend.  (X. 
Y.l  651;  James  v.  Goodrich,  1 
Wend.    (X.  Y.)    289. 

4  Cerra  de  Pasco  Tunnel,  etc.,  Co. 
v.  Haggin,  114  X.  Y.  App.  Div.  116. 
99  X.  Y.  Supp.  683;  Pveader  v.  Bag- 
gin,  114  X.  Y.  App.  Div.  115,  99  X. 
Y.  Supp.  684;  Reader  v.  Haggin. 
114  X.  Y.  App.  Div.  112.  99  N.  Y. 
Supp.  681. 

5  Ward  v.  Littlejohn.  2  Silv.  Sup. 
(X.  Y.)  589,  6  X.  Y.  Supp.  170.  17 
X.  Y.  Civ.  Proc.  178. 

6  Locker  v.  Am.  Tobacco  Co..  200 
Fed.  97:!. 

§  245.  l  Boykin  v.  Persons.  !).") 
Ala.  626.  11  So.  67;  Ames  v.  Hell. 
5  Cal.  App.  1,  89  Pac.  619:   Vila  v 


■94 


MOTIONS  FOR  BILLS  OF  FATCTICT'LARS. 


[§   246 


quired  hv  the  terms  01  the  order  directing  the  service  of  the 
same.*  Tt  should  he  as  definite  as  the  means  of  information  at 
the  command  of  the  party  serving  the  same  will  allow.3  In 
England,  a  party  may  he  allowed  to  give  the  best  particulars 
he  can,  with  leave  to  supplement  the  same  within  a  reasonable 
and  specified  time  before  the  trial.4  A  party  suing  or  being 
sued  in  a  representative  capacity  is  only  ordered  to  give  the 
best  particulars  he  can.5  Tt  was  held  that  a  paper  improperly 
tiled  as  an  amended  pleading  might  be  treated  as  an  amplifica- 
tion of  a  bill  of  particulars  previously  filed.6  It  has  been  said 
that,  ordinarily,  a  bill  of  particulars  need  not  be  verified,  unless 
an  affidavit  is  required  by  statute.7 

§  246.  Amendment  of  bill  of  particulars.  In  England  an 
application  to  amend,  or  add  to,  a  bill  of  particulars,  if  made  a 
reasonable  time  before  the  trial  will  usually  be  allowed.1  but 


Weston.  33  Conn.  42;  Columbia 
County  v.  Branch.  31  Fla.  62.  12  So. 
650:  Leib  v.  Butterick.  68  Ind.  199;. 
Pierce  v.  Wilson.  48  Ind.  298;  More- 
head  v.  Anderson.  100  S.  W.  340, 
30  Ky.  L.  Bep.  1137:  Scott  v.  Leary. 
34  Md.  389;  Snell  v.  Gregory.  37 
Mich.  500;  Voorhees  v.  Barr.  59  N. 
J.  L.  123,  35  Atl.  651  ;  Matthews 
v.  Hubbard.  47  N.  V.  428;  Kindberg 
v.  Chapman.  115  N.  Y.  App.  Biv. 
153.  100  X.  Y.  Supp.  6S5;  Baker 
v.  Sutton,  86  Hun  (X.  Y.)  588.  33 
X.  Y.  Supp.  1072;  Moss  v.  Crim- 
mins.  30  Misc.  (X.  Y.J  300.  63  X. 
Y.  Supp.  416;  Bedmond  v.  Buckley. 
20  X.  Y.  Supp.  969'j  Donohue  v. 
Pomeroy.  19  X.  Y.  Supp.  569:  Duffy 
v.  Byer.  17  X.  Y.  Supp.  843:  Stan- 
Icy  v.  Millard.  4  Hill  (X.  Y.I  50: 
Smith  v.  Hicks.  5  Wend.  (X.  Y. ) 
48:  MacBonald  v.  Xew  York.  etc.. 
B.  Co..  25  B.  I.  40.  54  Atl.  795: 
Columbia  Ace.  Assoc,  v.  Bockey,  93 
Yn.  678.  25  S.  F.  1009:  Burnbam 
v.  Milwaukee.  69  Wis.  379.  34  X. 
W.  389:  Chesapeake,  etc..  Canal  Co. 
v.  Knapp.  9  Pet.  541.  9  L.  ed.  222: 
Church  v.  Spiegelberg,  33  Fed.  158: 


Whitaker  v.  Pope.  29  Fed.  Cas.  Xo. 
17,528.  2  Woods  463:  Perkins  v. 
Irvine.  23  Xova  Scotia.  250. 

2Quinn  v.  Fitzgerald.  87  X.  Y. 
App.  Div.  539.  84  X.  Y.  Supp.  728:. 
Mueller  v.  Tenth  St..  etc..  Ferry 
Co..  38  X.  Y.  App.  Div.  622,  56  X. 
Y.  Supp.  310;  People  v.  Cox.  23 
Hun  (X.  Y.)  269:  Mason  v.  Bing, 
10  Bosw.    (X.  Y.)    598. 

3  Baremore  v.  Taylor,  53  X.  Y. 
Super.  Ct.  119:  Mason  v.  Bing.  10 
Bosw.  (X.  Y.)  59S:  Humphry  v. 
Cottleyou.  4  Cow.  (X.  Y.)  54:  Sul- 
livan v.  Waterman.  21  B.  I.  72.  41 
Atl.  1006;  Long  v.  Kinard.  Harp. 
(S.  C.)   47:  31  Cyc.  5SS. 

4  14  days'  time.  Marshall  v.  In- 
teroceanic.  etc.,  Co..  1  Times  Bep. 
394:  Harbord  v.  Monk.  38  L.  T.  411. 

5  Higgins  v.  Weekes.  5  Times  Rep. 
238. 

6  Ontario  Powder  Works  v.  Pow- 
ell. 132  Mich.  451.  93  X.  W.  1075. 

1  31  Cyc.  589.  citing  Jones  v.  Bar- 
nett.  35  Md.  258. 

§  246.  1  Clarafede  v.  Commercial 
Cnion  Ass'n.    (C.  A.  I    32  \V.  R.  262. 


§   216] 


AMENDMENT    OF    BIT,!.    OF    PARTICULARS. 


'95 


not  if  it  is  sought  thereby  to  introduce  a  new  cause  of  action, 
such  as  fraud ; 2  nor  to  increase  a  claim  after  payment  of  the 
full  original  claim  into  court.3  At  the  trial,  leave  to  amend  a  bill 
of  particulars  has  usually  been  refused,4  although  a  change  of 
date  has  then  been  allowed  on  terms.5  The  rule  in  the  different 
States  of  this  Union  is  similar,6  except  that  amendments  of  a 
bill  of  particulars  at  the  trial  are  often  granted  when  the  op- 
posite side  will  not  be  prejudiced  by  surprise.7 


2  Cocksedge  v.  Metropolitan  Coal 
Consumers'  Ass'n.,  65  L.  T.  432. 

3  Sanders  v.  Hamilton,  (1907)  96 
L.  T.  679. 

4  Moss  v.  Mailings,  33  Ch.  D.  603. 

5  McCarthy  v.  Fitzgerald,  (1909, 
Ca.)    2  Irish  R.  445. 

6  31   (ye.  589,  590. 

7  31  Cye.  589;  citing  Brownell 
Imp.  Co.  v.  Critchiield.  96  111.  App. 
84  (affirmed  in  197  111.  61,  64  N. 
E.  332)  ;  Farmers',  etc.,  Bank  v. 
Glen  Elder  Bank,  40  Kan.  376,  26 
Pac.  680;  Marion  County  School 
Dist.  No.  73  v.  Dudley,  28  Kan. 
160;    Gardner  v.   Gardner,  2   Gray, 


(Mass.)  434;  Felter  v.  Manville,  23 
Kan.  191.  Compare  Tate  v.  Hamil- 
ton. 81  Mich.  221,  45  N.  W.  822. 
Fielder  v.  Collier,  13  Ga.  496;  Reed 
v.  Cooper,  30  Kan.  574,  1  Pac.  822 ; 
Towle  v.  Blake,  38  Me.  528;  Lester 
v.  Thompson,  91  Mich.  245,  51  X. 
W.  893:  Mead  v.  Glidden,  79  Mich. 
209,  44  N.  W.  596;  Collins  v. 
Beecher,  45  Mich.  436,  8  X.  W.  97  ; 
Haviland  v.  Fidelity  Ins.,  etc.,  Co., 
3  Pa.  Co.  Ct.  222;  Lewis  v.  Jewett, 
51  Vt.  378;  Hopkins  v.  Stefan,  77 
Wis.  45,  45  X.  W.  676.  But  see 
Goforth  v.  Stingley,  79  Miss.  398, 
30  So.  Rep.  690. 


CHAPTER  XVI. 


MOTIONS    AND    PETITIONS. 

§  247.  Definition  and  classification  of  interlocutory  ap- 
plications. An  interlocutory  application  is  a  request,  not  in- 
corporated in  a  bill,  made  to  the  court  for  its  interference  in  a 
matter  arising  in  a  cause  either  before  or  after  a  decree.  An 
interlocutory  application  is  made  by  motion  or  petition. 

§  248.  Definition  and  classification  of  motions.  A  mo- 
tion has  been  defined  as  "an  application  either  by  a  party  or  his 
counsel,  not  founded  upon  any  written  statement  addressed  to 
the  court."  1  But  the  rules  of  the  Supreme  Court  of  the  United 
States  provide  that  "all  motions  hereafter  made  to  the  court 
shall  be  reduced  to  writing,  and  shall  contain  a  brief  statement 
of  the  facts  and  objects  of  the  motion.2  And  most  motions  are 
supported  by  affidavits.  Motions  are  either  of  course  or  special. 
Special  motions  are  either  ex  parte  or  upon  notice." 

§  249.  Motions  of  course.  Motions  of  course  are  those 
which,  by  some  rule  or  practice  of  the  court,  are  invariably 
granted  without  notice,  and  to  which  no  opposition  is  allowed.1 
In  Federal  equity  practice,  the  term  is  usually  confined  to  such 
motions  as  are  granted  as  of  course  by  the  clerk  without  the 
intervention  of  a  judge  of  the  court.2  The  equity  rules  provide 
that  "all  motions  and  applications  in  the  clerk's  office  for  the 
issuing  of  mesne  process  and  final  process  to  enforce  and  exe- 
cute decrees;  for  taking  bills  pro  confesso;  and  for  other  pro- 

§248.     1  Daniell's    Ch.    Pr.     (2d  the  minutes.    Herrlich  v.  McDonald. 

Am.   ed.)    1787.      See   the   language  80  Cal.  472.  22  Pae.  299. 
of    Folger   J.,    in    Shaft   v.    Phoenix  2  Supreme  Court  Rule  6. 

Mut.  L.  Ins.  Co.  07  N.  Y.  544.  547,  §  240.     1  U.   S.   v.  Parrott,  1  Mc- 

23  Am.  Rep.  138.     It  has  been  said,  All.   447,    454;    Merchants'   Bank   v. 

however,  that  a  careful  practitioner  Crysler.  C.  C.  A.,  07  Fed.  388,  390; 

should    prepare  and   file   his  motion  s.  c,  14  C.  C.  A.  440. 
in     writing,     stating     the     grounds  "Robinson    v.    Satterlee,    3    Saw. 

thereof,  or  have  the  same  entered  in  134,   141. 

TOO 


§  250] 


EX  PABTE  MOTIONS. 


797 


ceedings  in  the  clerk's  office  which  do  not  require  any  allowance 
or  order  of  the  court,  or  of  any  judge  thereof,  shall  he  deemed 
motions  and  applications  grantahle  of  course  by  the  clerk  of  the 
court.  But  the  same  may  be  suspended,  or  altered,  or  rescinded 
by  any  judge  of  the  court,  upon  special  cause  shown."  The 
order  dismissing  a  bill  for  an  omission  to  duly  file  a  replication 
is  an  order  as  of  course.4  It  has  been  held  that  an  order  for- 
the  issue  of  a  commission  is  not, 

§  250.  Special     motions     without     notice.      A     special 
motion  is  a  motion  which  can  only  be  granted  by  a  judge  of 
the   court    under   special   circumstances   or   in    his   discretion. 
Such  motions  are  either  upon  notice  or  without  notice.     Orders 
granted  upon  motions  without  notice  are  said  to  be  ex  parte; 
and  the  same  term  is  applied  to  the  motions  upon  which  they 
are  granted.     An  ex  parte  special  motion  must  be  supported  by 
an  affidavit,2    Ex  parte  special  motions  are  not  common.3     They 
are  usually  granted  to  prevent  some  irreparable  injury  to  the 
moving  party   which   would   otherwise   occur   within   the   time 
limited  for  notice,  when  the  same  is  required;   and  the  court 
should  always  lend  a  willing  ear  to  an  application  to  discharge 
or  set  aside  an  ex  parte  order.4     Ex  parte  orders  may  be  ob- 
tained at  any  time   and   in  any  place  within  the  jurisdiction 
of  the  judge,  whether  in  court  or  elsewhere.5    As  a  general  rule,, 
where   a   partv  has   appeared   he   is   entitled   to   receive  notice 
of  every  application  for  an  order,  except  applications  for  an 
extension    of   time    and    those    of   a    like   nature    and   motions: 
which  are  granted  as  of  course.      No  preliminary  injunction 


3  Equity  Rule   5. 

4  Robinson  v.  Satterlee,  3  Saw. 
134,  141. 

SU.  S.  v.  Parrott,  1  McAll.  447. 

§  250.  1U.  S.  v.  Parrott,  1  Mc- 
All. 447,  454;  Merchants'  Bank  v. 
Crysler.  C.  C.  A.,  67  Fed.  388,  390; 
S.  C,  14  C.  C.  A.  449. 

2Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
■  1789. 

3  McLean  v.  Lafayette  Bank,  3 
McLean,  503;  U.  S.  v.  Parrott.  1 
McAll.  447;  Marshall  v.  Mellersh, 
5  Beav.  490;  Gray  v.  C.  I.  &  N.  R. 
Co.,   1   YVoolw.  63. 


4Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1789,  1790;  Isnard  v.  Cazeaux,  1 
Paige  (N.  Y.),  39;  Hart  v.  Small, 
4  Paige    (N.  Y.),  551. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed. 
1789;  Equity  Rule  3;  Horn  v.  Pere 
Marquette  R.  Co.,  151  Fed.  626; 
infra,  $  255. 

6  Isnard  v.  Cazeaux.  1  Paige  (N. 
Y.)  38;  Merchants'  Bank  v.  Crys- 
ler, C.  C.  A..  <i7  Fed.  3SS.  390; 
s.  c.  14  ('.  C.  A.  449.  See,  also, 
Marshall  v.  Mellersh.  5  Bev.  496; 
Daniell's  Ch.  Pr.,  (2d  Am.  ed.). 
1789,  1790. 


:ik 


MO.TIOWS  AND  PETITIONS. 


[§  251 


is  granted  without  notice:  7  but  when  notice  has  been  given  of 
a  motion  for  an  injunction,  and  there  appears  to  be  danger 
of  irreparable  injury  from  delay.,  a  temporary  restraining  order 
may  be  granted  without  notice.8  The  matter  must  then  be  re- 
turnable within  ten  days,  and  the  stay  order  is  dissolved  unless 
the  party  who  obtained  the  order  proceeds  with  his  application 
for  an  injunction.  It  may  also  be  dissolved  or  modified  upon 
two  (lays'  notice.10  Under  extraordinary  circumstances,  re- 
ceivers may  be  appointed  ex  p<ntc.n  Writs  of  ne  exeat  re- 
public are  usually  granted  ex  parte.12  The  proper  practice, 
when  the  judge  is  absent,  is  to  submit  the  motion  papers  to  the 
elerk.  not  to  send  them  to  the  judge  by  mail.13 

§  251.  Notice  of  motion.  "Any  district  judge  may.  upon 
reasonable  notice  to  the  parties,  make,  direct,  and  award,  at 
chambers  or  in  the  clerk's  office,  and  in  vacation  as  well  as  in 
term,  all  such  process,  commissions,  orders,  rules  and  other  pro- 
ceedings, whenever  the  same  are  not  grantable  of  course,  ac- 
cording to  the  rules  and  practice  of  the  court."  x  "Neither  the 
noting  of  an  order  in  the  Equity  Docket  nor  its  entry  in  the 
Order  Book  shall  of  itself  be  deemed  notice  to  the  parties  or 
their  solictors;  and  when  an  order  is  made  without  prior  notice 
to.  and  in  the  absence  of.  a  party,  the  clerk,  unless  otherwise 
directed  by  the  court  or  judge,  shall  forthwith  send  a  copy 
thereof,  by  mail,  to  such  party  or  his  solicitor  and  a  note  of 
such  mailing  shall  be  made  in  the  Equity  Docket,  which  shall 
be  taken  as  sufficient  proof  of  due  notice  of  the  order,,"  The 
Length  and  manner  of  service  of  notices  of  motion  is  usually 
regulated  by  rule  or  local  practice  differently  in  the  several 
districts  or  circuits.  The  State  practice  is  often  followed.3 
It  has  been   held,   that  service  of  a  notice  of  a  motion   for  a 


7  Eq.  Rule  73;   infra,  §  292. 

8  Ibid.  Jud.  Code,  §  263,  30  St.  at 
L.  1087. 

9  Ibid. 

10  11, id. 

ii  Phelps  v.  Mutual  Reserve  Fund 
Life  Ass'n.,  C.  C.  A..  61  L.R.A.  717. 
112  Fed.  453 j  Worth  Mfg.  Co.  v. 
Bingham,  C.  C.  A..  116  Fed.  785; 
and    other   eases   cited   infra.   §   317. 

12(Collinson   v.  ,   18  Yes. 


333;  Daniell's  Ch.  Pr..  (2d  Am.  ed.) 
1780.  1037:    infra,  §  328. 

13  AV  Kinney.  C.  C.  A..  135  Fed. 
340. 

§  251.     lEq.  Rule   1. 

2  Eq.  Rule  4.  But  see  Eq.  Rule 
8;  quoted  infra,  §  257. 

3S.  D.  N.  Y..  Rule  15. 

Where  the  attorney  for  a  party 
has  died  and  no  successor  has  ap- 
peared or  been   appointed,   it   seems 


§251] 


NOTICE  OF  .MOTION. 


791) 


relief  by  a  receiver  may  be  made  by  mail,  addressed  to  a  party 
to  the  suit,  who  lives  outside  the  district.4  Notice  of  a  motion 
for  anv  process  of  contempt  or  commitment,  when  Tiotice  is 
required,  must  be  served  personally  on  the  party  against  whom 
the  process  is  sought,5  except,  perhaps,  when  ari  order  for  sub- 
stituted service  has  been  previously  obtained.6  In  England, 
under  special  circumstances,  notice  of  a  motion  could  be  made 
upon  an  agent  of  a  person  without  the  jurisdiction.7  An  appear- 
ance in  court  Upon  the  day  appointed  for  the  motion  or  a 
consent  to  an  adjournment,  is  a  waiver  of  a  defect  in  the 
time  and  manner  of  service8  and  in  the  form  of  the  notice9 
unless  the  objection  is  first  specifically  made.  Notice  of  motion 
is  given  either  by  a  notice  signed  by  the  solicitors  or  parties 
or  by  an  order  to  show  cause  granted  by  the  court.  An  order 
to  sliow  cause  is  an  order  requiring  a  party  to  appear  and  show 
cause  why  a  certain  thing  should  not  be  done  or  permitted.10 
It  is  equivalent  to  a  notice  of  motion,  and  except  in  eases  where 
it  is  required  by  statute.11  its  ordinary  use  is  to  procure  the 
argument  of  a  motion  within  a  shorter  time  than  the  term  for 
notice  required  by  the  rules  or  statute.  In  England  the  cor- 
responding practice  is  by  what  is  termed  a  rule  nisi.12 

A  notice  of  motion  should  be  properly  entitled  in  the  cause 
or  matter  in  which  it  is  made.13  Where  there  are  separate 
plaintiffs  or  defendants,  a  notice  is  not  defective  which  names 


that  notice  of  a  motion  may  be 
served  upon  such  a  party  person- 
ally. Hoffman  v.  Rowley.  f3  Abb. 
Pr.  X.  Y.  399. 

4  Appeal  dismissed  in  Bache  v. 
Hunt.  193  I".  S.  523.  Cf.  Re  Wood 
&  Henderson.  210  t'.  S.  240,  52  L. 
ed.  1046;  Re  Brockton  Ideal  Shoe 
Co..  C.  C.  A..  200  Fed.  745;  See 
Staunton  v.  Wooden.  C.  C.  A..  179 
/ed.  61  :  Re  Waukesha  Water  Co., 
116  Fed.  1009;  and  Chapter  on 
Bankruptcy,  infra. 

B  Darnell's  Ch.  Pr.  (2d  Am.  ed.) 
1704;  Gray  v.  C.  I.  &  N.  K.  Co.,  1 
Woolw.  iVA:   supra,  §   165. 

6  Hope  v.  Hope,  4  De  G..  M.  &  G. 
328. 


7DaiiieH's  Ch.  Pr.  (2d  Am.  ed.) 
1794;  Hope  v.  Hope,  4  He  G.,  M. 
&  G.  328;  Cooper  v.  Wood,  5  Reav. 
391  ;  Pulteney  v.  Shelton.  5  Yes. 
147:  Hunt  v.  Lever,  5  Yes.  147: 
and  supra,  §  165. 

8  New  York  Times  v.  Sun  Print- 
ing &  Publishing  Co..  195  Fed.   173. 

BMarye  v.  Strouse,  6  Sawyer,  204. 

io  Spaetah  v.  Sells.   170   Fed.  797. 

ll  Sec  Spaeth  v.  Sells.  176  Fed. 
797. 

l?Geneva  Basket  Co..  71  iVIisc. 
(X.  Y.)  156.  See  People  \.  Brook- 
lyn Bank,  140  A  pp.  Div.  i  X.  Y.) 
750.  752. 

13  Barb.  Ch.  Pr.  570:  Rowl'att  v. 
Cattell,    2    Hare.     186:    Salomon    v. 


800 


MOTIONS  AXD  PETITIONS. 


[§   251 


the  first  of  each  of  them  with  the  affix  "and  others,1'  provided 
the  opposite  party  is  not  misled  thereby.14  Where  there  are 
two  titles  and  one  is  incorrect,  if  the  other  is  correct  the  notice 
is  good.15  When  the  parties  are  the  same,  the  same  notice  may 
be  entitled  in  several  actions.16  The  notice  should  be  ad- 
dressed to  the  solicitor  of  the  party  intended  to  be  affected 
bv  it,  or  to  the  party  himself  when  he  appears  in  person 
or  personal  service  is  intended.  It  should  be  dated,17 
and  signed  by  the  solicitor  for  the  moving  party,  or 
by  that  party  himself  if  he  appears  in  person.18  It  has 
been  held  in  Xew  York  that  a  notice  signed  in  person  by  a 
defendant  who  has  previously  appeared  by  a  solicitor  who  has 
not  been  removed  is  irregular.19  A  notice  of  motion  should 
state  the  day,  place,  and  hour  at  which  the  motion  will  be 
It  is  usual,  however,  to  designate  the  hour  by  the  ex- 


11 


iadt 


20 


pression  "at  the  opening  of  the  court  on  that  day,"  and  to  add 
the  words  "or  as  soon  thereafter  as  counsel  can  be  heard."21 
Where  the  motion  can  be  made  only  by  leave  of  the  court,  the 
notice  ought  to  mention  that  it  is  so  made;  or,  otherwise,  it 
seems  that  it  may  be  disregarded.22  Where  the  object  of  the 
motion  is  to  discharge  an  order  for  irregularity,  it  is  usual  for 
the  notice  to  state  the  ground  of  the  application.23  It  is  usual 
for  the  notice  also  to  state  before  what  judge  the  motion  will 
he  made;  and  to  specify  the  affidavits  and  other  documents 
which  will  be  used   in   its   support.24      The   notice  must   state 


Stalman,  4  Beav.  243;  Davis  v.  Bar- 
rett, 7  Beav.  171;  Morrall  v.  Prich- 
ard,  11  Jur.  (X.  S.)  969;  Foote  v. 
Emmons,  2  How.  Pr.  (N.  Y.)  89; 
Hawley  v.  Donnelly,  8  Paige  (X. 
Y.)   415. 

14  Jerauld  County  v.  Williams,  7 
S.  D.  196,  63  X.  W.  905. 

15  Matter  of  Ungrich,  201  X.  Y. 
415. 

16  Hornfager  v.  Hornfager,  6  How. 
Pr.    (X.  Y.)    13. 

17  Bail).  Ch.  Pr.  570;  Moody  v. 
Hebberd,  11  Jur.  941;  Hutchinson 
v.  Horner,  9  Jur.  615;  Parker  v. 
Francis.  9  Jur.  616,  note. 

18  Barb.  Ch.  Pr.  570;  Perry  v. 
Walker,  4  Beav.  452. 


19  Halsey  v.  Carter,  6  Robertson 
(X.  Y.).  :rtr>;  Webb  v.  Dill.  18  Abb. 
Pr.   (X.  Y.)   264. 

20  Barb.  Ch.  Pr.  570;  Bodwell  v. 
Willcox,  2  Caines  (X.  Y.),  104; 
Anon.,  1  J.  R.    ( X.  Y.)    143 

21  Barb.  Ch.  Pr.  570;  In  re  Elec- 
tric Tel.  Co.  of  Ireland,  10  W.  R.  4. 

22  Hill  v.  Rimell,  8  Sim.  632; 
Jacklin  v.  Wilkins.  6  Beav.  607. 

23  Brown  v.  Robertson,  2  Phil. 
173;  Alexander  v.  Esten,  1  Caines 
(X.  Y.),  152;  Jackson  v.  Stiles,  1 
Cowen    (N.  Y.),  134. 

24Danieil's  Ch.  Pr.  (2d  Am.  ed.) 
1793;  Clement  v.  Griffith,  C.  P. 
Coop.  470;  Brown  v.  Rickotts,  2  J. 
Ch.    (X.  Y.)    425. 


■§   2$2[ 


NOTICE  OF   MOTION. 


801 


■clearly  the  terms  of  the  order  which  will  be  asked  for,  and 
•everything  which  the  party  would  have  should  be  expressed, 
as  the  court  will  riot  extend  the  order  beyond  the  notice.25 
For  this  reason,  it  is  prudent  to  add  a  notice  of  a  motion  for 
general  relief;  that  is,  "fox  such  other  or  further  order  or  relief 
as  to  the  court  shall  seem  just;"  under  which,  other  relief 
germane  to  that,  a  motion  for  which  has  been  specifically 
noticed,  may  be  granted.26 

A  number  of  objects  not  inconsistent  with  each  other,  and 
even  inconsistent  objects,  if  prayed  for  in  the  alternative,  may 
be  included  in  the  same  notice  and  motion.27  The  court  will 
discourage  when  directing  as  to  costs  the  making  of  separate 
motions  for  objects  which  might  have  been  conveniently  ob- 
tained by  a  single  application.28  It  is  irregular  to  grant  affirm- 
ative relief  to  a  party  opposing  a  motion,  when  he  has  served 
no  notice  of  his  application  for  the  same.29     After  notice  of  a 


25  Barb.    Cli.    Far.    370;    Mann    v. 
King,  18  Yes.  297. 

26  Barb.  Ch.  Pr.  570.  People  v. 
Turner,  1  Cal.  152;  Landis  v.  Olds. 
■9  Minn.  90;  Ferguson  v.  Jones,  12 
Wendell  (X.  Y.)  241:  Rogers  v. 
Toole,  11  Paige  I  X.  Y.)  212;  Bis- 
sell  v.  New  York  Cent.  &  H.  R.  R. 
Co.,  67  Barbour  (X.  Y.)  385;  Boy- 
len  v.  McAv'oy,  29  How.  Pr.  (X.  Y.) 
278;  Yan  Slyke  v.  Hyatt,  4(i  X.  Y. 
259;  Randall  v.  Randall,  139  App. 
Div.  (X.  Y.)  074:  People  v.  Brook- 
lyn Bank.  140  App.  Div.  (X.  Y.) 
750,  752.  But  see  Scbneider  v. 
Meyer,  56  Mo.  475 ;  Xortbrop  v. 
Van  Dusen.  5  How.  Pr.  (X.  Y.) 
134;  3  Code  Rep.  (X.  Y.)  140;  Bel- 
linger   v.    Martindale.    8    How.    Pr. 

(X.  Y.)  113;  De  Walt  v.  Kinard, 
19  S.  C.  2S6.  It  lias  been  held  that 
on  the  hearing  of  a  motion  for  the 
production  of  papers  under  a  sub- 
poena duces  te<yurr>  coupled  with  a 
prayer  for  general  relief,  if  the 
other  party  appears  by  counsel,  an 
order  may  be  granted  committing 
Fed.  Prac.  Vol.  I.— 51. 


him.  or,  if  a  corporation,  commit- 
ting its  officers,  for  contempt  for 
disobedience  to  the  subpoena,  Edi- 
son El.  L.  Co.  v.  U.  S.  El.  L.  Co..  44 
Fed.  294.  300;  that  a  motion  for  the 
appointment  of  a  receiver  cannot 
be  made  at  the  hearing  of  a  motion 
for  an  injunction  against  an  inter- 
ference with  a  railroad  claimed  to 
be  in  the  possession  of  the  moving 
party.  St.  L..  K.  C.  &  C.  Ky.  Co.  v. 
Dewees,  23  Fed.  691.  that  a  motion 
to  suppress  depositions  brings  up 
the  regularity  of  an  ex  parte  order 
directing  them  to  be  taken,  as  well 
as  the  competency  of  the  witness  ex- 
amined, if  the  party  moving  to  sup- 
press has  never  done  anything  to 
waive  the  objection,  Bradley.  J.,  in 
Eslava  v.  Mazange,  1  Wooa:?.  623. 
1127. 

87Daniell's  Ch.  Pr.   (2d  Am.  ed.) 
1792,    1793. 

28  Hawke  v.  Kemp,  3  Beav.  ^88. 

29Carcie    v.    Sheldon,    3    Barbour 
(N.  Y.)  232. 


802 


MOTIONS  AND  PETITIONS. 


[§  251 


motion  has  been  served,  it  cannot  be  withdrawn  without  the 
consent  of  the  court.30 

A  motion  may  be  made  by  any  party  to  a  cause  except  one 
who  is  in  contempt.31  It  has  been  said :  that  a  party  in  con- 
tempt cannot  move  for  any  other  purpose  than  to  discharge 
the  contempt  proceedings,32  or  to  expunge  scandal  from  the 
record ;  33  and  in  such  cases  he  should  apply  by  petition.34  The 
rule  in  the  Federal  courts,  however,  is  that  he  is  only  debarred 
from  applications  which  are  not  of  strict  right,  but  are  mat- 
ters of  favor  in  the  discretion  of  the  court,35  such. as  -an  appli- 
cation to  open  a  default.36  and  that  his  answer  cannot  be 
stricken  out  of  the  record  nor  can  he  be  denied  a  hearing.37 
No  one  should  join  in  a  notice  for  a  motion  in  which  he  is  not 
directly  interested.38  The  joinder  of  one  disinterested  party 
with  others  who  had  an  interest  was  held  in  England  a  suffi- 
cient reason  for  refusing  the  whole  motion.39  A  motion  in  the 
course  of  proceedings  under  an  information  cannot  be  made 
on  behalf  of  the  relators,  but  only  on  behalf  of  the  attorney- 
general  or  district  attorney.40  Where  it  is  clearly  for  the  in- 
terest of  a  person  under  a  disability  to  make  a  motion,  and  he 
has  no  next  friend,  or  his  next  friend  refuses  to  do  so,  a  next 
friend  for  the  purposes  of  the  application  may  move  on  his  be- 
half.41 After  a  motion  has  been  denied,  it  cannot,  without 
leave  of  the  court,  be  renewed  upon  the  same  papers,  nor  upon 
additional  proof  of  facts  that  existed  at  the  time  the  original 


30  People  v.  Hart,  N.  Y.  L.  J. 
June  5th.   1905. 

31  Darnell's  Ch.  Pr.  (2d  Am.  ed.) 
1787;  Nicholson  v.  Squire,  16  Ves. 
259,  200. 

32  Darnell's  Ch.  Pr.  (2d  Am.  ed.) 
554—558,   1 7S7   Anon.,  5  Ves.   656. 

33  Everett  v.  Prythergch.  12  Sim. 
363. 

34  Lord  Eldbn  v.  Nicholson  v. 
Squire,    16    Yes.    259,    260. 

35  Hovey  v.  Elliott,  167  U.  S.  409, 
42  L.  ed.  215. 

36  El  ling  wood  v.  Stevenson,  4 
Sandf.  Ch.    (X.  Y.)    366. 

37  Hovey  v.  Elliott.  167  U.  S.  409, 
42  L.  ed.  215;   Sibley  v.  Sibley,   76 


App.  Div.  (N.  Y.)  132,  136.  Contra, 
Walker  v.  Walker,  82  N.  Y.  260; 
Pickett  v.  Ferguson,  45  Ark.  177, 
191.  See  Bennett  v.  Bennett,  208 
U.  S.  505,  52  L.  ed.  590. 

38Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1793;  Folland  v.  Lamotte.  10  Sim. 
480. 

39  Folland  v.  Lamotte.  10  Sim. 
486. 

40  Atty.  Gen.  v.  Wright,  3  Beav. 
447. 

«  Cox  v.  Wright,  9  Jur.  (N,  S.) 
981:  Guy  v.  Guy,  2  Beav.  460; 
Furtado  v.  Furtado,  6  Jur.  227; 
supra,  §§  32,  33. 


§  252] 


ARGUMENT  OF   MOTIONS. 


80:1 


motion  was  made ; 42  but  where  the  new  motion  is  made  on  facts 
that  have  occurred  since  the  former  motion  was  made,  no  leave 
to  renew  is  necessary,  and  the  motion  may  be  made  as  a  matter 
of  right.43  Leave  to  renew  will  not  be  granted  when  the  time 
to  appeal  has  expired.44 

§  252.  Argument  of  motions.  The  manner  of  bringing 
motions  to  a  hearing  is  regulated  by  local  rule  or  usage  differ- 
ently  in  the  different  circuits.  Either  no  method  is  observed, 
and  motions  are  made  by  counsel  as  they  catch  the  judge's  eye, 
or  a  calendar  is  made  and  called  upon  which  motions  are  placed 
by  the  clerk  in  the  order  in  which  they  were  first  brought  to  his 
attention.  In  the  Supreme  Court  of  the  United  States  the 
Attorney-General   and  the   Solicitor-General  take  precedence.1 


N.  Y.)  226;  A. 
Marchmedt,  39 
Security  Ware- 
Exchange    Nat. 


42  Mitchell  v.  Allen.  12  Wendell 
(X.  Y.)  290;  Sheehan  v.  Carvalho, 
12  App.  Div.  (X.  Y.)  430;  Haskell 
v.  Moran,  117  App.  Div.  (X.  Y.) 
251,  252;  De  Lacy  v.  Kelly,  147 
App.  Div.  (N.  Y.)  37. 

43  Le  Lacy  v.  Kelly,  147  App.  Div. 
(X.  Y.)   37. 

44  Stierle  v.  Union  Railroad  Co., 
11  Misc.  (X.  Y.)  124;  Matter  of 
Silliman,  38  Misc. 
Klipstein  &  Co.  v 
Misc.  (X.  Y.)  794 
house  Co.  v.  Am, 
Bank,  per  Hendrick,  J.,  X.  Y.  L.  J. 
May  7,  1910. 

§  252  1  Lord  Campbell  has  thus 
described  the  former  English  prac- 
tice, which  was  abolished  by  Lord 
Mansfield,  whose  rules  for  the  hear- 
ing of  motions  at  common  law  were 
followed  by  the  Court  of  Chancery: 
"Day  by  day  during  the  term,  each 
counsel  when  called  upon  had  been 
accustomed  to  make  as  many  mo- 
tions  successively  and  continuously 
as  he  pleased.  The  consequence  was, 
that  by  the  time  the  Attorney  and 
Solicitor-General,  and  two  or  three 


other  Dons,  had  exhausted  their  mo- 
tions, the  hour  had  arrived  for  the 
adjournment;  and  as  the  counsel  of 
highest  rank  was  again  called  to  at 
the  sitting  of  the  court  next  morn- 
ing, juniors  had  no  opportunity  of 
making  any  motions  with  which 
they  might  be  intrusted  till  the  last 
day  of  the  term,  when  it  was  usual, 
as  a  fruitless  compliment  to  them. 
to  begin  with  the  back  row, — after 
the  time  had  passed  by  when  their 
motions  could  be  made  with  any 
benefit  to  their  clients.  The  conse- 
quence was,  that  young  men  of 
promise  were  unduly  depressed,  and 
more  briefs  were  brought  to  the 
leaders  than  there  was  time  for 
them  to  read,  even  had  they  been 
toiling  all  night  at  their  chambers 
instead  of  sitting  up  in  the  House 
of  Commons, — absorbed  in  party 
struggles.  Thus  the  interests  of  the 
suitors  were  in  danger  of  being  neg- 
lected, and  the  judges  did  not  re- 
ceive the  fair  assistance  from  the 
bar  in  coming  to  a  right  conclusion 
which  they  were  entitled  to  expect. 
To   remedy   these  evils,   a   rule   was 


804  MOTIONS  AND  PETITIONS.  [§    252- 

"Each  district  court  shall  establish  regular  times  and  places, 
not  less  than  once  each  month,  when  motions  requiring  notice 
and  hearing  may  be  made  and  disposed  of;  but  the  judge  may 
at  any  time  and  place,  and  on  such  notice,  if  any,  as  he  may 
consider  reasonable,  make  and  direct  all  interlocutory  orders, 
rulings  and  proceedings  for  the  advancement,  conduct  and  hear- 
ing of  causes.  If  the  public  interest  permits,  the  senior  cir- 
cuit judge  of  the  circuit  may  dispense  with  the  motion  day 
during  not  to  exceed  two  months  in  the  year  in  any  district."2 

When,  at  the  hearing  of  a  motion,  the  opposite  party  is  not 
represented,  proof  of  service  must  be  shown  by  affidavit,  or 
admission,  and  the  hearing  then  proceed  ex  parte?  When 
the  moving  party  does  not  then  appear,  his  motion  will  be  dis- 
missed. When  both  sides  are  represented,  the  moving  party 
has  the  right  of  opening  and  replying.4  The  English  rule  was 
that,  "in  injunction  cases,  where  upon  an  order  to  dissolve  an 
injunction  nisi  the  plaintiff  shows  cause  upon  the  merits  con- 
fessed in  the  answer;  then  no  reply  is  allowed,  the  motion  for 
the  order  nisi  being  considered  as  the  application,  to  which  the 
plaintiff  answers  by  showing  cause  upon  the  merits ;  after  this, 
the  defendant's  counsel  is  allowed  to  argue  against  the  cause 
shown  by  the  plaintiff,  and  this  is  considered  as  the  reply."  5 
As  a  general  rule,  no  person  can  be  heard  in  support  of  a 
motion  unless  he  has  been  one  of  the  parties  who  gave  notice 
of  it.6  But  when  the  object  of  a  motion  is  to  reverse  the  con- 
clusion of  a  master,  it  seems  that  all  persons  interested  in  the 
master's  report  are  entitled  to  be  heard  in  its  support.7 

Proof  of  facts,  which  are  not  established  by  documents,  is 
then  regularly  given  by  affidavits; 8  but,  in  the  Circuit  Court  of 

made  that  the   counsel   should  only  399.     See  also  DanielFs  Ch.  Pr.   (2d.. 

make  one  motion  apiece  in  rotation;  Am.  ed. )    \<$t. 

and  that  if  by  chance  the  court  rose  2  Efl-  RuIe  6- 

before  the  whole  bar  had  been  gone  » Darnell's  Ch.  Pr.    (2d   Am.  ed.) 


through,    the    motion    should    begin 
next  morning  with  him  whose  turn 


1799. 

4  Ibid. 

5  Ibid. 

it  was  to  move  at  the  adjournment.  6  Stubbs  v.  Sargon,  3  Beav.   408; 

The   business   was   thus   both    more       Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1793. 
equally    distributed    and    much    bet-  7  Johnston  v.  Todd,  5  Beav.  394; 

ter  done."     Campbell's  Lives  of  the       Daniell's  Ch.  Pr.  (2d  Am.  ecU   I793_ 
Chief   Justices,    ch.   xxxiv,    pp.    39S,  8  Infra,  §§  334-338. 


§    252]  ARGUMENT    OF    MOTION.  805 

the  United  States  for  the  Eastern  District  of  Pennsylvania,  a 
valid  rule  provides:  that  "on  all  motions  or  rules  to  show  cause, 
on  the  hearing  of  which,  facts  are  to  be  investigated,  the  testi- 
mony of  witnesses  shall  be  taken  by  deposition  in  writing 
*  *  *  and  no  witness  shall  be  examined  at  the  bar  unless 
by  special  previous  order  of  the  court ;"  9  and  a  witness  there 
may  be  subpoenaed  to  give  testimony  by  deposition  for  use  on 
such  a  hearing  in  an  action  at  law. 

At  the  hearing,  if  the  English  practice  which  prevails  to 
some  extent  in  the  Eirst  Circuit  should  be  followed,  any  affi- 
davit might  be  read  by  either  party  that  had  been  hied  in  the 
clerk's  office  before  the  hearing.  If  an  affidavit  were  filed  too 
late  for  the  other  side  to  take  a  copy  of  it,  or  to  obtain  an  affi- 
davit controverting  facts  stated  therein,  that  was  a  ground  for 
moving  to  postpone  the  hearing.  No  affidavit  filed  previous  to 
the  entry  of  the  motion  could  be  used  by  the  moving  party, 
unless  he  had  in  his  notice  of  motion  stated  specifically  that 
he  intended  to  use  it.  By  permission  of  the  court,  subsequent 
affidavits  may  be  served,  provided  that  the  opposite  party  is 
given  a  reasonable  opportunity  to  answer  the  same.11  A  sepa- 
rate notice  to  that  effect,  if  served  a  reasonable  time  before 
the  hearing  of  the  motion,  might,  however,  be  sufficient.12  This 
subject  is,  however,  by  local  rule  or  custom  regulated  differently 
in  the  different  circuits.  A  verified  answer  has  the  effect  of 
an  affidavit.13 

In  Xew  York,  no  affidavit  in  chief  can  be  read  in  support  of 
a  motion  unless  a  copy  of  the  same  has  been  served  on  the  ad- 
verse party.14  Affidavits  upon  information  and  belief,  where  the 
grounds  of  the  belief  are  set  forth,  may  be  read  in  support  of 
a  motion,15  and  other  proof  which  would  be  incompetent  upon 
a  trial  may  be  used.16 

9  Rule  7,  §  4.     Despeaux  v.  Penn-  14  Xorthrup  v.  Village  of  Sidney, 

sylvania  R.  Co..  147  Fed.  926.  97   App.  Div.    (X.  Y.)    271. 

'  10  Despeaux    v.    Pennsylvania    R.  "City  <>f  Detroit  v.  Detroit  City 

Co.,  147  Fed.  926.  l\v.  Co..  54  Fed.  1. 

URunino    v.    Mariano,    65    App.  M  Casey  v.  Cincinnati  Typographi- 
Div.   (N.  Y.)   314.  317.  cal  Union  No.  3.  12  L.R.A.   193,  4.", 
lZDaniell's  Ch.  Pr.   (2d  Am.  ed.)  Fed.   135.   147:    Coeur  d'Alfene   Am. 
1797     1798  Mining  Co.  v.  Mining  Union  of  War- 
is  Dadv  "v.  Georgia  &  A.  Ry.  Co.,  den,    19    L.R.A.    382,    51    Fed.    260; 
112   Fed.   838    844.  Mercantile  Trust  Co.  v.  Texas  &   P. 


S06 


MOTIONS  AXD  PETITIONS. 


[§   253 


§  253.  Petitions  in  general.  A  petition  is  a  request  in 
writing  directed  to  the  judge  or  judges  of  the  court,  and  show- 
ing some  matter  or  cause  whereupon  the  petition  prays  some 
direction  or  order.1  It  mav  be  made  bv  one  who  is,  or  bv  one 
who  is  not.  a  party  to  a  cause  pending  in  the  court.  Lord 
Erskine  said  formerly:  "I  do  not  find  that  there  are  anv 
precise  or  positive  boundaries  betwen  motions  and  petitions, 
as  they  are  to  be  applied  to  carry  into  effect  decrees  and  orders, 
so  as  to  exclude  all  discretion  in  the  court  to  grant  or  refuse 
them,  according  to  circumstances ;  but,  generally  speaking, 
motions  which  have  for  their  object  the  giving  effect  to  decrees 
or  orders,  should  be  confined  to  cases  where  the  order  which 
is  to  be  made  upon  the  motion  arises  out  of  recent  proceed- 
ings upon  which  there  is  no  doubt ;  for  as  the  adverse  party 
knows  nothing  but  by  •the  notice,  containing  only  the  name  of 
the  cause  and  what  is  prayed  of  the  court,  the  proceedings 
ought  to  be  recent  arid  notorious,  so  as  that  the  adverse  party 
may  be  supposed  to  be  perfectly  cognizant  of  all  the  steps  and 
proceedings  in  the  cause,  as  much  as  if,  at  a  greater  expense, 
thev  were  recited  in  the  petition."2  But  petitions  are  now 
rarely  filed  by  a  party  to  a  cause,  since  any  relief  which  he 
desires  can  usually  be  obtained  equally  well  by  a  motion  sup- 
ported by  an  affidavit  containing  the  allegations  which  would 
be  necessary  in  a  petition.  A  party  who  by  his  contempt  has 
forfeited  the  right  to  make  a  motion  should  apply  by  petition. 
It  has  been  hold,  in  Xew  Jersey,  that  where  a  motion  is 
founded  upon  prior  proceedings  in  the  cause,  the  proper  prac- 
tice is  to  present  the  matter  by  a  written  petition,  so  that  the 
grounds  of  the  application  can  be  made  a  matter  of  record.3 
Petitions  are  usually  filed  by  some  person  not  a  party  in 
order  to  obtain  the  benefit  of  proceedings  in  a  cause  pending 
in  the  court,  or  else  to  obtain  an  order  in  relation  to  some 
matter  which  is  not  the  subject  of  any  litigation  in  it.     Peti- 


Ry.  Co.,  51  Fed.  529,  542;  Buck  v. 
Hermance,  1  Blatch.  322;  Mathews 
v.  Ironclad  Mfg.  Co..  19  Fed.  321; 
infra.  §§  232.  269.  386. 

§  253.     l  2  Barb.  Ch.  Pr.  579. 

2  Lord    Shiphrooke    v.    Lord    Hin- 


di inbrook,  13  Yes.  387.  393.  See, 
however.  Nicholson  v.  Squire,  16 
Ves.  259,  260. 

3Holcomb    v.    Coryell,    12    N.    J. 
Eq.  289. 


§    253]  PETITIONS.  so  7 

tions  which  are  made  in  a  cause  are  termed  came  petitions.4 
The  most  common  instances  of  cause  petitions  are  petitions  for 
the  appointment  of  a  next  friend,  petitions  of  intervention, 
petitions  for  payment  out  of  a  fund  in  the  hands  of  an  officer 
of  the  court,  and  petitions  for  leave  to  sue  a  receiver.  But  in 
most,  of. these  cases,  the  application  can  also  be  made  by  motion, 
unless  a  long  statement  of  facts  is  needed  to  show  the  right 
of  the  applicant  to  relief.5  It  has  been  held  that  the  right 
to  intervention,  for  which  no  provision  has  been  made  by  a 
previous  order  or  decree,  can  only  be  made  by  a  petition.6  The 
most  common  instances  of  petitions  which  are  not  cause 
petitions  are  petitions  for  the  appointment,  removal,  or  resig- 
nation of  a  trustee,  and  petitions  for  the  appointment  of  the 
guardian  of  an  infant,  and  the  maintenance  of  the  infant  out 
of  his  property.  In  Xew  York,  applications  affecting  trust 
funds  may  be  instituted  by  petition.7 

After  a  decree  which  purports  to  finally  dispose  of  the  suit, 
one  plaintiff  cannot  obtain  relief  against  another  by  means  of 
a  petition  setting  up  matters  which  could  not  have  been  intro- 
duced by  an  amended  or  supplemental  bill;  at  least  without 
notice  to  the  party  against  whom  he  seeks  relief.8  Ordinarily, 
a  petition  cannot  be  presented  in  a  cause  before  the  bill  has 
ben  tiled.9  A  petition  for  leave  to  sue  in  forma  pauperis  is 
an  exception  to  this  rule; 10  and  in  an  extraordinary  case  a  stay 
order  might  perhaps  be  granted  upon  a  petition  before  the 
filing  of  a  bill.11  The  objection,  that  a  party  who  has  proceeded 
by  a  petition  should  have  filed  a  cross-bill,  a  supplemental  bill. 
or  a  supplemental  answer,  is  too  late  when  not  taken  till  after 
an  answer  to  the  petition  and  a  decree  thereupon.12     A  paper 

4DanielI's  Ch.   Pr.    (2d   Am.  ed.)  9  Daniell's   Ch.  Prl    I  2d   Am.   cd. ) 

1801.  1801. 

5  Jones  v.   Roberts.   32   Sim.    ]89;  ™ Infra,  §  41:5. 

Barker  v.  Todd.  15  Fed.  2(i5.  H  Mayor  of  London  v.  Bolt.  5-Ves. 

6  Grand  Trunk  Ry.  Co.  v.  Central        120  Darnell's  Ch.   Pr.    (2d   Am.  ed.) 
Yt.   R.  Co..  93    Fed.   501.     See   infra,        1801. 

§§258.259.  12  Kelsey   v.    HobbV,    16   Pet.   269, 

'Matter    of    Foster.    15    Hun    (X.  277.    10'    L.  ed.  901.  90:5 :    Col.urn   v. 

Y.)   387:  Matter  of  Ungricb,  201  N.  Cedar  Y.  C.  &  L.  Co..  138  C.  S.  196, 

Y.  415,  222.  :54  L.  ed.  876,  886. 
8  Smith    v.    Woolfolk,    115    C.    S. 

143,  29  L.  ed.  357. 


SOS  MOTIONS  AND  PETITIONS.  [§    254 

improperly  styled  a  petition  may,  if  it  contains  the  necessary 
allegations,  be  sustained  as  a  dependent  original  bill,13  and  a 
paper  improperly  described  as  a  cross-bill  or  other  bill  not 
•original,  may  be  sustained  as  a  petition.14 

§  254.  Form  of  petitions  and  practice  upon  them.  A 
petition  should  be  properly  entitled  in  the  cause  in  which  it  is 
presented.1  When  not  a  cause  petition,  a  petition  is  entitled 
"In  the  matter  of  the  application  of,"  &c.  The  petitioner,  if 
not  a  party  to  a  cause  in  which  the  petition  is  filed,  should 
state  his  name,  residence,  and  description.2  Where  a  petition 
is  founded  upon  a  former  decree  it  is  sufficient  to  state  that 
■decree  without  setting  out  the  papers  upon  which  that  decree 
was  rendered.3  Where  its  title  recites  the  name  of  a  pending 
suit  or  proceeding,  the  petition  need  not  state,  in  its  body,  the 
pendency  of  the  same ; 4  although  the  better  practice  is  to  make 
such  a  statement.  A  petition  should  contain  no  scandal  or 
impertinence ;  which,  as  in  any  other  proceeding,  may  be  ex- 
punged. 

It  is  the  usual  practice  to  verify  a  petition  by  the  oath  of 
the  petitioner.  An  affidavit  by  the  petitioner,  that  the  alle- 
gations in  the  petition  "are  true  as  he  verily  believes,"  was 
held  to  be  sufficient;  and,  in  the  absence  of  a  traverse,  they 
were  presumed  to  be  true  upon  an  appeal.6  A  petition  need 
not  be  signed  by  counsel  unless  it  seeks  a  rehearing  on  appeal.7 
Petitions  are  usually  signed  by  the  party  making  them,  either 
personally  or  by  his  solicitor.8 

''Petitions  are  either  for  orders  of  course,  or  for  special 
orders.  Petitions  for  orders  of  course  are  forthwith  granted, 
without  any  attendance  being  ordered ;  if  they  are  for  special 

13  Central  Tr.  Co.  of  N.  Y,  v.  6  Louisville  Trust  Co.  v.  Louis- 
Marietta  &  N.  G.  R.  Co.,  63  Fed.  ville,  New  Albany  &  C.  Ey.  Co., 
492.  174    U.    S.   674,    687-689,    43    L.   ed. 

14  Heath  v.  Erie  Ry.  Co.,  9  Blatchf.  1130,  1135,  1136,  s.  c.  as  Farmers' 
316;   supra,  §  2.33;   infra,  §  259.  Loan  &  Trust  Co.  v.  Louisville,  New 

§  254.  1  Darnell's  Ch.  Pr.  (2d  Albany  &  C.  Ry.  Co.,  103  Fed.  110, 
Am.  ed.)    1802. 

2  Glazbrook  v.  Gillatt,  9  Beav.  492. 

3  Davis  v.  Davis,  65  Fed.  380. 

4  In  re  Goldberg,  117  Fed.  692. 
SDaniell'a  Ch.   Pr.    (2d   Am.  ed.) 

1S03;    Eq.   Pule  21,  §  239,  supra. 


115. 

7  1)aniell's   Ch.   Pr. 

(2d   Am.  ed.) 

1 S03. 

• 

8  Daniell's   Ch.  Pr. 

2d    \m.   ed.) 

1S03. 

§    254]  PETITIONS.  SOS 

matters  a   day   is   appointed   for  hearing   them.      Most   things 
which  may  be  moved  for  of  course,  may  also  be  obtained  as  of 
course,  upon  petition."9     All  petitions  which  arc  for  matters 
not  granted  as  of  course  must  be  served   upon  all  parties  in- 
terested in  the  matter  prayed  for  in  them.     Service  is  made  sub- 
stantially in   the  same  way  and   at  the  same  time  before  the 
hearing  as  that  of  notices  of  motions.10     If  actual,   and   not 
constructive,  service  is  required,  it  seems  that  it  must  be  made 
by  delivering  a   copy  of   the   petition,   and   at   the   same   time 
showing  the  original  to  the  person  served,11  unless  the  court 
otherwise  directs.     By  the  Chancery  practice  objections  to  the 
form  of  a  petition  could  regularly  be  taken  only  by  demurrer.12 
It  has  been  said:  that  in  the  case  of  a  petition  for  interven- 
tion, the  right  of  the  petitioner  to  intervene  should  be  contested 
by  plea,  demurrer  or  motion,  and  is  waived  by  an  answer  upon 
the  merits.13    By  answering  a  respondent  loses  his  right  to  de- 
mur,14 and,   it  has  been  held,  waives  the  objections  that  the 
petitioner  had  a  complete  and  adequate  remedy  at  law,15  that 
he  should  have  proceeded  by  bill  instead  of  by  petition  ; 16  and, 
if  a  receiver,  that  he  has  not  obtained  leave  to  sue.17     Adverse 
parties  may  file  answers  denying  the  facts  stated  in  a  petition, 
or  setting  up  other  facts  in  avoidance.      Such  answers  should 
be  verified  by  affidavit.18     If  the  parties  are  at  issue  as  to  the 
facts,  according  to  the  more  formal  practice  testimony  may  be. 
taken  as  in  the  regular  course  of  a  suit ; 19  but  the  more  usual 
course  is  for  the  parties  on  either  side  to  support  their  claim 
by  affidavits,  in  the  same  manner  as  when  supporting  or  op- 
posing a  motion.20     Proceedings  upon  the  hearing  of  petitions- 
are  similar  to  those  upon  the  hearing  of  motions.21    It  has  been 
said  by  Daniell  that  a  petition  cannot  be  amended  by  adding 

9  Daniell's  Ch.  Pr.    (2d  Am.   ed.)  15  Newman  v.  Moody,  19  Fed.  858. 


1802. 


16  Newman     v.     Moodv.     1!)     Fed. 


io  See    Rules    5    and    (i    Daniell's  858 ;  Horn  v.  Tere  Marquette  R.  Co., 

Ch.  Pr.   (2d  Am.  ed.)    1804.  151    Fed.  626*,  6291 

*H  Daniell's  Ch.  Pr.    (2d  Am.  ed.)  n  Newman  v.  Moody,  lit  Fed.  858. 

3804.  iSMitford's  &  Tyler's  PI.  44S. 

12  U.    S.    R.    S.,    §    054;    Newman  19  Mitford's  &  Tyler's  PI.  448. 

V.  Moody,  19  Fed.  858.  20  Daniell's  Ch.  Pr.   (5th  Am.  ed.) 

13  Horn  v.  Pere  Marquette  R.  Co.,  1608. 

151  Fed.  626,  629.  21  Daniell's  Ch.  Pr.   (2d  Am.  ed.>. 

14  Newman  v.  Moody,  19  Fed.  858.  1805. 


810 


MOTIONS  AND  PETITIONS. 


[§   255 


to  it  a  statement  of  facts  which  have  occurred  since  it  was 
filed;22  but  an  English  judge  has  held  otherwise.23 

§  255.   Orders.      An  order  is  a  direction  of  the  court  or  a 
judge  thereof  in  writing.1     A  telegram  may  be  an  order,  but  a 
message  by  telephone  is  not.2    The  absence  of  a  formal  order  of 
a  court  need  not  necessarily  prevail  over  its  essential   action; 
and  a  court  of  review  may  treat  the  case  as  if  an  order,  evi- 
dently  intended,    had  been   made.3      Orders    are   described   as 
either  judge's  orders  or  court  orders.     The  distinction  may  be 
of  importance,  since,  formerly  at  least,  a  judge's  order  upon 
an   application   for   habeas   corpus  was   not   appealable.       The 
rules  of  the  District  Court  for  the  Southern  District  of  Xew 
York    provide:      "In    any    action    or    proceeding    any    order, 
whether  known  in  practice  as  a  court  order  or  judge's  order, 
may  be  made  and  entered  by  any  judge."  5     It  has  been  said : 
that   a   court  cannot   make   an   order  nunc  pro   tunc,   as   of  a 
preceding   term;    although    the   judge   has,    at   such   preceding 
term,  expressed  his  willingness  to  make  the  same.6     When  con- 
tained in  a  decree,  an  order  is  termed  a  decretal  order.     An 
order  is  regularly  entitled  in  the  cause  in  which  it  is  entered, 
and  it  is  irregular  to  entitle  the  same  order  in  several  cases.7 
Such  orders,  when  not  objected  to,  are  valid,8  and  where  the 
parties  to  the  two  suits  were  the  same,  and  orders  entitled  m 
both  were  thus  made  concerning  a  receivership  under  an  order 
in  one ;  it  was  held,  that  the  objection  that  there  had  been  no 
order   formally   extending   the   receivership   to  the   other   suit, 
could  not  subsequently  avoid  an  order  therein  for  the  sale  of 
property  by  such  receiver.9 


22Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
1610. 

23Malins,  V.  C,  In  re  West- 
brook's  Trusts.  L.  R.  11  Eq.  252. 

§  255.  ISee  U.  S.  R.  S.,  §  719; 
Klein  v.  Southern  Pac.  Co.,  140  Fed. 
213. 

2  See  Schofield  v.  Horse  S.  C.  Co., 
65  Fed.  433.  435;  State  v.  Holmes, 
56   la.  588,  41  Am.  Rep.  121. 

3  Gila  Bend  Reservoir  &  Irr.  Co. 
v.  Gila  Water  Co.,  202  U.  S.  270,  50 
L.  ed.  1023. 


4  Carper  v.  Fitzgerald,  121  U.  S. 
87,  30  L.  ed.  882.     See  §  467,  infra. 

5  U.  S.  D.  C.  S.  D.  X.  Y.,  Rule  25. 

6  Klein  v.  Southern  Pac.  Co.,  140 
Fed.  213. 

7  August  v.  Fourth  Nat.  Bank,  9 
N.  Y.  Supp.  270. 

8  Gila  Bend  Reservoir  &  Irr.  Co. 
v.  Gila  Water  Co.  202  U.  S.  270, 
273,  50  L.  ed.  1023. 

9  Gila  Bend  Reservoir  &  Irr.  Co. 
v.  Gila  Water  Co.,  202  U.  S.  270, 
50  L.  ed.  1023. 


§  255] 


ORDERS. 


811 


It  has  been  held:  that  restraining-  orders  may  be  made  in  a 
suit,  before  the  bill  in  equity  is  tiled;10  that  a  receiver  eaiinol 
lie  appointed  upon  petition,  before  the  bill  is  tiled;11  that  a  re- 
ceiver may  be  appointed  by  a  judge  at  chambers  upon  the 
presentation  of  a  bill  and  answer  which  have  not  been  filed,  in 
an  order  containing  a  direction  that  it  shall  Take  effect  upon 
the  filing  thereof;  that  thereupon  the  appointment  relates  back 
to  the  date  of  the  judge's  signature,  so  as  to  cut  off  all  inter- 
venings  rights ; 12  and  that  when  an  order  is  filed  before  the 
date  recited  in  the  same,  it  takes  effect  from  its  filing,  and 
not  from  the  latter  date.13 

Orders  may  be  made  at  any  place  within  the  territorial  juris- 
diction of  the  court.14  ''The  District  Courts,  as  courts  of 
admiralty  and  as  courts  of  equity,  shall  be  deemed  always  open 
for  the  purpose  of  filing  any  pleading,  of  issuing  and  returning 
mesne  and  final  process,  and  of  making  and  directing  all  inter- 
locutory motions,  orders,  rules,  and  other  proceedings  prepara- 
tory to  the  hearing,  upon  their  merits,  of  all  causes  pend- 
ing therein.  Any  district  judge  may,  upon  reasonable  notice 
to  the  parties,  make,  direct,  and  award,  at  chambers  Or  in  the 
clerk's  office,  and  in  vacation  as  well  as  in  term,  all  such 
process,  commissions,  orders,  rules,  and  other  proceedings,  when- 
ever the  same  are  not  grantable  of  course,  according  'to  the 
rules  and  practice  of  the  court."  16  Whatever  a  judge  may  law- 
fully do  in  chambers,  he  may  do  at  any  other  place  within  the 


10  St.  Louis  &  S.  F.  R.  Co.  v.  Had- 
ley,  155  Fed.  220. 

11  In  re  Brant,  96  Fed.  257;  and 
cases  cited  infra,  §  315. 

12  Horn  v.  Pere  Marquette  R.  Co., 
151  Fed.  (520,  (333.  Vontro,  Wilcox 
v.  Nat.  Shoe  &  Leather  Co.,  67  App. 
Div.    (N.  Y.)    466. 

13  In  re  MeCall.  C.  C.  A.,  145 
Fed.  898. 

*14Jn  re  Tampa  S.  R.  Co..  168 
U.  S.  583,  588,  42  L.  ed.  58!).  590; 
Goodyear  Dental  Vulcanite  Co.  v. 
Folsom,  3  Fed.  509,  ft  lias  been 
held,  that  when  a  District  Judge 
lias,  under  the  order  of  the  Cir- 
cuit   Judge,    tried    a     case     in     an- 


other district  than  his  own,  lie 
may  hear  in  his  own  district  a  mo- 
tion for  a  new  trial  when  the  coun- 
sel I0i*  all  parties  waive  his  return 
to  the  district  of  the  trial  for  the 
purpose  of  hearing  and  deciding  the 
motion.  Cheesman  v.  Hart.  42  Fed. 
!)8.   105. 

15  .hid.  (ode.  §  0.  36  Stat,  at 
L.  10S7.  It  has  been  saijid:  that 
any  order  in  a  suit  in  equity  which 
tends  to  prepare  the  cause  for  a 
hearing,  or  to  preserve  the  subject- 
matter  until  a  hearing,  may  he 
made  at  chambers.  Horn  v.  Pere 
Marquette  R.  Co.,  151  Fed.  626. 
636.  An  prder  for  the  release  of  a 
vessel  which  has  been   libelled,  may 


812 


MOTIONS  AND  PETITIONS. 


[§   255 


district.16  It  has  been  held  that  the  clerk  may  make  entries 
of  adjournments  by  a  rubber  stamp,17  and  that  they  may  be 
recorded  on  days  subsequent  to  their  entry  at  any  time  during 
the  term.18  It  has  been  held:  that  an  order  in  a  suit  in  equity, 
pending  in  another  district  of  the  same  circuit,  may  be  made 
by  a  Circuit  Judge  in  any  part  of  the  circuit.19  Where  no 
objection  was  taken  below,  it  was  held:  that  an  appeal  from  an 
order,  upon  an  application  for  the  writ  of  habeas  corpus,  might 
be  argued  before  the  Circuit  Justice  at  chambers  in  any  district 
of  the  circuit.20  If  the  former  practice  is  followed  in  a 
District  Court,  when  all  judges  authorized  to  sit  therein  are 
absent  from  the  circuit,  an  order  may  be  made  by  a  Justice  of 
the  Supreme  Court  sitting  anywhere  within  the  United  States.21 
The  Judicial  Code  provides  that  "no  justice  of  the  Supreme 
Court  shall  hear  or  allow  any  application  for  an  injunction 
or  restraining  order  in  any  cause  pending  in  the  circuit  to 
which  he  is  allotted,  elsewhere  than  within  such  circuit,  or  at 
such  place  outside  of  the  same  as  the  parties  may  stipulate  in 
writing,  except  when  it  cannot  be  heard  by  the  district  judge 
of  the  district."22  It  is  customary  to  recite  in  an  order  or 
judgment,  upon  whose  motion  the  same  was  granted;  but  it 
has  been  said  that  this  is  not  necessary,  nor  appropriate,  al- 
though the  order  or  judernent  should  show  who  moved  for  the 
relief  and  what  he  asked.23  Where  an  order  or  judgment  grants 
less.24  or  other  relief25  than   that  for  which  the  mover  asks, 


be  made  at  chambers.  U.  S.  v.  The 
Little  Charles.  1  Brock.  380:  Fed. 
Cas.  No.  35,013. 

16  Murphy  v.  Herring-Hall-Marv- 
in Safe   Co.,   184   Fed.  495. 

17  Harlan  v.  MeGourin.  218  U.  S. 
442,  44H.  54  L.  ed.  1101,  1105.  31 
Sup.  Ct.  Rep.  44,  21   Ann.  Cas.  849. 

18  U.  S.  v.  Louisville  &  X.  R.  Co., 
177  Fed.  7S0.  785. 

19  Horn  v.  Pere  Marquette  R.  Co., 
151  Fed.  626,  635,  Cf.  Hollon  v. 
Parker,  131  U.  S.  221,  225,  33  L. 
ed.   123.   124. 

20  Roberts  v.  Reilly,  116  U.  S.  80, 
93,  29  L.  ed.  544.  548. 

21  U.  S.  v.  Louisville  &  P.  C.  Co., 


4  Dill.  601;  Searles  v.  Jacksonville, 
P.  &  M.  R.  Co.,  2  Woods.  621 ;  U.  S. 
R.  S.,  §  719,  8  Ry.  &  Corp.  L.  J.  200. 
Tims,  in  United  States  v.  Louisville, 
&c,  Canal  Co..  4  Dill.  601,  Fed.  Cas. 
Xo.  15.633,  Mr.  Justice  Miller  grant- 
ed an  injunction  upon  a  bill  pending 
in  the  Sixth  Circuit,  at  chambers  in 
New  Jersey;  although  he  was  not 
the  Justice  allotted  to  that  circuit. 
22Jud.  Code,  §  264,  36  Si.  at  L. 
1087. 

23  Davis  v.  Fogarty,  134  App.  Div. 
(X.  Y.)  500. 

24  Ibid. 

25  Raymond   v.   Tiffany,   115   App. 
Div.   (X.  Y.)   350.  where  terms  were 


§    255]  ORDERS.  813 

a  recital  that  it  was  made  upon  his  motion  is  erroneous,  and 
if  inserted  should  be  striken  out  upon  a  resettlement.  The 
recital  in  an  order  that  it  was  granted  "upon  all  the  papers  and 
proceedings' '  was  said  to  be  too  indefinite.26  Where  improper 
recitals  are  embodied  in  an  order,  it  has  been  held  by  a  State 
court:  that  the  objection  cannot  be  made  by  an  appeal  from 
the  order,  but  only  by  a  motion  for  a  resettlement  and  an  appeal 
from  the  order  denying  such  motion.27  It  is  possible  that  in 
the  Federal  courts,  there  might  be  a  remedy  by  an  application 
to  the  Circuit  Court  of  Appeals  for  a  mandamus.28  It  is  usual, 
though  not  indispensable,  in  the  Federal  courts,  before  the 
entry  of  an  order  or  decree  upon  the  decision  of  the  court  after 
argument,  to  serve  upon  the  attorney  for  the  opposite  party  a 
copy  of  the  paper  proposed  to  be  entered,  with  a  notice  that  it 
will  be  presented  for  settlement  at  a  specified  time  and  place.29 
If  the  attorneys  live  in  the  same  town  as  the  judge,  one  day's 
notice  of  settlement  is  usually  sufficient.  It  is  the  better  practice 
for  the  solicitor  who  obtains  an  order  upon  an  interlocutory 
application,  to  serve  a  copy  .of  the  same  upon  the  solicitor  of 
the  opposite  party.  When  the  order  is  made  without  notice 
to  a  party,  in  his  absence,  it  is  the  duty  of  the  clerk  to  mail 
him  a  copy  of  the  same.30  Usually  attorneys  of  record  are 
chargeable  with  notice  of  all  proceedings  taking  place  in  open 
court.31  If  the  other  party  takes  a  step  in  the  action  after  an 
ex  parte  order  has  been  obtained  but  before  its  service,  "that 
step  in  itself  regular,  the  order  which  had  been  obtained  and 
not  served  cannot  afterwards  be  acted  upon,  if  it  will  inter- 
fere with  the  step  so  taken."32  Where  a  decree  directs  the 
performance  of  a  specific  act,  it  should  prescribe  the  time  with- 
in which  the  act  shall  be  done,  and  the  defendant  will  be  bound 

imposed     upon     the     moving    party  29  Nevada     Nickel     Syndicate     v. 

without  his  consent;  Rector,  &c„  of  Nat.  Nickel  Co.,  103  Fed.  391,  394. 

St.  Stephen's  Church  v.  Rector,  &c,  30  Eq.  Rule  4. 

of    the   Church    of   the    Transfigura-  31  Rio   Grande   Dam   &    Irrigation 

tien,  134  App.  Div.   (N.  Y.)   452.  Co.  v.  U.  S.,  215  U.  S.  2t>ti,  54  L.  ed. 

26  Faxon   v.   Mason,   87    Hun    (N.  190.      See    infra,    Chapter    on    Ap- 
Y.),   139.  peals. 

27  Matter  of  Radam  Microhe  Kill-  32  Nevada    N.    S.    v.    National    N. 
er  Co.,   114  App.  Div.    (N.  Y.)    199.  Co.,  103  Fed.  391,  394. 

28  Infra,  §  467. 


814 


MOTIONS  AND  PETITIONS. 


[§   255 


without  further  service  to  take  notice  thereof.33  Ordinarily,  if 
it  is  intended  to  enforce  the  order  by  contempt  proceedings, 
it  should  be  served  personally  upon  the  party  to  be  affected  by 
it,34  unless  possibly,  in  an  extraordinary  case,  an  order  should 
be  granted  allowing  substituted  service.35 

Interlocutory  orders  made  upon  motion  may  be  altered  or 


vacated      at     anv     time     before     the     final     decree 


and 


orders  made  ex  parte  upon  petition  may  also  be  dis- 
charged upon  motion  for  irregularity.37  According  to- 
the  English  practice,  orders  made  after  a  hearing  upon 
a  petition  could  not  be  altered  or  discharged  without  the  filing 
of  a  petition  for  a  rehearing,  or  upon  appeal.38  A  court  has, 
during  the  term  at  which  it  is  entered,  the  power  to  review  and 
modify  or  set  aside  any  order  or  decree,  interlocutory  or  final.39 
It  has  been  held  to  be  improper  to  file  a  bill  of  review  or  sup- 
plemental bill  in  the  nature  of  the  same  in  order  to  set  aside 
an  interlocutory  order  or  decree.40  It  has  been  held  that  an 
order  in  an  action  at  common  law  staying  plaintiff's  proceedings 
till  he  pays  costs  of  a  former  action  is  res  ad  judicata  upon  a  sub- 
sequent motion,  and  is  in  so  far  a  final  order  that  it  cannot  be 
modified  or  set  aside  at  a  subsequent  term.41  It  has  been  held 
that,  even  in  a  criminal  case,  the  court,  at  a  term  after  final 
judgment,  may  enter  an  order  correcting  a  clerical  error,  nunc 
pro  tunc  as  of  the  preceding  term.42     An  order  granted  after  a 


33  Eq.   Rule   8.     See   infra.   §   428. 

34  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
178!):  Church  v.  Marsh.  2  Hare,  652. 

35  Re  Cary,  3  0  Fed.  022. 

36  Hunter    v.    .    6    Sim.    429; 

Lorton  v.  Seaman.  9  Paige  (  X.  Y. ) , 
609;  People  v.  Brower.  4  Paige  (  N. 
Y. ),  405;  Stafford  v.  Brown.  4  Paige 
(X.  Y.).  360. 

87Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1616.  1S07:  Eslava  v.  Mazange,  1 
Woods.  623.  627:  Nelson  v.  Barker, 
3  McLean,  379. 

38  Tn  re  Marrow.  Craig  &  Ph. 
142:  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1807. 

39  Bishop    v.    Willis,    2    Yes.    Sen. 


113:  In  re  Marrow.  Craig  &  Ph. 
142;  Daniell's  Ch.  Pr.  (2d  Am.  ed. 
1808.  But  see  In  re  Dovenby  Hos- 
pital, 1  Myl.  &  Cr.  279;  West  v. 
Smith.  3  Beav.  306. 

40  Doss  v.  Tyack.  14  How.  297, 
313.  14  L.  ed.  428.  435:  Bassett  v. 
U.  S..  9  Wall.  38,  41.  19  L.  ed.  548, 
549;  Henderson  v.  Carbdndale  C.  & 
('.  Co.,  140  V.  S.  25,  4d.  35  L.  ed. 
332.   338.      See    infra.   §   443. 

41  Buckles  v.  Chicago.  M.  &  St. 
P.  Ry.  Co.,  53  Fed.  566. 

42  c.  &  A.  Potts  Co.  v.  Creager, 
71  Fed.  74.  In  re  Wright.  134  U.  S. 
136.  33  L.  ed.  865.  Regularly  the 
date  of  an  order  should  be  the  day 
when    it    was    pronounced,    not    the 


§    255]  ORDERS.  815 

hearing  before  one  judge  of  a  court  will  not,  unless  under  ex- 
traordinary circumstances,  be  modified  or  vacated  by  another 
except  upon  appeal.48     Unless  limited  by  their  terms,  or  by  a 
rule,  or  by  statute,44  orders  within  the  jurisdiction  of  the  judge 
•or  court  that  grants  them  remain  in  force  until  discharged  by  a 
subsequent  order;45  or  until  the  final  decree,  when,  unless  re- 
newed by  its  terms,  all  orders  expire.46     Before  the  Evarts  Act, 
no  appeal  lay  before  the  final  decree  from  an  interlocutory  order 
which  was  not  final  in  its- nature.47     It  has  been  said  by  Chief 
Justice  Taney,  that  "In  this  respect  the  practice  of  the  United 
States  chancery  courts  differs  from  the  English  practice.     For 
appeals  to  the  House  of  Lords  may  be  taken  from  an   inter- 
locutory order  of  the  chancellor,  which  decides  a  right  of  prop- 
erty in  dispute;  and  therefore  there  is  no  irreparable  injury  to 
the  party  by  ordering  his  deed  to  be  cancelled,  or  the  property 
he  holds  to  be  delivered  up,  because  he  may  immediately  appeal, 
and  the  execution  of  the  order  is  suspended  until  the  decision 
of  the  appellate  court.     But  the  case  is  otherwise  in  the  courts 
of  the   United    States,    where   the   right    to    appeal   is   by   law- 
limited  to  final  decrees.     And  if  by  an  interlocutory  order  or 
■decree  he  is  required  to  deliver  up  property  which  he  claims, 
or  to  pay  money  which  he  denies  to  be  due,  and  the  order  is 
immediately  carried  into  execution  by  the  Circuit  Court,   his 
right  of  appeal  is  of  very  little  value  to  him,  and  he  may  be 
ruined  before  he  is  permitted  to  avail  himself  of  the  right.     It 
is  exceedingly  important,  therefore,  that  the  Circuit  Courts  of 
the  United  States,   in  framing  their  interlocutory  orders,  and 
in  carrying  them  into  execution,  should  keep  in  view  the  dif- 
ference between  the  right  of  appeal,  as  practiced  in  the  English 
chancery  jurisdiction,  and  as  restricted  by  the  act  of  Congress 

•day  of  its  entry.     Ex  parte  Hookey.  former  overruled  Re  Steele.  156  Fed. 

4    De    G..    F.    &    .1.    4.5(1;    Ex    parte  853;   Ex  parte  Steele.   1112   Fed.  694. 

Wliitton,   13  Ch,  D.  881.  44  See    Eq.    Rule   73   quoted    infra 

43  ("ole   S.   M.    Co.    v.   Virginia   &  §    292. 

■G.    H.    W.    Co..    1    Saw.    685,    889;  «  Eslava    v.    Mazange.    1    Woods, 

Oglesby    v.    Attrill.    14    Fed.    214;  623,  627. 

Xewcomb  v.  Burhank.  159  Fed.  5(i!);  **Gardner   v.   Gardner,    87    X.   Y. 

Ex  parte  Steele.    162   Fed.   694;    Re  714;  Daniell's  Ch.  Pr.   (2d  ^jn.  o.d.) 

Funis.  183  Fed.  859.     But  see  Birch  191)2. 

v.  Steele,  C.  C.  A..  165  Fed.  577;  Re  47  See  infra,  chapters  on  Writs  of 

Steele,   101    Fed.  886;   of  which  the  Errors  and  Appeals. 


81G 


MOTIONS  AND  PETITIONS. 


[§  256! 


and  abstain  from  changing  unnecessarily  the  possession  of 
property,  or  compelling  the  payment  of  money  by  an  inter- 
locutory order." 48  An  appeal  lies  to  the  Circuit  Court  of 
Appeals   from    an    interlocutory   order   or   decree   granting   or 

...  •        .  "49 

continuing  an  injunction  or  appointing  a  receiver. 

§  256.  Judges  who  may  grant  orders.  An  order  may 
he  made  by  any  judge  authorized  to  sit  in  the  court  in  which 
the  cause  is  pending.  In  the  Supreme  Court  it  is  the  custom 
for  each  Justice  to  refer  to  the  full  bench  every  application  of 
importance  which  is  made  to  him.1  Orders  in  a  case  pending 
in  a  District  Court  may  be  made  by  any  judge  of  that  district ;  * 
or  by  any  district  judge,  in  the  same  circuit,  who  has  been 
designated  by  a  circuit  judge  of  the  circuit;  or,  in  the  absence 
of  all  the  circuit  judges,  by  the  Circuit  Justice  of  the  same;3 
or,  in  case  of  the  absence  and  disability  of  all  the  circuit 
judges  and  the  Circuit  Justice,  by  the  Chief  Justice  of  the 
United  States;4  or  by  any  circuit  judge  of  the  circuit,  desig- 
nated by  the  senior  circuit  judge  or  Circuit  Justice  thereof  or 
the  Chief  Justice  of  the  United  States ; 5  or  by  any  member  of 
the  Commerce  Court,  assigned  by  the  Chief  Justice  of  the 
United  States  for  service  therein.6  In  case  of  the  absence  from 
the  district  or  disability  of  the  district  judge,  any  circuit  judge 
of  the  circuit  may  grant  an  injunction  or  restraining  order  in 
any  case  pending  in  the  District  Court.7 

It  is  ordinarily  the  duty  of  a  judge  to  follow  a  ruling  made 
in  the  same  cause ; 8  or  when  rules  of  property  or  practice  are 


48  Forgay  v.  Conrad,  6  How  201, 
205,  12  L.  ed.  404,  406. 

49  Act  of  June  16,  1900,  31  St.  at 
L.  660:    infra,  §  300. 

§  236.  1  Spies  v.  Illinois,  123  U. 
S.  131.  31  L.  ed.  80. 

2  See  Jud.  Code.  §  1.  36  St.  at  L. 
1087;  Birch  v.  Steele,  C.  C.  A.,  165 
Fed.  577. 

3  Jud.  Code,  §  14,  36  St.  at  L. 
1087.  Cf.  Ibid.,  §§  13.  16.  17.  18.  19. 
20.  All  of  these  are  quoted  in  §  370, 
infra.  An  order  made  by  the  Dis- 
trict Judge  of  another  district  in 
the  same  State  who  was  not  sitting 
nor  designated  to  sit  in  the  district 


where  the  suit  was  pending,  the  of- 
fice of  District  Judge  of  the  latter 
district  not  being  vacant,  was  held 
null  and  void.  Am.  L.  &  T.  Co.  v. 
East  &  West  R.  Co..  40  Fed.  182. 

4  Jud.  Code.  §  15,  36  St.  at  L. 
1087:  quoted  infra.  §  370. 

5  Jud.  Code,  §  18.  36  St.  at  L. 
1087 :  quoted  infra,  §  370. 

6  Jud.  Code,  §  205,  36  St.  at  L. 
1087;   quoted  infra,  §  370. 

7  Jud.  Code,  §  264,  36  St.  at  L_ 
1087. 

8  Plattner  Implement  Co.  v.  In- 
ternational Harvester  Co.,  C.  C.  A- 
133  Fed.  376,  379. 


257] 


clerk's  office. 


817 


involved,  in  another  cause,  by  a  judge  of  co-ordinate  juris- 
diction;9 but  when  he  has  so  done,  he  may  be  reversed,  if  the 
court  of  review  construes  the  ruling  to  be  erroneous.10  If 
there  is  no  ruling  by  the  Circuit  Court  of  Appeals  for  the  same 
circuit,  a  Circuit  or  District  Judge  will  ordinarily  follow  a 
decision  of  a  Circuit  Court  of  Appeals  in  another  circuit.11 

Greater  respect  is  paid  to  a  ruling  by  a  Circuit  Justice  than 
to  one  by  a  Circuit  or  District  Judge; 12  and  a  ruling  by  a  Cir- 
cuit Judge  has  more  weight  than  one  by  a  District  Judge.13 
Where  there  were  two  district  judges  in  the  same  district,  each 
with  equal  and  concurrent  authority,  and  one,  during  the 
absence  of  the  other  from  the  district,  had  appointed  a  referee 
in  bankruptcy;  it  was  held  that  the  latter  might,  without  the 
former's  concurrence,  remove  the  referee  from  office.14  It 
has  been  held  that  a  judge  of  another  district,  assigned  gener- 
ally to  hold  court,  may  make  orders  in  cases  tried  by  a  resident 
judge;15  but  that  he  should  not  make  such  orders  when  in 
his  own  district  and  the  district  judge  of  the  other  district 
is  present  therein.16 

§  257.  The  clerk's  office.  All  court  orders  should  be  filed 
in  the  clerk's  office.  Restraining  orders,  signed  by  a  judge, 
must  also  be  forthwith  filed  there.1  Orders  to  show  cause  are 
not  usually  filed  there  until  their  return.  Orders  extending 
time  are  not  usually  filed,  unless  some  motion  is  founded  upon 
the  same.  The  Judicial  Code  provides:  A  clerk  shall  be 
appointed     for    each     district    court     by     the    judge    thereof, 


9  Plattner  Implement  Co.  v.  In- 
ternational Harvester  Co.,  C.  C.  A., 
133  Fed.  370.  378. 

10  Plattner  Implement  Co.  v.  In- 
ternational Harvester  Co.,  C.  C.  A., 
133  Fed.  376,  379. 

n  In  re  Baird.   1.14  Fed.  215. 

12  Preston  v.  Walsh.  10  Fed.  315. 
But  see  U.  S.  v.  Huggett,  40  Fed. 
636.  644. 

*  13  Cf.  F.  Regensberg  &  Sons  v. 
Am.  Exch.  Cigar  Co..  130  Fed.  540. 
Infra,  §  375.  But  see  U.  S.  v.  Hug- 
gett. 40  Fed.  636.  644. 

14  Birch   v.    Steele.   C.   C.    A.,    165 
Fed.  Prac.  Vol.  I. — 52. 


Fed.  577:  Re  Steele,  161  Fed.  886; 
of  which  the  former  overruled  Re 
Steele,  156  Fed.  853,  Ex  parte  Steele, 
162  Fed.  694. 

is  hall  v.  MeKinnon.  C.  C.  A.,  193 
Fed.  572. 

16  (Jay  v.  Hudson  River  El.  Pow- 
er  Co.,   190  Fed.  812. 

17  U.  S.  v.  Alexander.  46  Vvd.  728; 
Norton  v.  Shelby  Co..  118  U.  S.  425r 
30  L.  ed.  178.  But  see  Manning  v. 
Weeks.  139  U.  S.  504.  35  L.  ed.  264; 
Ball  v.  U.  S..  140  f.  S.  118,  35  L. 
ed.  377. 

§  257-     lEq.  Rule  73. 


818 


MOTIONS  AND  PETITIONS. 


[.§  257 


except    in    cases    otherwise    provided    for    by 
cept     as    otherwise    specially    provided    'by    law 
of    the     district    court     for     each     district 
approval     of     the     district 
number      of    deputy    clerks 
by    such     judge,     who     may 
maintain     offices      at     such 


1  ?'    2 

law. 

the 


"Ex- 
clerk 


may,     with     the 


judge      thereof,      appoint     such 
as    may    be    deemed    necessary 
be     designated     to     reside    and 
places     of     holding     court      as 
♦he  judge  may  determine.     Such  deputies  may  be  removed  at 
the  pleasure  of  the  clerk   appointing  them,  with  the  concur- 
rence of  the  district  judge.     In  case  of  the  death  of  the  clerk, 
his  deputy  or  deputies  shall,  unless  removed,  continue  in  office 
and  perform  the  duties  of  the  clerk,  in  his  name,  until  a  clerk 
is  appointed  and  qualified ;  and  for  the  default  or  misfeasance 
iu  office  of  any  such  deputy,  whether  in  the  lifetime  of  the 
clerk  or  after  his  death,  the  clerk  and  his  estate  and  the  sure- 
ties on   his  official  bond  shall  be  liable;   and  his   executor  or 
administrator  shall  have  such  remedy  for  any  such  default  or 
misfeasances  committed  after  his  death  as  the  clerk  would  be 
entitled  to  if  the  same  had  occurred  in  his  lifetime."  3     ;'The 
district   court   for  each   district   may   appoint   a   crier  for   the 
court;  and  the  marshal  may  appoint  such  number  of  persons, 
not  exceeding  five,  as  the  judge  may  determine,  to  wait  upon 
the  grand  and  other  juries,  and  for  other  necessary  purposes."4 
"The  records  of  a  district  court  shall  be  kept  at  the  place  where 
the  court  is  held.      When   it  is  held  at  more  than  one   place 
in   any   district   and   the  place  of  keeping  the  records   is  not 
specially  provided  by  law,  they  shall  be  kept  at  either  of  the 
places  of  holding  the  court   which  may  be   designated  by  the 
district  judge."5     The  equity  rules  direct:     "The  clerk  shall 
keep  a  book  known  as  'Equity  Docket,'  in  which  he  shall  enter 
each  suit,  with  a  file  number  corresponding  to  the  folio  in  the 
book.     All  papers  and  orders  filed  with  the  clerk  in  the  suit, 
all  process  issued  and  returns  made  thereon,  and  all  appear- 
ances shall  be  noted  briefly  and  chronologically   in  this  book 
on  the  folio  assigned  to  the  suit  and  shall  be  marked  with  its 
file  number.     The  clerk  shall  also  keep  a  book  entitled  'Order 
Book,'  in  which  shall  be  entered  at  length,  in  the  order  of  their 
making,  all  orders  made  or  passed  by  him  as  of  course  and 

2Jud.    Code,    §    33,    30    St.    at   L.  4  Ibid.  §   5. 

1087.  5  Ibid.  S  6. 

3  Ibid.   §  4. 


§  257]  clerk's  office.  819 

also  all  orders  marie  or  passed  by  the  judge  in  chambers.  He 
shall  also  keep  an  'Equity  Journal,'  in  which  shall  be  entered 
all  orders,  decrees  and  proceedings  of  the  court  in  equity  causes 
in  term  time.  Separate  and  suitable  indices  of  the  Equity 
Docket,  Order  Book  and  Equity  Journal  shall  be  kept  by  the 
clerk  under  the  direction  of  the  court.''' 6  "Neither  the  noting  of 
an  order  in  the  Equity  Docket  nor  its  entry  in  the  Order  Book 
shall  of  itself  be  deemed  notice  to  the  parties  or  their  solicitors 
and  when  an  order  is  made  without  prior  notice  to,  and  in  the 
absence  of,  a  party,  the  clerk,  unless  otherwise  directed  by  the 
court  or  judge,  shall  forthwith  send  a  copy  thereof,  by  mail,  to 
such  party  or  his  solicitor  and  a  note  of  such  mailing  shall 
be  made  in  the  Equity  Docket,  which  shall  be  taken  as  sufficient 
proof  of  due  notice  of  the  order."7  "All  motions  and  applica- 
tions in  the  clerk's  office  for  the  issuing  of  mesne  process  or  final 
process  to  enforce  and  execute  decrees ;  for  taking  bills  pro 
confesso;  and  for  other  proceedings  in  the  clerk's  office  which 
do  not  require  any  allowance  or  order  of  the  court  or  of  a 
judge,  shall  be  deemed  motions  and  applications  gran  table  of 
course  by  the  clerk;  but  the  same  may  be  suspended,  or  altered, 
or  rescinded  by  the  judge  upon  special  cause  shown.''8 

The  Revised  Statutes  provide:  "All  moneys  paid  into  any 
court  of  the  United  States  or  received  by  the  officers  thereof 
in  any  case  pending  or  adjudicated  in  such  court  shall  be  forth- 
with deposited  with  the  Treasurer  or  Assistant  Treasurer  or 
a  designated  depository  of  the  United  States  in  the  name  and 
to  the  credit  of  such  court,  provided  that  nothing  herein  shall 
be  construed  to  prevent  the  delivery  of  any  such  money  upon 
security  according  to  agreement  of  parties  under  the  direction 
of  the  court."9  "No  money  deposited  as  aforesaid  shall  be 
withdrawn  except  by  order  of  the  judge  or  judges  of  said  courts, 
respectively,  in  term  time  or  in  vacation  to  be  signed  by  such 
judge  or  judges  and  to  be  entered  and  certified  of  record  by  the 
clerk,  and  every  such  order  shall  state  the  cause  in  or  on 
account  of  which  it  is  drawn,  and  it  shall  be  the  duty  of  the 
judge  or  judges  of  said  courts,  respectively,  to  cause  any  moneys 
deposited  as  aforesaid  which  have  remained  in  the  registry  of 
the  court  unclaimed  for  ten  years  or  longer  to  be  deposited  in 

6Eq.  Rule  3.  »U.    S.    R.   S.,    §    095,   Comp.   St. 

?Eq.  Rule  4.  1901.  d.  7JJ 

8Eq.   Rule   5. 


820 


MOTIONS  AND  PETITIONS. 


[§   257 


a  designated  depository  of  the  United  States  to  the  credit  of 
the  United  States." 10  The  clerk  is  entitled  to  demand  the 
payment  of  his  fees  in  advance;11  but  when  tendered  a  fee 
for  service  demanded  of  him.  he  cannot  refuse  to  perform  the 
same  until  fees  due  him  for  other  services  have  been  paid.12 
It  is  customary  in  the  Second  Circuit  to  recpiire  a  deposit,  as 
security  for  costs,  to  be  paid  by  each  party  before  any  paper 
is  filed  by  him.13 

All  books  in  the  offices  of  the  clerks  of  the  Dis- 
trict Courts  containing  the  docket  or  minutes  of  the  judgments, 
or  decrees  thereof,  must  during  office  hours  be  open  to  the  in- 
spection of  any  person  desiring  to  examine  the  same,  without 
any  fees  or  charges  therefor.14  A  title  insurance  company 
has  the  right  to  make  such  inspection,  provided  it  does  not  in- 
terfere with  the  rights  of  other  searchers.15  The  sureties  upon 
a  clerk's  bond  are  liable,  by  a  suit  in  the  name  of  the  United 
States,  for  the  use  of  a  private  suitor,  who  has  been  damaged 
by  his  misconduct  in  refusing  to  file  papers  in  a  case.16  Such 
sureties  are  similarly  liable  to  the  owner  of  a  fund  deposited 
with  the  clerk,  which  the  latter  has  misappropriated.17  But 
where  the  clerk  had  refused  to  enter  judgment  by  default  in 
a  case  where  garnishee  process  had  been  issued,  it  was  held 
that  his  sureties  were  not  liable  for  damages  in  the  absence 
of  proof  that  there  were  funds  of  the  defendant  in  the  hands 
of  the  garnishee  subject  to  garnishment.18  The  complaint  is 
filed  when  it  is  lodged  in  the  hands  of  the  clerk  and  his  fees 
are  paid,  although  he  fails  to  put  the  file  marks  upon  the  same. 


19 


10  U.  S.  R.  S.,  §  996,  as  amended 
by  Act  of  February  19.  1897.  ch.  265, 
§  3,  29  St.  at  L.  578,  Comp.  St.  1901, 
p.  711.  See  Re  Moneys  in  Registry 
of  District  Court,  179  Fed.  470;  in- 
fra, chapter  on  "Admiralty". 

11  Aiken  v.  Smith,  C.  C.  A.,  57 
Fed.  423,  425:  lloysradt  v.  Dela- 
ware, L.  &  W.  R.  R..   182  Fed.  880. 

12  Jennings  v.  Johnson,  C.  C.  A., 
148  Fed.  337. 

13  Tn  equity,  on  filing  bill  of  com- 
plaint $25,  on  filing  appearance  by 
defendant  $15;  at  law,  on  filing 
summons  $15,  on   filing  appearance 


by    defendant    $10;    appraisers'    ap- 
peals,  on   tiling  petition  $5. 

14  U.  S.  R.  S.,  §  828 ;  Re  McLean, 
9  Cent.  L.  J.  425;  s.  c,  2  Flip.  512. 

15  Bell  v.  Commonwealth  Title  Ins. 
Co..  189  U.  S.  131,  47  L.  ed.  741. 

16  U.  S.,  to  Use  of  Kinney  v.  Bell, 
C.  C.  A.,  135  Fed.  336. 

17  Howard  v.  U.  S.,  184  U.  S.  676, 
46  L.  ed.  754. 

18  U.  S.  v.  U.  S.  Fidelity  &  Guar- 
anty Co..  C.  C.  A.,  186  Fed.  477. 

19  Emmons    v.    Vubelite    Plaster 
Co.,  193  Fed.  181. 


CHAPTER  XVII. 

INTERVENTIONS. 

§  258.  Petitions  of  intervention.  A  petition  of  interven- 
tion is  filed  in  a  pending  cause  by  a  person  who  is  not  a  party 
to  it;  and  prays  permission  to  intervene  and  become  a  party, 
either  plaintiff  or  defendant.  A  person  not  named  as  a  party  to 
the  pleadings  cannot  ordinarily  intervene  without  permission  of 
the  court.1  Xew  parties  can  always  intervene  by  consent  of  the 
original  parties.2  By  the  Equity  Rules  of  1912,  ''Anyone  claim- 
ing an  interest  in  the  litigation  may  at  any  time  be  permitted  to 
assert  his  riffht  by  intervention,  but  the  intervention  shall  be  in 
subordination  to,  and  in  recognition  of,  the  propriety  of  the 
main  proceeding."3  To  what  extent  this  changes  the  pre- 
existing practice  has  not  yet  been  decided.  The  general  rule 
was  that  the  court  had  no  power  to  allow  a  stranger  to  ;i 
cause  "to  be  heard  therein  either  by  petition  or  motion, 
except  in  certain  cases  arising  from  necessity,  as  where  the 
pleadings  contain  scandal  against  a  stranger,  or  where  a 
stranger  purchases  the  subject  of  litigation  pending  the  suit, 
and  the  like."4  Persons  belonging  to  a  class  represented  in 
the  suit  are  regarded  as  quasi-parties ;  and  for  that  reason  they 
are  often  allowed  to  intervene.5     In  a  suit  brought  by  a  mem- 

§  238.     1  Bronson  v.  La  Crosse  &  sonville.  P.  &  M.  R.  Co..  2  Woods, 

M.   R.   Co.,   2   Wall.   283,   17   L.  ed.  G28,  629.     See  also  Searles  v.  Jack- 

725;    Forbes    v.    Memphis   El.    P.    &  sonville.   P.  &   M.  R.  Co..   2   Woods, 

Pac.  Ry.  Co..  2  Woods,  323 ;  Putnam  021,     625;     Shields    v.    Barrow.    17 

v.  Xew  Albany,  4  Bissell,  30.5,  367;  How.   130,   145,   15   L.  ed.   158.   162: 

Gregory  v.  Pike.  07  Fed.  837;  U.  S.  Bronson    v.    Railroad    Co..    2    Black. 

Gypsum  Co.  v.  Hoxie.  172  Fed.  504.  524.  17  L.  ed.  347:  Coleman  v.  Mar- 

2  Galveston  R.  Co.  v.  Cowdrey,  11  tin.  6  Blatchf.  119;  Drake  v.  Good- 
Wall.  459,  464.  20  L.  ed.  190;  ridge.  6  Blatchf.  151:  Pago  v. 
F*reneh  v.  Gapen,  105  U.  S.  509,  525,  Holmes  B.  A.  Tel.  Co..  18  Blatchf. 
26  L.  ed.  951.  956.  118. 

3Eq.   Rule   37.  5  Fidelity   Tr.   &   S.   D.   V.   Co.  v. 

4  Bradley.  J.,  in  Anderson  v.  Jack-  Mobile  S.  Ry.  Co.,  53   Fed.  850. 

821 


822 


INTERVENTIONS. 


[§  258 


ber  of  a  class  on  behalf  of  himself  and  others  similarly  in- 
terested, another  member  of  the  class  who  desires  the  success 
of  the  complaint6  can  always  intervene.7  even  after  a  decree 
for  a  sale,  provided  there  has  been  no  distribution  of  the  assets,8 
upon  payment  of  his  share  of  the  costs,  expenses,  and  reason- 
able counsel  fees  which  have  been  previously  paid  or  incurred.9 
Ordinarily  an  intervenor  in  a  suit  brought  on  behalf  of  a 
class  will  be  joined  as  plaintiff.  If  he  is  a  citizen  of  the  same 
state  as  one  of  the  defendants,  that  will  not  in  most,  if  in  any, 
cases  deprive  the  court  of  jurisdiction.10  If  there  should  be 
any  danger  that  it  would,  he  may  be  joined  as  a  defendant.11 
If  he  intends  to  act  in  hostility  to  the  original  complainant, 
the  court  may.  in  its  discretion,  add  him  to  the  defendants.12 
After  an  agreement  for  a  settlement  of  the  entire  litigation  had 
been  made  between  the  original  complainant  who  sued  on  be- 
half of  himself  and  the  rest  of  a  class,  and  one  of  the  defendants, 
a  motion  to  intervene  by  a  member  of  the  class,  for  whose 
benefit  the  suit  was  brought,  was  denied ;  although  no  motion 
to  dismiss  the  bill,  nor  for  a  discontinuance,  had  been  made  or 
noticed.13 


6  Forbes  v.  Memphis,  El.  P.  &  P. 
R.  Co..  2  Woods,  323.  The  right 
was  denied  where  the  petitioner 
acquired  his  claim  pending  the 
suit.  Terry  v.  Bank  of  Cape 
Fear,  20  Fed.  777.  Cf.  Davis  v. 
Sullivan.  33  X.  J.  Fq.  569. 

7  Ogilvie  v.  Knox  Ins.  Co.,  2 
Black,  539,  17  L.  ed.  349:  s.  c,  22 
How,  380.  16  L.  ed.  349:  Myers  v. 
Fenn.  5  Wall.  205,  IS  L.  ed.  G04 ; 
Ex  parte  Jordan.  94  U.  S.  248,  24 
I.,  ed.  123;  First  Nat.  Ins.  Co.  v. 
Salisbury,  130  .Mass.  303:  Hallett  v. 
Hallett.  2  Paige  (X.  Y.),  432; 
Leigh  v.  Thomas,  2  Yes.  Sen.  312; 
Story's  Eq>  PI.  §  99.  See  Tift  v. 
Southern  By.  Co..  159  Fed.  555.  It 
lias  been  said  that  where  the  bill  is 
not  expressly  tiled  in  behalf  of  all 
the  stockholders,  but  they  are  all  in- 
terested in  the  relief,  other  stock- 
holders   have    no   absolute    right    of 


intervention:  but  the  court  may.  in 
its  discretion,  permit  them  to  inter- 
vene. .Jackson  Co.  v.  Gardiner  Inv. 
Co.,  200  Fed.  113.  117. 

8  George  v.  St.  Louis  C.  &  W.  Ry. 
Co..    44    Fed.    117. 

9  Central  B.  Co.  v.  Pettus.  113 
U.  S.  116,  28  L.  ed.  915:  Trustees  v. 
Greenough,  105  U.  S.  527,  26  L.  ed. 
1157. 

10  Stewart  v.  Dunham.  115  U.  S. 
61.  29  L.  ed.  329.  But  see  Mangels 
v.  Donau  Br.  Co..  53  Fed.  513. 

11  Brown  v.  Pac.  M.  S.  S.  Co..  5 
Blatchf.  525,  535. 

12  Galveston  R.  Co.  v.  Cowdrey, 
11  Wall.  459.  478:  Forbes  v.  Mem- 
phis, El.  P.  &  P.  R.  Co.,  2  Woods, 
323. 

13  Snyder  v.  DeForest  Wireless 
Telegraph  Co.,  U.  S.  C.  C.  E.  D. 
Mo.  1907.  But  see  Snyder  v.  De- 
Forest    Wireless   Telegraph   Co.    (D. 


§  253] 


PETITIONS    OF    INTERVENTION. 


823 


In  suits  brought  by  or  against  a  trustee,  or  otherwise  affect- 
ing trust  property,  the  beneficiaries  of  the  trust,  such  as  hold- 
ers of  bonds  secured  by  a  railroad  mortgage,  may  be  allowed 
to  intervene  for  the  purpose  of  protecting  their  interests;14 
but  ordinarily  the  right  to  intervene  has  been  denied  them  in 
the  absence  of  fraud,  neglect,  inability,  collusion  or  bad  faith 
by  the  trustee,15  even  when  the  application  was  made  for  the 
purpose  of  taking  an  appeal,  after  the  trustee  had  refused  to 
appeal.16  The  better  rule  is  that  bondholders  should  always  be 
allowed  to  intervene  when  their  trustee  refuses  to  make  an 
active  contest  against  the  validity  of  a  prior  lien  or  of  other 
bonds  secured  by  the  same  mortgage.  The  facts  showing  mis- 
conduct or  collusion  by  the  trustee  must  be  specifically  pleaded. 
A  general  allegation  of  fraud,  collusion,  and  co-operation  with 
one  of  two  parties  of  bondholders,  is  insufficient.17 

Where  a  trustee  represents  bondholders  under  different  mort- 
gages with  conflicting  interests;  or  where,  if  a  corporation,  one 
of  its  officers  or  directors  or  controlling  stockholders  or  counsel 
is  a  member  of  a  reorganization  committee  which  intends  to 
buy  the  mortgaged  property  or  is  interested  in  a  huge  claim 
against  it.  the  trustee  is  under  such  disability  to  exercise  un- 
biased judgment  that  an  intervention  should  always  be  allow- 
ed.18    It  has  been   held:   that   the  fact  that   certain   of  direc- 


M.),  154  Fed.  142,  145.     See  §  361, 
infra. 

14  Williams  v.  Morgan,  111  U.  S. 
684,  28  L.  ed.  559;  Drew  v.  Harmon, 
5  Price.  .319;  Saviors  v.  Saviors.  3 
Heisk.  (Tenn.)  525;  Birdsong  v. 
Birdsong.  2  Head  (Tenn.).  289; 
Carter  v.  New  Orleans,  19  Fed.  659; 
Farmers'  L.  &  Tr.  Co.  v.  Mo.  I.  & 
X.  Ry.  Co..  21  Fed.  264;  Farmers' 
L.  &  Tr.  Co.  v.  Xo.  Pac.  K.  Co.,  66 
Fed.  169:  Central  Tr.  Co.  v.  Wash- 
ington County.   124  Fed.  813. 

15  Richards  v.  Chesapeake  &  0.  R. 
Co*.,  1  Hughes.  28.  36;  Skiddy  v. 
Atlantic,  M.  &  0.  R.  Co.,  3  Hughes, 
320,  350-352.  per  Bond,  J.,  Hughes, 
J.,  dissenting;  Farmers'  L.  &  Tr.  Co. 
v.  Kansas  City.  W.  &  X.  W.  R.  Co., 


53  Fed.  182;  Clyde  v.  Richmond  & 
D.  R.  Co..  oo  Fed.  445;  Bowling 
Green  Tr.  Co.  v.  Va.  Passenger  & 
Power  Co.,  132  Fed.  921.  See  supra, 
§171.  Trust  Co.  of  America  v.  Nor- 
folk &  S.  Ry.  Co.,  174  Fed.  269.  See 
Eq.  Rule  37. 

16  Fink  v.  Bay  Shore  Terminal 
Co.,  C.  C.  A.,  144  Fed.  837. 

17  Bowling  Creen  Tr.  Co.  v.  Vir- 
ginia Passenger  &  Power  Co..  161 
Fed.  753,  756;  Continental  &  C.  Tr. 
&  S.  Bank  v.  Allis-Chalniers  Co..  BOO 
Fed.  600.  See  Howard  v.  Shinn.  C. 
<C.  A.,  L90  Ped.  940. 

18  Farmer's  L.  &  Tr.  Co.  v.  Nor. 
Pac.  R.  Co.,  66  Fed.  169:  Farmers' 
L.  &  Tr.  Co.  v.  Cape  Fear  &  Y.  V. 
Ry.  Co.,  71   Fed.  38;  Grand  Tr.  Ry. 


824 


INTERVENTIONS. 


[§  258 


tors  of  the  trustee  are  also  holders  of  bonds  and  stock  of  the 
defendant  is  not,  in  itself,  alone  sufficient  to  allow  the  indi- 
vidual holders  of  a  small  minority  of  the  bonds  of  intervene.1* 
A  provision  in  the  mortgage,  that  no  bondholder  can  bring  a 
foreclosure  suit  until  after  a  refusal  by  the  trustee,  does  not 
preclude  the  intervention  of  a  bondholder.20 

When  there  is  a  substantial  dispute  between  the  bondholders 
as  to  the  policy  to  be  pursued,  it  is  also  proper  to  allow  the 
intervention  of  committees  representing  them.21  Except  in 
extraordinary  cases,  it  has  not  been  the  practice  in  the  Second 
Circuit  to  allow  individual  creditors  to  intervene  before  a  time 
has  been  appointed  for  the  proof  of  their  claim.22  In  general,, 
injustice  is  more  apt  to  result  from  the  denial,  than  from  the 
grant,  of  a  prayer  for  intervention  in  a  railroad  foreclosure 
suit. 

Analogous  rules  regulate  the  intervention  by  stockholders,, 
in  suits  brought  by  or  against  their  corporation.23  In  suits 
brought  by  or  against  a  corporation,  stockholders  may  be 
allowed  to  intervene  if  there  is  anv  danger  of  their  bein» 
injured  by  fraud,  neglect  or  collusion  on  the  part  of  the  offi- 
cers ;  24  and  in  some  such  cases  stockholders  have  been  allowed 


Co.  v.  Central  Vt.  Ry.  Co.,  88  Fed. 
622;  Fowler  v.  Jarvis-Conklin  M. 
Tr.  Co.,  64  Fed.  279;  Hamlin  v. 
Toledo,  St.  L.  &  K.  C.  R.  Co..  36 
L.R.A.  826,  78  Fed.  664.  672.  See 
Bowling  Green  Tr.  Co.  v.  Virginia 
Passenger  &  Power  Co.,  164  Fed. 
753,  756;  Howard  v.  Shinn,  C.  C.  A., 
190  Fed.  940.  But  see  Clyde  v. 
Richmond  &  D.  R.  Co.,  55  Fed.  445. 

19  Bowling  Green  Tr.  Co.  v.  Va. 
Passenger  &  Power  Co.,  132  Fed. 
921. 

20  Farmers'  Loan  &  Tr.  Co.  v. 
Nor.  Pac.  R.  Co..  66  Fed.  169. 

21  Farmers'  L.  &  Tr.  Co.  v.  Cape 
Fear  &  Y.  V.  Ry.  Co.,  71  Fed.  38; 
Toler  v.  East  Tenn.,  V.  &  G.  Ry. 
(  u..  67  Fed.  168;  Pennsylvania 
Steel  Co.  v.  X.  Y.  City  Ry.  Co..  181 
Fed.  285.  Where  the  trustee  was 
not  proved  to  be  guilty  of  co-opera- 


tion with  those  wishing  to  reorgan- 
ize the  corporation,  except  that 
against  the  protest  of  the  minority 
he  had  brought  a  foreclosure  suit  at 
the  majority's  request  and  that  he 
had  failed  to  answer  within  two 
days  a  series  of  questions  by  a 
bondholder:  leave  to  intervene  was 
denied.  Continental  &  C.  Tr.  &  S. 
Bank  v.  Allis-Chalmers  Co.,  200 
Fed.  600. 

22  Sands  v.  E.  S.  Greeley  &  Co.,. 
SO  Fed.  195;  Pa.  Steel  Co.  v.  N.  Y. 
City  Ry.  Co..  160  Fed.  222. 

23  Central  Tr.  Co.  v.  McGeorge, 
151  U.  S.  129,  38  L.  ed.  9S;  Pa. 
Steel  Co.  v.  N.  Y.  City  Ry.  Co., 
160  Fed.  222. 

24  Bayliss  v.  Lafayette.  Mi  &  B. 
Ry.  Co.,  8  Biss.  193.  See  U.  S.  v. 
Forty-six  Packages  and  Bags  of 
Sugar.  183  Fed.  642. 


§  258] 


PETITIONS    OF    INTEKVENTION. 


825 


to  file  an  answer  and  defend  the  suit  in  the  name  of  the  corpora- 
tion.85 The  court  has  also  allowed  cross-bills  to  be  filed  for 
the  same  purpose.26  In  the  absence  of  fraud,  neglect,  or 
collusion  bv  the  officers  of  the  corporation,  stockholders  will  not 
ordinarily  be  allowed  to  intervene  before  a  decree;  unless  a 
receiver  has  ben  appointed,  when  each  separate  group  of  stock- 
holders with  conflicting  interests  or  taking  opposite  positions 
may  be  allowed  an  intervention.28  The  failure  of  the  board  of 
directors  to  defend  a  foreclosure  action,  when  a  colorable  de- 
fense exists,  is  a  sufficient  ground  for  allowing  the  interven- 
tion.29 In  the  Second  Circuit,  the  usual  practice  after  receiver- 
ships is  to  permit  the  intervention  of  committees  of  stockholders 
representing  conflicting  interests;  but  ordinarily,  not  to  allow 
individual  stockholders  or  additional  committees  to  intervene.30 


25  Bronson  v.  La  Crosse  &  M.  R. 
Co.,  2  Wall.  2S3,  17  L.  ed.  725; 
Guarantee  Tr.  &  S.  Co.  v.  Duluth  & 
W.  R.  Co..  70  Fed.  803;  Ex  parte 
Jordan.  94  U.  S.  24S,  249.  24  L.  ed. 
123;  Bayliss  v.  Lafayette,  M.  &  B. 
Ry.  Co.,  8  Biss.  193.  Contra,  Ex 
parte  Printup  87  Ala.  148;  Stretch 
v.  Stretch,  2  Tenn.  Ch.  140.  In  Cen- 
tral Tr.  Co.  v.  Marietta  &  N.  G.  R. 
Co.,  48  Fed.  14.  the  facts  were  held 
not  to  justify  the  intervention;  but 
this  case  might  very  properly  not  be 
followed.  See  also  Blackman  v. 
Central  R.  &  B.  Co.,  58  Ga.  189; 
Central  Tr.  Co.  v.  Washington 
County,  124  Fed.  813. 

26Bartlett  v.  Gates,  118  Fed.  66. 

27  Forbes  v.  Memphis*  EL  P.  & 
P.  R.  Co.,  2  Woods,  323,  333.  For 
a  peculiar  case,  see  Collin  v.  Chat- 
tanooga W.  &  P.  Co.,  44  Fed.  535. 
For  cases  where  it  was  held,  that 
there  was  no  collusion,  see  Land 
Title  &  Trust  Co.  v.  Asphalt  Co., 
C.  C.  A.,  127  Fed.  1  ;  Re  Metro- 
politan Railway  Receivership,  208 
U.  S.  90.  52  L.  ed.  403. 

28  Fowler  v.  Jarvis-Conklin  M.  Tr. 
Co.,  04  Fed.  279 ;  Hamlin  v.  Toledo, 


St.  L.  &  K.  C.  R.  Co.,  36  L.R.A.  82G, 
78-  Fed.  004,  072.  See  Toledo,  St.  L. 
&  K.  C.  R.  Co.  v.  Continental  Tr. 
Co..  95  Fed.  497,  535. 

29  Farmers'  Loan  &  Tr.  Co.  v.  To- 
ledo, A.  A.  &  N.  M.  Ry.  Co.,  67  Fed. 
49,  53.  It  has  been  said:  "It  will 
not  avail  a  stockholder,  seeking  to 
avoid  a  default  suffered  by  a  cor- 
poration, to  allege  merely  that  the 
corporation  had  cash  and  cash  as- 
sets suilicient  to  pay  the  claim.  The 
managing  otlicers  may,  consistently 
with  their  duty,  resolve  not  to  pay 
it,  and  it  is  incumbent  upon  the 
stockholders  to  show  that  the  re- 
fusal to  so  apply  its  assets  cannot 
be  reconciled  wifli  prudent  and  fair 
management;  and  this  must  be 
shown  by  facts  of  themselves  dis- 
closing the  fraud  or  breach  of  duty, 
and  not  by  allegations  which  em- 
body nothing  but  the  ultimate  con- 
clusion necessary  to  be  established." 
Continental  &  C.  Tr.  &  S.  Bank  v. 
Allis-Chalmers  Co.,  200  Fed.  000. 
013. 

so  Pennsylvania  steel  Co.  v.  X.  Y. 
City  Ry.  Co.,  181  Fed.  285.  This 
practice   has   been   followed    in    one 


826  INTERVENTIONS.  [§     258 

Where  bad  faith  or  oppression  on  the  part  of  the  intervening 
committee  is  shown,  intervention  by  an  individual  stockholder 
thereby  injured  should  be  allowed.31  To  entitle  a  stockholder 
to  intervene  before  a  judgment  in  a  suit  against  the  corporation, 
he  must  set  forth  facts  sufficient  to  have  enabled  him  to  main- 
tain an  independent  suit  to  assert  or  protect  the  corporate 
right.32  A  stockholder  who  prays  leave  to  intervene  and  defend 
on  behalf  of  his  corporation  should  show  a  previous  request  to 
the  board  of  directors  and  their  refusal  to  defend,  or  else 
circumstances  which  would  make  such  a  request  a  vain  form;33 
but  if  a  petition  defective  in  this  respect  shows  a  good  defense, 
the  proceedings  should  be  stayed  until  an  opportunity  has  been 
afforded  for  the  petitioner  to  apply  to  the  board  of  directors 
and  then  file  a  new  petition.34  It  has  been  said :  that  stock- 
holders cannot  intervene  for  the  purpose  of  questioning  the 
propriety  of  the  selection  of  the  person  appointed  receiver;05 
nor  to  attack  the  conduct  of  "a  receiver  because  of  fraud; 36  and 
that  the  proper  remedy,  in  the  latter  case,  is  an  original  bill.37 

A  stockholder  or  creditor  of  a  corporation  may  be  allowed 
to  intervene  in  a  suit  against  the  receiver  of  the  company;  but 
only  under  very  extraordinary  circumstances.38 

In  general,  a  creditor  of  a  defendant  who  has  no  judgment 
cannot  intervene  to  defend  the  suit;39  but  where  the  parties 

case  at  least  in  the  Seventh  Circuit.  ledo,    A.    A.    &    X.    M.    Ry.    Co.,    67 

Thomasson    v.    Guaranty    Trust    Co.  Fed.  40.  53;   Central  Tr.  Co.  v.  Mc- 

of  X.  Y.,  C.  C.  A..   Ion   Fed.  126.  George.  151  U.  S.  129,  38  L.  ed.  08; 

31  Thomasson  v.  Guaranty  Trust  Dickerman  v.  Xorthern  Trust  Co., 
Co.  of  X.  Y..  C.  C.  A.,  150  Fed.  126.  176   U.   S.   181,   185,   44   L.   ed.   423, 

32  Continental  &  C.  Tr.  &  S.  Bank  425. 

v.  Allis-Chalmers  Co..  200  Fed.  600.  35  Land  Title  &   Trust  Co.  v.  As- 

See  supra,  §  145.  phalt  Co..  114  Fed.  4S4. 

33  Farmers'  L.  &  Tr.  Co.  v.  To-  SB  Forbes  ^  Memphis  El.  P.  &  PacL 
ledo.  A.  A.  &  X.  M.  Ry.  Co..  67  Ry.  Co..  2  Woods,  323:  Fed.  Cas. 
Fed.    40:    General    El.    Co.    v.    West  No.  4,926. 

Aslieville    Imp.    Co..    73    Fed.    386:  37  Forbes    v.    Memphis    El.    P.    & 

See  §  145.  supra.    The  facts  must  lie  Pac.  Ry.  Co..  2  Woods  323.  Fed.  Cas. 

alleged  with  particularity.     General  Xo.  4.026. 

charges   of   fraud   and   collusion   are  38  Hosmer  v.  Darrah.  85  App.  D. 

insufficient.     Continental  &  C.  Tr.  &  485. 

S.    Hank   v.  Allis-Chalmers  Co.,  200  39  Lombard   Inv.   Co.   v.   Seaboard 

Fed.  600.  Mfg.    Co.,    74    Fed.    325:    Farmers' 

34  Farmers'  L.  &  T.  R.  Co.  v.  To-  L.  &  Tr.  Co.  v.  Chicago  &  X.  P.  Ry. 


§  258] 


PETITIONS    OF   INTERVENTION. 


827 


act  in  collusion  to  cut  off  the  rights  of  insecure*!  creditors,  this 
may  be  permitted.40 

In  a  suit  to  cancel  a  deed,  it  was  held  to  have  been  erroneous 
to  refuse  one  of  the  representatives  of  the  grantors  the  right  to 
intervene  as  a  party  plaintiff.41  An  administrator,  with  the 
will  annexed,  has  been  allowed  to  intervene,  to  continue  a  suit 
brought  by  an  executor  who  has  been  removed.42  A  trustee  or 
an  ancillary  trustee  may  intervene  in  the  bankrupt's  place  in 
any  suit  in  which  the  bankrupt  was  a  party.43  A  person  claim- 
ing a  right  to  property  held  by  a  marshal  44  or  receiver,45  or 
claiming  a  right  to  share  in  a  fund  in  court,46  is  usually  allowed 
to  intervene  pro  vtib&resse  sua,  provided  that  he  does  not  resist 
the  prayer  of  the  complainant;47  but  after  a  sale  by  a  marshal, 
permission  to  intervene  to  set  aside  the  same  was  denied  to  an 
adverse  claimant  of  the  property.48  In  a  proceeding  under  the 
Pure  Food  and  Drugs'  Act,  the  owner  of  the  property  may  be 
allowed  to  intervene.49  After  permission  to  intervene  and 
answer  had  been  granted,  and  subsequently  another  order  was 
made  permitting  the  answer  to  be  withdrawn  and  exceptions 
and  a  demurrer  to  the  libel  and  information  to  be  tiled  ;  it  was 
held  that  it  was  too  late  for  the  district  attorney  to  object  that 
there  was  no  proof  that. the  intervenor  was  a  party  in  interest  or 


Co.,  68  Fed.  412.  See  George  v. 
St.  Louis,  C.  &  M.  Ry.  Co.,  44  Fed. 
117. 

40  Louisville  Tr.  Co.  v.  Louis- 
ville, New  Albany  &  C.  Ry.  Co., 
174  U.  S.  074.  43  L.  ed.  1130;  infra, 
§§  261,  394. 

41  Billings  v.  Aspen  M.  &  S.  Co. 
C.  C.  A.,  51  Fed.  338. 

42  Monmouth  Inv.  Co.  v.  Means, 
C.  C.  A.,  151  Fed.  159. 

43Tlie  Alert.    199  Fed.  542. 

44Gumbel  v.  Pitkin,  124  U.  S. 
131  ;  supra,  §  52. 

45  Lord  Pelham  v.  Duchess  of 
Newcastle,  3  Swansi.  290;  Minot 
v.  Mastin,  C.  C.  A..  95  Fed.  734: 
Mercantile  Tr.  Co.  v.  Atlantic  &  P. 
R.  Co.,  63  Fed.  513.  517;  Foley  v. 
Grand  Hotel  Co..  C.  C,  A.,  121   Fed. 


500;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1270;   irifra,  §  304. 

46  Central  Tr.  Co.  v.  Marietta  & 
N.  G.  R.  Co.,  63  Fed.  492;  Rice  v. 
Durham  Water  Co.,  ill  Fed.  433. 
Rut  see  as  to  non-residents.  Sand* 
v.  E.  S.  Greeley  &  Co..  C,  C.  A..  SO 
Fed.  195;  Tift  v.  Southern  Ry.  Qo., 
159   Fed.  555. 

« Continental  Tr.  Co.  v.  Toledo. 
St.  L.  &  K.  C.  R.  Co.,  82  Fed.  642: 
Krippendorf  v.  Hyde,  110  U.  S.  276. 
20  L.  ed.  145;  Esterhrook  Co.  v. 
Aliern.  31  X.  .1.  Eq.  3.  See  Cincin- 
nati Equipment  Co.  v.  Degnan,  C. 
(  .  A..   184   Fed.  S:i4. 

48  ]v\    parte    Mcn-ing.   55    Fed.    17. 

49  I*.  S.  v.  Forty-six  Packages  and 
Rags  of  Sugar,  183  Fed.  642. 


828 


INTERVENTIONS. 


[§     258 


that  it  was  the  bona  fide  owner  of  the  article  seized.50  It  has 
heen  held  that  a  party  interested  in  a  fund,  to  recover  which 
an  action  at  law  is  pending',  cannot  be  allowed  to  intervene 
therein,  since  the  court  has  no  jurisdiction  to  distribute  the 
proceeds  of  the  suit.51  Upon  a  motion  to  set  off  one  judgment 
against  another,  a  person  claiming  an  assignment  of  the  second 
judgment  has  a  right  to  intervene  by  a  motion  which,  although 
made  in  an  action  at  law,  is  of  an  equitable  nature.52  A  tele- 
graph company,  claiming  the  right  to  use  the  railroad's  right 
of  wav.  was  allowed  to  intervene  in  a  foreclosure  suit.53  A 
party  claiming  the  equitable  title  to  land  held  by  a  railway 
company  of  which  the  receiver  had  not  taken  possession,  and 
which  was  exempted  from  the  receivership  by  order,  and  not 
otherwise  mentioned  in  the  proceedings,  was  denied  leave  to 
intervene  in  a  suit  to  foreclose  a  mortgage  on  the  property  of 
the  railroad.54 

Ordinarily,  a  stranger  whose  rights  cannot  be  affected  by 
a  decree  to  which  he  is  not  a  party,  will  not  be  allowed  to  inter- 
vene.55 The  Attorney-General  of  the  United  States  may  in- 
tervene for  the  protection  of  the  Federal  government  in  a  suit 
between  two  States  affecting  their  boundaries.56  But  not  in  a 
suit  between  two  States  affecting  the  right  to  use  the  waters  of 
a  stream,  which  is  not  navigable.57  A  district  attorney  of  the 
United  States  was  refused  permission  to  intervene  in  a  civil 
suit  brought  by  a  person  charged  with  a  crime  to  obtain  posses- 
sion of  certain  papers  needed  as  evidence  before  a 
grand  jury.58     The  United  States59  or  a  State60  may  usually 


50  U.  S.  v.  Forty-six  Packages  and 
Bags   of   Sugar,    183   Fed.   642,   644. 

51  McKemy  v.  Supreme  Lodge  A. 
0.  U.  W.,  C.  C.  A..  180  Fed.  961. 

52  Cathay  Trust  v.  Brooks..  C.  C. 
A..  193  Fed.  073. 

53  Mercantile  Tr.  Co.  v.  Atlantic 
&  P.  R.  Co..  63  Fed.  513:  Union  Tr. 
Co.  v.  Atchison.  T.  &  S.  F.  R.  Co., 
8  X.   M.   327.  43   Pac.   701. 

54  Cutting  v.  Florida  Ry.  &  Nav. 
Co..  45  Fed.  444. 

55  Morton  Tr.  Co.  v.  Metropolitan 
St.  Ry.  Co.,  168  Fed.  941,  where  the 
pledgee  of  bonds   pledged  by   a   cor- 


porate mortgage  was  not  allowed  to 
intervene  in  the  foreclosure  suit,  to 
litigate  the  question  of  its  liability, 
since  he  had  a  right  to  contest  the 
same  in  an  action  by  the  purchaser. 

56  Florida    v.    Georgia.    17    How. 
478.  15  L.  ed.  181;  supra,  §  3. 

57  Kansas   v.   Colorado.  206   U.  S~ 
46.   51   L.  ed.  056. 

58  Potter  v.  Beal.  C.  C.  A..  50  Fed. 
860. 

59  Stanley  v.   Schwalby.   147   U.  S. 
508.  513,  37  L.  ed.  259,  261. 

60  Tennessee  v.  Quintary.  SO   Fed. 


258] 


PETITIONS    OF    INTERVENTION. 


829 


intervene  in  a  suit  affecting  property  in  which  the  government 
claims  an  interest.  A  State  cannot  intervene  in  a  foreclosure 
suit  affecting  property  upon  which  it  claims  no  lien,  in  order 
to  enjoin  the  proceedings  upon  the  ground  that  the  plaintiff  is 
forhidden  by  a  State  statute  from  acting  as  trustee  for  the  mort- 
gage bondholders.61  But  the  State  was  allowed  to  intervene 
in  a  foreclosure  suit  to  enforce  its  rights  under  a  contract  to 
which  it  was  not  a  party.62  Persons  interested  in  disputing 
the  validity  of  a  patent  have  been  allowed  to  intervene  to  de- 
fend a  suit  brought  against  their  bailee,  to  enjoin  the  use  by  it 
of  cars  belonging  to  them;63  and  to  move  to  set  aside  a  decree 
establishing  the  validity  of  a  patent  entered  by  collusion,  in  a 
suit  to  which  they  were  strangers.64  But  such  persons  were 
not  allowed  to  intervene  in  a  suit  to  restrain  the  infringement 
of  a  patent  when  they  relied  upon  a  distinct  defense  not  raised 
therein.65  Nor  in  any  case  where  they  were  not  employers  of 
the  person  sued,  nor  in  direct  privity  with  him.66  Vendors  of 
the  articles  charged  to  constitute  an  infringement  have  been 
allowed  to  intervene,67  but  not  after  they  had  stopped  the 
manufacture  and  sale  of  the  same.68  The  act  creating  the  Com- 
merce Court  provides  "that  communities,  associations,  corpo- 
rations, firms,  and  individuals  who  are  interested  in  the  con- 
troversy or  question  before  the  Interstate  Commerce  Commis- 


829;    Tindal    v.    Wesley.    167    U.    S. 
204.  42  L.  ed.  137:  supra,  §  105. 

61  Farmers'  L.  &  Tr.  Co.  v.  Chi- 
cago &  N.  P.  R.  Co..  08  Fed.  412. 
417. 

62  Tennessee  v.  Quintard,  80  Fed. 
829. 

63  Standard  Oil  Co.  v.  Southern 
Pac.  R.  Co.,  54  Fed.  521.  But  see 
W.  A.  Gaines  &  Co.  v.  Rock  Spring 
Distilling  Co.,  179  Fed.  544,  a  trade- 
mark case. 

64Uarker  v.  Todd,  15  Fed.  265. 
But  see  Washburn  v.  Moen  Mfg. 
Co.  v.  Colwell  S.  B.  F.  Co..  1  Fed. 
225  ;*  Cochrane  v.  Deener,  95  U.  3. 
355.  24  L.  ed.  514.  In  Thomson- 
Houston  El.  Co.  v.  Western  Fl.  Co.. 
C.  C.  A.,  158  Fed.  813.  a  stranger 
was   not   allowed   to    intervene   upon 


an  appeal  for  the  purpose  of  having 
the  case  remanded  for  further 
proofs,  when  collusion  was  charged, 
but  the  record  did  not  furnish  any 
evidence  thereof  and  the  petitioner 
had  full  opportunity  to  intervene  in 
the  court  below. 

65  Page  v.  Holmes  B.  A.  Tel.  Co., 
18  Blatchf.  118;  s.  c.  2  Fed.  330; 
Cochrane  v.  Deener,  95  U.  S.  355. 
24  L.  ed.  514;  Thomson-Houston  Fl . 
Co.  v.  Sperry  El.  Co..  46  Fed.  75. 

66  Thomson-Houston  El.  Co.  \. 
Sperry  El.  Co..  16  Fed.  75.  Contra. 
Hurd   v.  Sein,    189    Fed.   591. 

67('uiraii  v.  St.  Charles  Car  Co., 
32   Fed.   835. 

68  Ring  R.  &  T.  M.  Co.  v.  St. 
Louis    [ce    Mfg.   Co.,   67    Fed.  535. 


,s:;o 


INTERVENTIONS. 


[§  258 


sion,  or  in  any  suit  which  may  be  brought  by  any  one  under  the 
terms  of  this  Act,  or  the  Acts  of  which  it  is  amendatory  or  which 
are  amendatory  of  it,  relating-  to  action  of  the  Interstate  Com- 
merce Commission,  may  intervene  in  said  suit  or  proceedings  at 
any  time  after  the  institution  thereof."  69  It  has  been  held  that 
this  gives  the  right  of  intervention  to  an  incorporated  grain 
exchange  or  a  board  of  trade,  a  large  number  of  the  members 
oi  which  are  engaged  in  business  that  will  be  directly  affected 
by  an  order  which  it  is  sought  to  enjoin.70  An  act  of  Congress 
gives  creditors  and  materialmen  the  right  to  intervene  in  any 
action  by  the  United  States  on  the  bond  of  a  contractor  for  the 
construction  or  repair  of  a  public  building  or  for  the  prose- 
cution and  completion  of  a  public  work,  and  also  to  hie  his 
claim  and  be  made  a  party  to  any  suit  by  another  creditor  upon 
such  bond.71  It  has  been  held:  that,  in  such  an  action,  the  doc- 
trine of  subrogation  cannot  be  applied,  and  that  persons  other 
than  the  contractor  cannot  enforce  security  given  to  indemnify 
a  surety  upon  the  bond  who  has  become  insolvent.72  That  an 
application  of  credits  once  having  been  made  to  reduce  the 
claim  of  an  intervenor,  there  is  no  authority  to  make  any  other 
application  thereof.73  That  such  intervenors  are  subject  to  the 
ordinary  rules  and  practice  governing  interventions,  and  no 
creditor  can  intervene  after  the  action  has  been  dismissed  for 
want  of  service  or  has  been  fully  tried  and  submitted  for  de- 


cision 


74 


It  has  been  said:  that  the  court  has  no  power  to  bring 
in  new  parties  defendant,  against  the  objection  of  the  complain- 
ant, where  those  who  seek  themselves  to  intervene  make  issues, 
which  would  not  be  disposed  of  so  as  to  become  res  adjudicata 
if  they  were  not  joined.75  It  has  been  held  in  foreclosure  suits 
that  the  validity  of  the  appointment  of  the  plaintiff  as  a  trustee 
hould  not  be  decided  upon  the  application  of  intervening  bond- 


69  Act  of  June  18,  1910,  c.  309, 
§  .I,  36  St.  at  L.  539,  543. 

70  Nashville  Grain  Exch.  v.  U.  S. 
(Commerce  Ct.)    191    Fed.  37. 

71  Act  of  August  13,  1894,  ch.  280, 
28  St.  at  L.  27S.  Comp.  St.  1901, 
p.  '2.">2:i.  as  amended  by  Act  of  Feb- 
ruary 24,  1905,  ch.  778,  33  St.  at  L. 
811,   Comp.   St.   Supp.    1909,   p.  948. 


72  TJ.  S.  v.  United  Surety  Co.,  192 
Fed.  992. 

73  TJ.  S.  v.  Massachusetts  Bonding 
&  Ins.  Co.,  198  Fed.  923,  928. 

74  U.   S.  v.   McGee,   171   Fed.   209. 

75  Central  Tr.  Co.  v.  Washington 
County,  124  Fed.  813,  814,  815.  See 
also  Gregory  v.  Pike,  67  Fed.  837; 
supra,  §  199. 


§  258] 


PETITIONS    OF    INTERVENTION. 


831 


holders,76  and  that  where  there  was  no  dispute  as  to  the  valid- 
ity of  all  of  the  bonds  as  against  the  corporation,  the  bolder 
of  a  part  thereof  should  not  be  allowed  to  intervene  before 
the  sale  for  the  purpose  of  litigating  a  claim  of  priority  over 
other  bondholders;  that  being  said  to  be  a  question,  which  could 
be  litigated  before  the  master  upon  the  application  for  the 
distribution  of  the  proceeds  of  the  sale.77  Laches  may  be  a 
reason  for  denying  a  stockholder's,  bondholder's,  or  creditor's 
or  other's 78  petition  of  intervention  when  equities  on  the 
part  of  the  complainant  or  other  parties  interested  have  arisen 
during  the  delav.79  A  delay  of  about  three  vears  ami  a  half 
in  presenting  a  claim  for  payment  in  a  foreclosure  suit  was  held 
not  to  be  laches,  where  the  intervenor  had  in  the  meantime 
obtained  a  judgment  against  the  defendant.80  Where  general 
creditors  of  a  corporation  had  made  no  objection  to  the  ac- 
quisition of  the  possession  of  property  by  receivers  appointed 
in  a  foreclosure  suit,  until  after  the  property  had  been  sold 
under  a  decree  and  the  sale  confirmed;  it  was  held,  that  they 
were  estopped  by  their  laches  from  maintaining  petitions  of 
intervention  to  compel  the  payment  of  their  demands  from  the 
proceeds  of  the  sale,  upon  the  ground  that  part  of  the  property 
was  not  subject  to  the  lien  of  the  mortgage.81 

When  the  court  acquired  jurisdiction  of  the  original  bill,  the 
fact  that  an  intervenor  has  the  same  citizenship  as  a  party  on 
the  opposite  side  of  the  controversy,82  or  that  his  claim  is  less 


76  Bowling  Green  Tr.  Co.  v.  Va. 
Passenger  &  Power  Co.,  132  Fed. 
921. 

77  Mercantile  Tr.  Co.  v.  U.  S. 
Shipbuilding  Co.,  130  Fed.  725.  See 
Trust  Co.  of  America  v.  Norfolk  & 
S.  Ry.  Co.,   174  Fed.  2G9. 

78  Thomson-Houston  El.  Co.  v. 
Western  El,  Co.,  C,  C.  A.,  158  Fed. 
813;  Leary  v.  U.  S.,  C.  C.  A.,  184 
Fed.  433. 

79  Continental  Tr.  Co.  v.  Toledo. 
St.  L.  &  K.  C.  R.  Co.,  82  Fed.  1)42: 
Boston  S.  D.  &  Tr.  Co.  v.  Am. 
Rapid  Tel.  Co..  67  Fed.  165;  Stat€ 
Trust  Co.  v.  Kansas  City,  P.  &  G. 


R.  Co.,  120  Fed.  398:  U.  S.  Trust 
Co.  v.  Chicago  Terminal  T.  R.  Co., 
C.  C.  A.,  188  Fed.  292:  Trust  Co.  of 
America  v.  Norfolk  &  S.  Ry.  Co., 
174  Fed.  209. 

80  New  York  G.  vV  1.  Co..  v.  Ta- 
coma  R.  &  .M.  Co..  C.  C.  A.,  83  Fed. 
365.     Cf.  supra*  §  258.  note  2::. 

81  State  Tr.  Co.  v.  Kansas  City. 
1>.   &    C    a.    Co..    120    Fed.   398. 

82  Kripendorf  v.  Hyde,  110  l".  S. 
270.  283,  2S4.  2S  I.,  ed,  115.  148; 
Tark  v.  N.  V..  I..  E.  &  W.  11.  Co., 
70  Fed.  oil:  Monmouth  1  nv.  <  'o.  v. 
Means.  C.  C.  A..  151  Fed.  159;  su- 
pra, s   10. 


832 


INTERVENTIONS. 


[§  258 


than  the  jurisdictional  anion  r,83  will  not  affect  his  intervention, 
nor  defeat  the  jurisdiction,  after  he  has  been  admitted  to  the 
suit. 

A    State  statute  authorizing  or  forbidding  interventions  in 
suits  of  equity  will  not  be  followed  by  a  Federal  court.84 


83Stanwood  v.  Wishard,  134  Fed. 
950 ;   supra,  §  G. 

84  Mercantile  Tr.  Co.  v.  Atlantic 
&    P.   11.   Co..   63    Fed.   513,   517. 

In  an  instructive  essay,  Mr.  Ed- 
ward C.  Eliot,  of  St.  Louis,  classi- 
fies cases  of  intervention  as  follows 
(31  Am.  Law  Rev.  377,  381,  382, 
383.  385.  387,  390,  391.  392)  : 

"The  intervention  of  strangers  to 
the  original  cause  which  will  he 
entertained  and  adjudicated  by  the 
Federal  courts  may  have  as  the 
basis  of  their  institution  one  of  the 
following  matters  of  interest: 

"1.  They  may  be  based  upon  a 
right  or  title  to  the  subject-matter 
paramount  in  quality  to  the  claims 
of  the  original  parties  to  the  suit 
and  extending  to  the  whole  matter 
of  rightful  ownership.  Into  this 
class  of  intervention  will  fall  al- 
most all  those  proceedings  which 
are  permitted  by  the  Federal  courts 
as  incidental  to  suits  at  law;  and 
they  are  closely  analogous  to  the 
ordinary  interpleas  permitted  by 
statute  and   in  the  State  courts.     . 

"2.  In  the  second  class  of  inter- 
ventions may  be  placed  those  which 
are  based  upon  some  statutory  or 
contractual  lien  which  the  interven- 
or  has  by  law,  independent  of  the 
peculiar  jurisdiction  of  the  Federal 
eourt,  and  which  he  seeks  to  impose 
upon  the  property  in  the  charge  of 
the  court  and  to  enforce  in  the  Fed- 
eral court  because  of  his  inability 
to  pursue  the  same  right  or  remedy 
in  the  State  courts.     Into  this  class 


of  interventions  fall  the  enforce- 
ment of  statutory  or  mechanics' 
liens,  charges  or  liens  which  may  be 
the  result  of  private  contract  be- 
tween the  parties,  and  also  judg- 
ment liens  of  later  or  earlier  date 
obtained  in  the  State  courts,  and 
which  by  State  statute  are  made  pre- 
cedent in  right  to  the  complainant's 
cause  of  action. 

"3.  The  third  class  of  interven- 
tions consists  of  those  which  are 
based,  not  upon  rights  or  titles  in 
the  subject-matter  existing  in  full 
force  by  law,  irrespective  of  the 
action  of  the  Federal  tribunal,  but 
such  as  rest  upon  equities  which  are 
purely  the  creation  of  the  Federal 
courts  and  which  in  the  judgment 
of  such  courts  justify  the  preference 
of  the  intervenors,  owing  to  such 
equities,  over  the  rights  of  the  par- 
ties to  the  suit.  It  is  believed  that 
the  interventions  which  are  now  re- 
ferred to  are  peculiar  to  railroad 
foreclosures.     ... 

"4.  The  fourth  class  includes 
those  interventions  which  rest  upon 
legal  rights  or  equitable  liens  upon 
the  subject-matter  in  the  hands  of 
the  court,  but  which  are  deferred  in 
law  or  equity  to  the  rights  of  the 
complainant.  They  may  be  superior 
to  the  rights  of  other  parties  to  the 
suit.  Manifestly  these  interven- 
tions, though  they  may  be  adjudi- 
cated, have  no  effect  to  postpone  or 
interfere  with  the  original  purpose 
of  the  suit.  They  apply  simply  to 
any  possible  surplus  which  may  b6 
in   the   hands  of  the  officers   of   the 


§  259] 


PRACTICE  ON   INTERVENTIONS. 


s:\:\ 


§  259.   Practice  upon  interventions.     A  petition  of  inter- 
vention may  be  filed  at  anv  stage  of  the  cause,  even  after  a  final 


•court  after  the  objects  of  the  origin- 
al suit  have  been  effected.  They  are 
then  classified  among  themselves. 
but  are  made  liens  or  charges  only 
upon  the  remnant  of  the  property 
which  may  be  in  the  hands  of  the 
■court. 

"5.  In  the  fifth  class  are  inter- 
ventions based  upon  contractual  ob- 
ligations which  may  be  made  or 
incurred  by  the  receiver  or  other 
officers  of  the  court  in  charge  of 
the   property   during  the   litigation. 

"6.  The  last  class  of  interven- 
tions includes  those  based  upon  the 
torts  of  the  receiver  in  the  manage- 
ment of  property  in  the  control  of 
the    court.      .      .      . 

"Owing  to  the  lack  of  understand- 
ing of  the  real  nature  of  interven- 
ing petitions  and  the  fundamental 
ground  upon  which  the  court  acts, 
attempts  are  often  made  to  extend 
the  jurisdiction  of  the  Federal  court 
upon  petitions  of  this  character  to 
matters  or  for  results  which  the 
court  ought  not  to  consider  or  to 
effect.  In  a  railroad  foreclosure 
suit,  a  deficiency  decree  against  the 
defendant  corporation  for  the 
amount  of  indebtedness  not  satisfied 
out  of  the  proceeds  of  sale  is  proper, 
because  such  is  the  original  cause 
of  action  of  the  complainant.  But 
effort  is  sometimes  made  by  indi- 
vidual bondholders  through  inter- 
ventions, to  enforce  some  statutory 
or  common-law  liability  upon  the 
stockholders  of  the  defendant  cor- 
poration. While  there  may  lie  no 
direct  adjudication  t<>  that  effect  re- 
ported, it  is  evident  that  this  would 
be  an  extension  of  the  jurisdiction 
•of  the  Federal  court  beyond  reason." 
Fed.  Prac.  Vol.  I.— 53. 


But  see  Continental  &  C.  Tr.  &  S. 
Bank  v.  Allis-Chalmers  Co..  200 
Fed.    600,   610.     "There   may   be.    of 

course,    causes    in    which    the    entire 
assets  of  a  corporation  arc  taken  in 
charge  by  the  court,  as  upon  credit- 
or's  bill,   where  the   individual    lia- 
bility   of    the    stockholders    of    the 
corporation  may  be  an  asset  in  the 
hands  of  the  receiver  or  other  officer 
of  the  court.     In  that  event,  at  the 
suggestion  or  motion  of  a   creditor, 
no  doubt  the  object  of  the  principal 
cause  would  justify  the  enforcement 
of  the  liability.     But  it  will  be  seen 
that  this  is  really  the  purpose  and 
object    of    the    principal    suit.      The 
matter    does   not   arise    collaterally. 
And  the  personal  liability  is  one  of 
the  property  interests  seized.     So  in 
other  •  cases,     attempts     have     been 
made    through    interventions   to  try 
titles  or  rights  which  have  been  de- 
rived through  the  receiver  or  by  op- 
eration  of    the    decrees    or   judgment 
of    the    court.      These,    also,    are    not 
properly    subjects    of    interventions, 
although     the     courts     have     indeed 
held  that  a    bill    or   motion   may   be 
entertained  as  ancillary  to  a  decree 
of  judgment,  for  the   interpretation 
of    that    judgment    or    decree    at    the 
instance  of  a  person  who  claims  ti- 
tle under   it.     This   is  another  case 
of  the  extreme  limlt'of  the  principle. 
Interventions     are     also     attempted 
and  sometimes  entertained  to  force 
upon    the    receiver    a    duty    to    make 
some  equitable  contract   in  favor  of 
a   public    interest.      Where    such    an 
intervention    is    to    lie   considered,    it 
ought    to    rest    upon    the    propriety 
of  the  court'-  advising  the   receiver. 
and    the    proceeding    should    l»e    con- 
sidered  as   in   the   nature   of   a    peti- 


834 


INTERVENTIONS. 


250 


decree,  provided,  at  least,  that  it  is  tiled  at  the  same  term.1  An 
intervention  has  been  allowed  after  an  order  taking  the  decree 
as  confessed  by  the  original  defendant.2  and  after  the  decree 
had  been  signed  but  not  entered.3  It  has  been  said :  that  it 
will  only  be  granted  after  final  decree,  in  order  to  preserve  some 
right  which  cannot  otherwise  be  protected,  or  to  avoid  some 
complication  which  is  likely  to  arise.4  Where  the  original  com- 
plaintiff  had  no  interest  in  the  relief  prayed  in  a  petition  of 
intervention,  it  was  held  to  be  demurrable  because  of  his  join- 
der as  a  co-petitioner  with  the  person  interested.5  A  petition 
for  leave  to  intervene  should  describe  the  proceedings  in  the 
cause  in  which  it  is  filed,  so  that  the  court  can  see  the  nature 
and  condition  of  the  suit.6  It  may  also  contain  a  statement  of 
the  petitioner's  view  of  the  case,  and  pray  in  addition  to  inter- 
vention the  final  relief  which  he  desires.  While  a  petition  of 
intervention  need  not  be  as  formal  as  a  bill  of  complaint, 
and  should  be  distinguished  for  brevity,  it  should  ex- 
hibit all  the  material  facts  which  are  relied  upon  for  the  specific 
relief  asked,  embodying,  either  by  recital  or  by  reference,  so 
much  of  the  record  of  the  original  suit  in  which  the  petition 
is  filed  as  is  essential  to  show  a  right  to  the  particular  relief 
demanded  by  the  petitioner.7  Where  the  petition  of  interven- 
tion contained  general  averments  showing  the  petitioner's  inter- 
est in  the  litigation  and  closed  with  a  statement  that  he  referred 
to  all  of  the  allegations  in  the  original  complaint,  in  so  far  as 


tion  by  him  for  advice.  There  has 
been,  however,  an  instance  where  the 
intervening  petition  of  a  stranger 
to  a  suit  was  entertained  to  force 
the  receiver  to  make  a  contract  for 
the  electric  lighting,  public  and 
private,  of  a  city,  which  was  depend- 
ent upon  the  operation  of  the  prop- 
erty in  the  hands  of  the  receiver  for 
that  purpose.  And.  in  that  case,  the 
judge  of  the  United  States  court 
said  that  he  would  consider  the  ap- 
plication out  of  public  necessity  and 
because  he  would  not  permit  his  re- 
ceiver to  leave  the  city  in  darkness 
for  want  of  a  proper  contract," 
Hodgen  v.  Met.  El.  Ry.  Co.,  U.  S.  C. 


C,   W.  D.  Mo.,  per  Phillips.  D.  J., 
May,  1894. 

§  250.  IXew  York  G.  &  I.  Co. 
v.  Tacoma  Ry.  &  M.  Co..  C.  C.  A., 
83  Fed.  3G5;  supra,  §  413. 

2  Farmers'  L.  &  Tr.  Co.  v.  Toledo, 
A.  A.  &  X.  Ry.  Co.,  07  Fed.  4fl,  53. 

3  Guarantee  Tr.  &  S.  D.  Co.  v. 
Duluth  &  W.  R.  Co.,  70  Fed.  803. 

4  U.  S.  v.  Northern  Securities  Co., 
12S  Fed.  SOS. 

5  Central  Tr.  Co.  v.  Wabash,  St. 
L.  &  P.  Ry.  Co.,  46  Fed.  156. 

6  Ransom  v.  Davis'  Adir.'rs,  18 
How,  205,  15  L.  ed.  38S. 

7  French  v.  Gapen.  105  F.  S.  509, 
519,  520,  26  L.  ed.  951,  954,  955. 


259] 


PRACTICE  OX  INTERVENTIONS. 


S:',5 


they  were  not  inconsistent  with   the   foregoing-  statement   and 
claim,  and  made  the  same  part  of  his  petition  ;  it  was  held  to  be 
not  defective  for  want  of  specific  allegations  of  the  matter  thus 
incorporated  by  reference.8     It  must  conform  to  the  general 
rules  of  pleading  and  must  meet  the  same  tests  that  are  applied 
to  ordinary  pleadings  to  determine  whether  a  cause  of  action  or 
a  defense  is  stated.9     It  will  be  construed  in  connection   with 
the  original  proceedings  in  the  suit.10     Where,  subsequently  to 
the  tiling  of  the  petition  of  intervention,  proceedings  have  been 
had  under  the  original  bill  which  would  fortify  the  right  of 
the   intervening  petitioner,  either  to  the  particular   relief  de- 
manded or  to  some  other  relief,  the  matter  should  be  incor- 
porated into  the  petition  of  intervention  by  amendment.11     A 
petition  seeking  the  payment  by  a  receiver  of  a  claim  must 
specifically  allege  that  he  has  sufficient  funds  which  are  prop- 
erly applicable  to  the  claim.1.2     A  petition  to  intervene  and  de- 
fend a  suit  should  be  accompanied  by  the  answer  proposed,13 
or,  at  least,  should  show  the  nature  of  the  defense.14     It  is  the 
usual  practice  to  verify  a  petition  of  intervention  by  the  oath 
of  the  petitioner.     An  affidavit  by  the  petitioner,  that  the  alle- 
gations in  the  petition   "are  true  as  he  verily  believes,"  was 
held  to  be  sufficient ;  and.  in  the  absence  of  a  traverse,  they  were 
presumed  to  be  true  upon  an  appeal.15     A  petition  of  interven- 
tion may  be  amended  by  leave  of  the  court.16     All  the  parties 
to  the  suit  are  presumed  to  be  parties  to  the  petition  of  inter- 


8  U.  S.  v.  Massachusetts  Bonding 
&  Ins.  Co.,  198  Fed.  923,  927. 

9  Continental  &  C.  Tr.  &  S.  Bank 
v.  Allis-Chalmers  Co..  200  Fed.  tiOO, 
607. 

10  Receiver  of  Cent.  R.  &  B'g.  Co. 
v.  Macon,  D.  &  S.  R.  Co.,  115  Fed. 
920.  927. 

11  Jenkins,  J.,  in  Empire  Dis.  Co. 
v.  McXulta.  C.  C.  A.,  77  Fed.  700, 
703. 

12  Ibid.  For  allegations  in  an  in- 
tervening petition,  by  the  bolder 
of  a  judgment  for  death  by  neg- 
ligence on  the  ground  that  the  road 
was  operated  by  a  company  acting 
as    the    agent    of    the    bondholders, 


which  were  held  to  be  too  vague  and 
indefinite  to  sustain  a  preference, 
see  Veatch  v.  Am.  L.  &  Tr.  Co..  C. 
('.    A..   79    Fed.   471. 

l3Toler  v.  East  Tcnn..  V.  &  G. 
Ry.  Co.,  67   Fed.   168. 

14  Grand  Trunk  Ry.  Co.  v.  Cen- 
tral  N't.   R.  Co..  91    Fed.  569. 

15  Louisville  Trust  Co.  v.  Louis- 
ville. New  Albany  <.v  C.  Ry.  Co..  174 
I  .  S.  (i74.  687-689,  43  L.  ed.  1130, 
1135.  1136;  s.  c.  as  Farmers'  Loan 
&  Trust  Co.  v.  Louisville.  New  Al- 
bany &  C  Ry.  Co.,  103  Fed.  110, 
115. 

WWillcox  v.  Jones,  C.  C.  A.,  177 
Fed.  870,  870. 


836 


INTERVENTIONS. 


[§  259 


vcntion,  and,  under  the  former  practice  were  presumed  to  take 
notice  of  the  same  when  it  was  filed,  although  it  was  safer 
to  serve  them.17  Xotice  of  an  application  for  intervention  may, 
by  leave  of  the  court,  be  served  on  the  attorneys  for  the  other 
parties  to  the  suit,  who  are  beyond  the  jurisdiction  of  the  court, 
unless  the  petition  sets  up  new  facts  not  set  out  in  the  bill  nor 
Germane  to  the  case  therebv  made,  which  are  made  the  basis 
of  a  prayer  for  independent  affirmative  relief,  when  it  has  been 
held  that  such  substituted  service  cannot  be  permitted.18  Xew 
parties  brought  in  by  the  intervenors  should  be  served  with  a 
subpoena  or  some  other  notice  in  the  same  manner  as  if  the  peti- 
tion were  an  original  bill.19  It  has  been  held,  that,  even  where 
the  parties  are  beyond  the  territorial  jurisdiction,  they  may  be 
served  by  mailing  to  them  a  copy  of  an  order  directing  that 
they  demur,  plead,  or  answer,  to  the  petition.20  The  proceed- 
ings in  the  suit  may  be  stayed  pending  the  hearing  upon  a  peti- 
tion of  intervention,  although  such  relief  is  extraordinary.21 
If  any  of  the  original  parties  wishes  to  contest  the  petition- 
er's right  to  intervene,  he  must  do  so  specifically  at  the  hearing 
upon  the  petition.22  Under  the  former  practice,  he  might  file 
a  demurrer,  plea,  or  answer  to  the  petition.23  Under  the  Equity 
Kules  of  1912,  the  objection  should  be  raised  by  a  motion  to  dis- 
miss.24 or  by  a  specific  defense  set  up  in  the  answer.25  Under 
the  former  practice  it  was  held  to  have  been  waived  Avhere  the 
complainant  consented  to  the  issue  of  process  on  a  petition  of 
intervention   and    demurred   thereto,   without  objecting   to   the 


17  Central  Tr.  Co.  v.  Madden,  C. 
C.  A..  70  Fed.  451:  McLeod  v.  City 
of  New  Albany,  (it)  Fed.  378;  Lom- 
bard Tnv.  Co.  v.  Seaboard  Mfg.  Co., 
74  Fed.  325.     See  supra,  §  257. 

18  Fidelity  Tr.  &  S.  V.  Co.  v.  Mo- 
bile St.  Ry.  Co..  ^>o  Fed.  850.  See 
supra,  $   165. 

19  Hook  v.  Mercantile  Tr.  Co..  95 
Fed.  41.  47. 

20  Bacfoe  v.  Hunt,  Thompson,  d. 
('.  ('..  X.  D.  Ohio.  \V.  Div  Dec.  4, 
11101.  (Appeal  dismissed  Bache  v. 
Hunt.  193  U.  S.  523,  524,  48  L.  ed. 
774.  775). 


21  Pennsylvania  Co.  v.  Jackson- 
ville. T.  &  K.  Ry.  Co..  55  Fed.  131. 

22  French  v.  Gapen,  105  U.  S.  509r 
525,  26  L.  ed.  951.  950;  Meyers  v. 
Fenn.  5  Wall.  205.  18  L.  ed.  604. 

23  Central  Tr.  Co.  v.  Wabash.  St.. 
L.  &  P.  Ry.  Co..  46  Fed.  156. 

24  See  Eq.  Rule  29 ;   Horn  v.  Pere- 
Marquette    R.    Co.,    151    Fed.    626; 
McClellan    v.    Blackman.    188    Fed. 
934. 

25  Eq.  Rule  29.  See  Central  Tr. 
Co.  of  X.  Y.  v.  Wabash,  St.  L.  &  P. 
Ry.  Co..  46  Fed.  156. 


§  259]  practice  on  interventions.  837 

right  of  intervention26  and  by  an  answer  to  the  merits  of  the 
inventor's  claim.27  But  the  usual  practice  is  to  present  the  ob- 
jections informally  by  affidavit  or  otherwise  upon  the  hearing.28 
It  was  held  that  the  objection,  that  the  intervenor's  claim 
was  barred  by  his  failure  to  present  the  same  within  the  time 
limited  by  a  previous  order  in  the  cause,  should  be  raised  by 
plea  and  not  by  demurrer.29  It  has  been  said  :  that  a  receiver 
may  be  required  to  plead  to  the  petition.30  A  failure  to  answer 
allegations  in  the  petition,  or  to  deny  the  same  by  affidavit,  is 
considered  to  be  an  admission  of  the  truth  of  the  same.31  The 
filing  of  a  replication  to  a  petition  of  intervention  and  the  pro- 
ceeding to  a  hearing  were  held  to  be  a  waiver  of  objections  to 
the  sufficiency  of  the  petition  and  to  the  absence  of  an  order 
granting  leave  to  intervene.32  At  the  hearing  upon  a  petition 
of  intervention  it  is  customary  for  the  court  to  determine  the 
right  of  the  petitioner  to  intervene ;  and  then,  if  it  decides  in 
his  favor  in  that  respect,  to  refer  the  case  to  a  master  to  report 
upon  his  right  to  the  other  relief  which  he  seeks.  But  the  court 
may  decide  the  whole  case  without  a  reference.33  If  he  shows  a 
prima  facie  case,  his  application  will  ordinarily  be  granted  ;  al- 
though the  questions  concerning  his  rights  in  the  premises  are 
doubtful.34  It  is  the  rule  in  the  Eighth  Circuit,  that  where  the 
petition  sets  up  a  cause  of  action  maintainable  at  common  law 
the  issue  shall  be  tried  by  a  jury.35  It  has  been  said  that  a 
denial  of  a  petition  for  leave  to  intervene  in  an  action  at  law  is 
res  ad  judicata  against  a  bill  in  equity  to  enjoin  the  proceed- 
ings and  to  permit  an  intervention ; 36  but  that  a  denial  of  leave 
to  intervene  in  a  suit  in  equity  is  not  res  adjudicata  against  an 

26  Illinois  Steel  Co.  v.  Ramsey,  C.  New  Albany  &  C.  R.  Co..  174  U.  S. 
C.  A.,  176  Fed.  853.  074,  4:5  L.  ed.  1130. 

27  Horn  v.  Pere  Marquette  R.  Co.,  M  Perry  v.  Godbe,  S2  Fed.  141. 
151   Fed.  020.  SSCentral    Tr.   Co.   v.   Madden.   70 

28  Interventions     in     tlie     Fedoral  Fed.  450. 

Courts,  by  Edward  C.  Eliot.  31  Am.  34  Brinekerhoff    v.    Holland    Trust 

Law  Rev.  377.  Co.,   140  Fed.  203. 

29  Central   Tr.  Co.  v.  Wabash,  St.  35  Rouse  v.  Ilornsby,  C.  C.  A.,  67 
L.  &  P.  Ry.  Co..  46  Fed.   156.  Fed.    219.       So    held     in    Atkyn    v. 

30  Mercantile   Trust   Co.    v.    Pitts-  Wabasli  Ry.  Co..  41    Fed.  193,  X.  D. 
burg  &   W.   Ry.   Co..   C.   C.   A.,   115  Ohio. 

Fed.  475.  3«McDonald  v.  Seli-man,  81  Fed. 

31  Louisville  Tr.  Co.  v.  Louisville       753. 


838 


INTERVENTIONS. 


[§   259 


original  hill  for  the  same  relief.37  Leave  to  intervene  when 
granted  should  be  given  by  order ; 38  but,  by  proceeding  without 
objection,  an  omission  to  enter  such  an  order  will  be  waived.39 
Tn  one  case,  intervening  petitions  filed  without  leave  were  strick- 
en from  the  files.40  Leave  has  been  granted  to  withdraw  an  in- 
tervention, with  the  pleading  of  the  intervener  and  the  testimony 
in  proceedings  in  relation  to  his  contention.41  The  filing  of 
a  petition  of  intervention  is  a  voluntary  general  appearance  in 
the  suit,  and  the  petitioner  is  thereby  estopped  from  claiming 
that  the  court  has  no  jurisdiction  over  him  for  any  purpose  or 
cause  which,  by  proper  amendment  of  the  pleadings,  can  be 
brought  into  it.42  After  intervention  the  new  parties  are 
treated  to  all  intents  and  purposes  as  if  they  had  been  original 
parties  to  the  suit.43  They  are  entitled  to  the  same  notice  and 
hearing  of  subsequent  proceedings  that  must  be  afforded  to  an 
original  party.44  It  has  been  held  that  bondholders,  who  inter- 
vene in  a  creditors'  suit,  may  enforce  a  guarantee  of  their 
bonds,  although  the  trustee  of  their  mortgage  is  not  made  a 
party.45  The  Equity  Rules  expressly  provide:  "The  inter- 
vention shall  be  in  subordination  to,  and  in  recognition  of,  the 
propriety  of  the  main  proceeding."  46     Previously  it  was  held, 


37  Credits  Commutation  Co.  v.  U. 
S.,  177  U.  S.  311,  44  L.  ed.  782. 
See  Manhattan  Tr.  Co.  v.  Sioux  City 
&  N.  R.  Co..  102  Fed.  710. 

38  For  the  form  of  an  order  see 
Ex  parte  Jordan,  94  U.  S.  248,  249, 
24  L.  ed.  123. 

39  Myers  v.  Fenn.  5  Wall.  205,  18 
L.  ed.  604;  French  v.  Gapen,  105 
U.  S.  509.  525,  26  L.  ed.  951,  956; 
Ferry  v.  Godbe,  82  Fed.  141. 

40  Continental  Trust  Co.  v.  Tole- 
do. St.  Louis  &  K.  C.  By.  Co..  82 
Fed.  642.  061  ;  s.  c,  86  Fed.  929, 
951.  Tn  the  same  case,  as  Toledo, 
St.  Louis  &  K.  C.  Ry.  Co.  v.  Con- 
tinental Trust  Co.,  C.  C.  A.,  95  Fed. 
497.  536.  it  was  said,  speaking  of 
an  answer  and  cross-bill  filed  by  a 
stranger  to  the  suit  without  per- 
mission: "He  should  have  sought 
admission  as  an  independent  defend- 


ant. This  he  did  not  do;  unless  the 
unauthorized  filing  of  his  pleading 
be  regarded  as  an  application  for 
leave  to  intervene.  If  so,  it  was 
denied  him." 

41  Vicksburg  v.  Vicksburg  Water- 
works Co.,  202  V.  S.  453,  461,  50 
L.  ed.  1102,  1108. 

42  Bowdoin  College  v.  Merritt,  59 
Fed.  6;  Jack  v.  D.  M.  &  Ft.  D.  R. 
Co.,  49  Ta.  627;  supra,  §§  169,  170. 
But  see  Laughlin  v.  Leigh,  107  111. 
App.  476. 

43  French  v.  Gapen,  105  U.  S.  509, 
525,  26  L.  ed.  951,  956. 

44  Gay  v.  Hudson  River  El.  Power 
Co.,  C.  C.  A.,  169  Fed.  1020. 

45  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  C.  C.  A.,  198  Fed.  721, 
753. 

46  Eq.  Rule  37.     See  Knickerbock- 


§  259] 


PRACTICE  ON  INTERVENTIONS. 


830 


that,  where  no  collusion  was  charged,  the  jurisdiction  of  the 
court  in  equity  and  its  power  to  appoint  a  receiver  could  not  be 
attacked   by   an   intervener    after   a   receiver's    appointment.47 
But  the  court  will  not  decide  an  independent  controversy  be- 
tween  an   intervenor   and   an   original   defendant  of   which    it 
would  have  no  jurisdiction  upon  an  original  bill,  unless  it  re- 
lates to  property  in  the  court's  possession.48     It  has  been  held 
that  an  intervening  stockholder  acquires  no  greater  right  in  the 
property  than  he  had  before  the  suit.49     The  stockholder,  al- 
though the  holder  of  preferred  stock,  who  has  intervened  in  a 
creditor's  suit  against  a  corporation,  after  insolvency  has  been 
charged  and  admitted  and  a  receiver  appointed,  cannot  oppose  a 
dismissal  of  the  bill  and  a  restoration  of  the  property  to  the 
company  which  consents  to  the  same.50     Where  an  intervening- 
petition  was  filed  in  a  foreclosure  suit,  asserting  a  lien  superior 
to  that  of  the  mortgage,  and  the  intervenor  was  found  to  have 
no  lien;  it  was  held  not  error  to  dismiss  the  petition  without 
awarding  him  a  money  judgment.51     Where  the  original  suit 
appeared  to  have  been  brought  by  collusion,  jurisdiction  was  re- 


er  Tr.  Co.  v.  Tarrytown.  W.  P.  &  M. 
Ry.  Co.,  139  App.  Div.  305. 

47  Cincinnati     Equipment     Co.    v. 
Degnan,    C.    C.    A.,    ]84    Fed.    834, 
where  the  objection  was  not  raised 
in  the  petition  of  intervention,  nor 
until   after  property  had  been  sur- 
rendered to  the  intervenor  under  a 
stipulation.      "Where    an    order    per- 
mitting a  lessee  to   redeem  from   a 
foreclosure  decree  and  to  be  subro- 
gated   to    the    rights    of    the    mort- 
gagor  complaint    was   made   by   the 
consent   of  a   stockholders'   commit- 
tee, which  appeared  by  counsel,  and 
recited   that   it   was   without   preju- 
dice to  the   right  of  the   mortgagoi 
or    its    stockholders    to    contest    the 
validity  of  the  lease  and  should  not 
determine  such  validity,  but  that  no 
subsequent  decree  between  the  par- 
ties should  affect  or  impair  the  sub- 
rogation  or  the   right   of   the   lessee 
to  collect  the  amount  of  the  decree 


"in  the  same  manner  and  with  the 
same  rights  as  the  original  bond- 
holders would  have  had;,"  it  was  held 
that,  under  the  provisions  of  the 
order,  the  stockholders  could  not  in- 
tervene and  attack  the  decree  as 
well  as  the  lease,  because  the  latter 
was  fraudulent,  but  that  they  were 
limited  to  a  proceeding  in  some 
proper  forum  to  hold  the  lessee  lia- 
ble in  damages.  U.  S.  Trust  Co.  v. 
Chicago  Terminal  T.  R.  Co.,  C.  C. 
A..  188  Fed.  292. 

48  United  El.  S.  Co.  v.  Louisville 
El.  L.  Co.,  68  Fed.  673;  Clyde  v. 
Richmond  &  D.  R.  Co.,  65  Fed.  336. 
See  Olds  Wagon  Works  v.  Benedict. 
C.  C.  A..  67  Fed.  1. 

49ShafTcr  v.  Mc(  'ulloch.  C.  C.  A., 
192  Fed.  801. 

BO  Shaffer  v.  McCulloch.  C.  C.  A., 
192    Fed.   KOI. 

51  F.  S.  Tr.  Co.  v.  Western  Con- 
tract  Co.,  C,  C.  A..  81    Fed.  454. 


840 


INTERVENTIONS. 


[§   259 


tained  over  intervening  petitioners  who  asserted  claims  to 
property  held  by  a  receiver  therein  appointed.52  Where,  at  the 
time  of  the  intervention,  the  suit  is  pending  in  a  State  court, 
the  interveners  may  in  a  proper  case  remove  it.53  Unless  it 
expressly  reserves  their  rights,54  they  have  the  right  to  appeal 
from  the  final  decree,  and  can  then  object  to  all  interlocutory 
proceedings  taken  after  their  intervention.55  The  final  order 
or  decree  upon  a  petition  of  intervention  after  the  intervention 
has  been  granted  may  be  reviewed  apart  from  the  appeal  from 
the  final  decree  in  the  whole  cause  where  it  is  distinct  from  the 
same ; 56  but  where  the  case  is  one  in  which  the  Circuit  Court 
of  Appeals  has  final  jurisdiction  of  an  appeal  from  the  decree 
in  the  original  cause,  its  decree  upon  an  appeal  from  the  final 
decree  or  order  upon  the  intervenor's  claim  is  likewise  final, 
even  though  a  Federal  question  is  involved  therein.57  It  has 
been  held  that,  where  the  issues  have  been  decided  by  a  jury 
trial,  the  review  should  be  by  writ  of  error,58  but  that  the  denial 
of  a  motion  to  intervene,  to  oppose  an  application  for  the  set- 
off of  judgment,  is  a  final  order  and  should  be  reviewed  by  an 
appeal.59  Where  a  denial  of  the  right  to  intervene  is  a  practical 
denial  of  all  relief  to  the  petitioner,  who  has  no  other  means  of 
redress,  an  appeal  will  lie  from  an  order  denying  an  interven- 
tion.60   For  example :  where  a  suit  is  brought  by  a  member  of  a 


52  El.  Supply  Co.  v.  Port  Bay  W. 
L.  &  Ry.  Co.,  84  Fed.  740. 

53  Mack  v.  Chicago  &  G.  S.  Ry. 
Co.,  23  Fed.  35G;  Jackson  &  Sharp 
Co.  v.  Pearson,  60  Fed.  113.  123; 
infra,  §  384.  But  see  Iowa  Home- 
stead Co.  v.  Des  Moines  Xav.  &  R. 
Co..  8  Fed.  9*. 

54  Reid  v.  Judges  of  Circuit  Court 
of  United  States  for  Eastern  Dis- 
trict of  Virginia.  C.  C.  A.,  175  Fed. 
774. 

5.5  Ex  parte  Jordan.  94  U.  S.  248, 
252,  24  L.  ed.  123,  125;  Williams 
v.  Morgan.  Ill  U.  S.  684,  28  L.  ed. 
559. 

56  Central  Tr.  Co.  v.  Grant  Loco- 
motive Works.  I:!.')  Q.  S.  207.  34  L. 
ed.  07 :  Pennsylvania  R.  Co.  v.  Wa- 
bash, St.  L.  &  P.  Rv.  Co.,  155  U.  S. 


335,  39  L.  ed.  176;  Rouse  v.  Horns- 
by,  67  Fed.  219;  Hanrick  v.  Patrick. 
119  U.  S.  156,  30  L.  ed.  396. 

57  Rouse  v.  Letcher,  156  U.  S.  47, 
39  L.  ed.  341;  Gregory  v.  Van  Ee, 
160  U.  S.  643,  40  L.  ed.  566;  Rguse 
v.  Hornsby,  161  U.  S.  588,  40  L.  ed. 
817. 

58  Rouse  v.  Hornsby,  C.  C.  A.,  67 
Fed.  219.  Otherwise  it  was  held 
where  the  trial  was  in  another  court 
before  the  intervention.  Shook  v. 
Dozier,  C.  C.  A.,  168  Fed.  867. 

59  Cathay  Trust  v.  Brooks.  C.  C. 
A.,  193  Fed.  973. 

60  Credits  Commutation  Co.  v.  U. 
S.,  91  Fed.  570.  573;  s.  c,  177  U.  S. 
311,  44  L.  ed.  782;  Illinois  Steel  Co. 
v.  Ramsey,  C.  C.  A..  176  Fed.  853; 
U.  S.  Trust  Co.  of  X.  Y.  v.  Chicago 


§  259] 


PRACTICE  ON  INTERVENTIONS. 


841 


class,  on  behalf  of  the  others  as  well  as  of  himself,  any  member 
of  that  class  has  the  right  to  appeal  £rom  an  order  denying  his 
application  for  an  intervention.61  So,  where  there  is 
a  fund  in  court  in  the  course  of  administration  which  will  be 
distributed  to  others  unless  the  intervener's  claim  is  forthwith 
determined.62  But  otherwise  an  order  denying  leave  to  inter- 
vene  is  ordinarily  not  appealable.63  Where  the  right  of  inter- 
vention has  been  allowed  by  the  court,  an  order  striking  the 
petition  from  the  files  is  the  subject  of  an  appeal.64  It  has  been 
held  that  the  proper  practice  is  for  the  District  Court  to  grant 
an  appeal  in  every  case,  leaving  the  question  of  the  appealabil- 
ity of  the  order  for  the  decision  of  the  court  of  review.65  It 
may  perhaps  be  reviewed  in  an  extraordinary  case,  by  an  ap- 
plication to  the  court  of  review  for  a  mandamus.66 

A  decree  in  a  foreclosure  suit,  upon  the  intervention  of  a 
receiver  for  the  mortgagor,  was  held  to  be  binding  on  all  parties 
to  the  suit  in  which  he  was  appointed,  including  interveners  in 
the  same.67  A  paper  styled  a  cross-bill,68  or  which  purports  to 
be  an  original  bill,69  if  otherwise  correct  in  form,  may  be  sus- 
tained as  a  petition  of  intervention.  A  paper  improperly  styled 
a  petition  of  intervention  may,  if  it  contains  the  necessary  alle- 


Terminal  Transfer  R.  Co.,  C.  C.  A., 
188  Fed.  292;  Cathay  Trust  v. 
Brooks,  C.  C.  A.,  193  Fed.  973. 

61  rilinois  Steel  Co.  v.  Ramsey,  C. 
C.  A..  176  Fed.  853,  803. 

62  Credits  Commutation  Co.  v.  U. 
S.,  C.  C.  A.,  91  Fed.  570,  573,  aff'd. 
177  U.  S,  311,  44  L.  ed.  782. 

63  Ex  parte  Cutting.  94  U.  S.  14, 
24  L.  ed.  49;  Jones  &  Laughlin's 
L'd  v.  Sands,  79  Fed.  913:  Credits 
Commutation  Co.  v.  U.  S.,  91  Fed. 
570,  573;  S.  C,  177  U.  S.  311.  44 
L.  ed.  782;  Toledo,  St.  L.  &  K.  C. 
R.  Co.  v.  Continental  Tr.  Co.,  95 
Fed.  497*  53G.  Ex  parte  In  the  Mat- 
ter of  Leaf  Tobacco  Board  of  Trade 
of  the  City  of  Xew  York,  Petitioner, 
222  U.  S.  578,  56  L.  ed.  3:23. 

64  Illinois  Steel  Co.  v.  Ramsey,  C. 
C.  A.,  176  Fed.  653.     But  see  Louis- 


ville Tr.  Co.  v.  Louisville,  X.  A.  & 
C.  Ry.  Co.,  174  U.  S.  674.  43  L.  ed. 
1130;  Hamlin  v.  Toledo,  St.  L.  & 
K.  C.  Ry.  Co..  36  L.R.A.  826,  78 
Fed.  664.  See  Land  Title  &  Trust 
Co.  v.  Tatnall,  C.  C.  A.,  132  Fed. 
305;  and  State  v.  Applebee.  C.  C. 
A.,  127   Fed.   1. 

65  1'.  S.  v.  Phillips,  C.  C.  A..  107 
Fed.  824. 

66  Re  Metropolitan  Railway  Re- 
ceivership. 208  U.  S.  90.  52  I-.  ed. 
403;  Fink  v.  Bay  Shore  Terminal 
Co..  C.  C.  A..    144    Fed.  S37. 

67  Atlantic  Trusi  Co.  v.  Dana,  C. 
C.  A..   128   Fed.  -2(19. 

68  French  v.  Gapen,  105  l".  S.  509, 
519,  26  L.  ed.  9.")1.  954;  Gregory  v. 
Pike,  67  Fed.  837  ;  Minot  v.  Mastin, 
95    Fed.    7:'.4. 

6% Supra,  §  172. 


842 


IXTEK  VEX  TIOX  S. 


[§   200 


gations,  be  sustained  as  a  cross-bill.70  Where  relief  was  granted 
upon  a  petition  for  intervention,  which  regularly  should  have 
been  sought  by  an  original  bill,  since  all  the  parties  interested 
had  been  brought  before  the  court  and  had  had  a  hearing,  the 
decree  was  affirmed.71 

§  260.  Rights  of  intervening  complainants.  Under  ordi- 
nary circumstances,  a  person  who  intervenes  as  plaintiff  will 
not  be  allowed  to  be  represented  by  a  different  solicitor  from 
the  one  who  represents  the  original  complainant  at  the  time  of 
the  former's  intervention.1  The  person  who  brought  the  suit 
remains  dominiis  litis.  The  court  may,  however,  direct  that 
the  intervener  be  notified  in  the  event  of  any  proposal  to  dis- 
pose of  the  cause,  otherwise,  than  in  the  usual  way  at.  final 
hearing  of  pleadings  and  proof,  in  which  case  an  application  to 
allow  him  to  continue  the  litigation  bv  his  own  attorney  will  be 
considered.2  In  case  of  laches  bv  the  attornevs  for  the  original 
complainant,  an  intervening  plaintiff  may  be  allowed  to  con- 
tinue the  case  by  his  own  attorney.3  Permission  to  do  this  may 
be  conditioned  upon  his  giving  security  to  pay  whatever  the 
court  may  hud  to  be  due  the  latter  as  his  ratable  proportionate 
share  of  the  expense  of  the  litigation.4  When  the  intervening 
plaintiff  moved  to  bring  in  a  new  defendant,  to  which  the  orig- 
inal plaintiff  objected,  a  Xew  York  court  granted  the  motion, 
upon  condition  that  the  moving  party  give  a  bond  to  indemnify 
the  plaintiff  against  any  costs  that  such  defendant  might  re- 
cover.5 

An  intervening  complainant  cannot  contest  the  general  ob- 
ject of  the  suit.6  It  has  been  held  that,  where  a  creditor  delavs 
his  intervention  until  after  a  decision  in  favor  of  the  plaintiff, 


70  Central  Tr.  Co.  of  N.  Y.  v. 
Marietta  &  X.  Ry.  Co.,  63  Fed.  492. 

71  Central  of  Georgia  Ry.  Co.  v. 
Paul.  93  Fed.  878. 

§  200.  IBowker  v.  Haight  & 
Freese  Co.,  140  Fed.  794;  Manning 
v.  .Mercantile  Tr.  Co.,  37  Misc.  N. 
Y.  215.  75  X.  Y.  Supp.  168. 

2  Bowker  v.  Haight  &  Freese  Co., 
140  Fed.  794. 

3  Manning  v.  Mercantile  Trust 
Co..  37  Misc.   (X.  Y.)   215,  75  X.  Y. 


Supp.    168;    Edwards  v.   Bay   State 
Gas  Co.,  120  Fed.  585. 

4  Manning  v.  Mercantile  Trust 
Co.,  37  Misc.  (X.  Y.)  215,  75  X.  Y. 
Supp.  108. 

5  Weed  v.  First  Xational  Bank, 
117  App.  Div.  (X.  Y.)  340.  But 
see  Edwards  v.  Bay  State  Gas  Co.. 
120  Fed.  585. 

6  Forbes  v.  Memphis,  El.  P.  &  Pac. 
By.  Co.,  2  Woods,  323.  324. 


§  261] 


KIGI1TS  OF  IXTEi;VENI.\(J   DEFENDANTS. 


843 


the  payment  of  his  claim  may  be  postponed  until  after  those 
who  have  conducted  the  litigation  have  received  full  satisfae* 
tion.7 

§  261.  Rights  of  intervening  defendants.  In  the  absence 
of  fraud  or  collusion.1  a  intervening  defendant  can  ordinarily 
set  up  no  defense  of  which  the  original  defendant  could  b.61  have 
availed  itself.2  This  is  so  in  the  case  of  intervening  stockhold- 
ers,8 and  creditors.4  An  intervener,  whether  a  stockholder  or 
creditor,  cannot  raise  the  objections:  that  the  court  has  no  juris- 
diction;5 that  the  defendant  corporation,  which  is  a  mortgagor, 
has  no  legal  existence;6  or,  in  the  case  of  a  creditor's  hill,  that 
the  complainant  has  not  obtained  judgment  and  execution  re- 
turned unsatisfied;  7  when  these  have  been  waived  by  the  orig- 
inal defendant;  nor  any  other  defense  which  such  defendant  is 
estopped  from  interposing.8  But  a  lienor,  who  intervenes  in  a 
foreclosure  suit  can  contest  the  validity  of  bonds  secured  by 
the  mortgage.9 


7  Smith  v.  Kraft.  11  Biss.  340; 
Jones  v.  Davenport,  45  N.  J.  Eq.  77, 
S7.  Cf.  McDermott  v.  Strong,  4  J. 
Ch.  (N.  Y.)  687;  Edmiston  v.  Lyde, 
1  Paige  (X.  Y.),  639,  10  Am.  Dec. 
454.  But  see  Wilder  v.  Keeler,  3 
Paige  (N.  Y.),  164.  23  Am.  Dec. 
781;   Strike's  Case,  1   Bland    (.Md.). 

57. 

§  261.  1  Louisville  Trust  Co.  v. 
Louisville,  New  Albany  &  C.  Ry. 
Co.,  174  U.  S.  674.  43  Li.  ed.  1130; 
Farmers'  Loan  &  Trust  Co.  v.  To- 
ledo &  S.  H.  R.  Co.,  43  Fed.  223. 
225;  Bartlett  v.  Gates,  US  Fetf.  66. 

2  Central  Trust  Co.  v.  McGeorge, 
151  U.  S.  129,  38  L.  ed.  98;  Re 
Metropolitan  Railway  Receivership, 
208  U.  S.  90,  52  L.  ed.  403;  Powell 
v.  Leicester  Mills.  92   Fed.   115. 

3  Central  Trust  Co.  v.  McGeorge, 
151  U.  S.  129.  38  L.  ed.  98:  Dicker- 
man  v.  Northern  Trust  Co..  176  I  . 
S.  181,  18S.  44  L.  ed.  423.  429:  I'.ig 
Creek.  G.  C.  &  I.  Co.  v.  Am.  L.  & 
Tr.  Co.,  127  Fed.  625,  633:  Forties 
v.  Memphis.  El  Paso  &  Pac.  Ry.  Co., 


2  Woods.  323:  Fed.  Cas.  No.  4.926; 
Land  Title  &  Tr.  Co.  v.  Asphalt  Co., 
114  Fed.  484. 

4  Central  Tr.  Co.  v.  McGeorge,  151 
l".  S.  129,  38  L.  ed.  98:  Re  .Metro- 
politan Railway  Receivership.  208 
U.  S.  90.  52  L.  ed.  403:  Horn  v.  Pere 
Marquette  R.  Co.,  151   Fed.  625. 

5  Central  Tr.  Co.  v.  McGeorge,  151 
U.  S.  129.  38  L.  ed.  98;  Horn  v. 
Pere  Marquette  R.  Co..  151  Fed. 
626,  633. 

6  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  &    K.  C.  R.  Co..  82    Fed.  642. 

7  Re  Metropolitan  Railway  Re- 
ceivership. -JUS  I".  S.  90,  52  L.  ed. 
403;  Horn  v.  Pere  Marquette  R.  Co., 
151  Fed.  626,  633;  Grand  Trunk  Ry. 
Co.  v.  Central  Vt.  Ryl  Co.,  85  Fed. 
87. 

8  Farmers'  L.  &  Tr.  Co.  v.  Chicago 
&  X.  P.  R.  Co..  68  Fed.  412:  Consul. 
Rubber  Tire  Co.  v.  FinleJ  Rubber 
Tire  Co.,  119  Fed.  7115.  Hut  see 
llnllins  v.  Krierlicld  C.  &  I.  Co.;  150 
C.  S.  371,  379,  37   L.  ed.  1113. 

9  Fanner--'   Loan  &  Tr.  Co.  v.  To 


844 


INTERVENTIONS. 


[§  261 


Where  the  mortgagor  and  the  mortgage  bondholders  have  ar- 
ranged for  a  sale  to  a  purchaser  who  agreed  to  give  the  stock- 
holders an  interest  in  the  property  without  extending  that 
privilege  to  unsecured  creditors,  the  creditors  who  have  no 
judgments  may  be  allowed  to  intervene  and  set  the  foreclosure 
sale  aside.10  It  has  been  said :  that  in  a  creditor's  bill,  the  inter- 
vening creditors  are  not  concluded  by  collateral  averments  which 
concede  the  validity  of  certain  bonds  and  mortgages  affecting 
the  property ;  and  that  they  may  attack  the  validity  of  the 
same.11  A  stockholder,  who  has  intervened  as  such  in  a  stock- 
holders' suit  and  received  a  dividend,  cannot  subsequently  re- 
pudiate his  subscription  as  obtained  by  fraud  and  claim,  as  a 
creditor,  a  priority  over  other  stockholders.12 

Under  a  general  creditor's  bill,  any  creditor  who  intervenes 
may  attack  the  claim  of  any  other  creditor,13  except,  perhaps, 
that  of  the  complainant.14  If  the  complainant  prays 
;i  ] (reference,  an  intervenor  may  attack  his  claim.15  "When 
a  creditor's  suit  has  been  consolidated  with  a  subsequent  fore- 
closure suit,  he  can  attack  the  mortgage  or  the  right  of  any 
bondholder  to  share  in  the  proceeds  of  the  sale..16 

A  manufacturer,  who  intervened  to  defend  a  patent  case 
brought  against  one  of  his  customers,  was  held  to  be  bound  by 


ledo  &  S.  H.  R.  Co..  43  Fed.  223, 
225;  Severens,  J.:  "In  my  opinion, 
the  court  would  assert  its  dignity 
with  a  needlessly  high  hand  if  it 
rejected  an  application  to  come  in 
and  prevent  the  same  from  being 
the  agent  of  wrong  by  persons  act- 
ing collusively  upon  purely  artificial 
reasons."  (The  final  decree  was  re- 
versed upon  another  point  S.  C,  C. 
G.  A.,  51  Fed.  338). 

10  Louisville  T.  Co.  v.  Louisville. 
N.  &  C.  Ry.  Co.,  174  U.  S.  674.  43 
L.  ed.  1130. 

U  Continental  Trust  Co.  v.  Tole- 
do. St.  L.  &  K.  C.  R.  Co.,  82  Fed. 
042.  647. 

12  Seminole  Securities  Co.  v. 
Southern  Life  Ins.  Co..  182  Fed.  85, 
97. 


13  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  &  K.  C.  R.  Co.,  82  Fed.  642. 
647 ;  Shewen  v.  Vanderhorst,  1  Russ. 
&  M.  347;  Owens  v.  Dickerson, 
Craig  &  P.  48,  56;  YVoodgate  v. 
Field,  2  Hare,  211,  213;  Graves  v. 
Wright,  2  Dru.  &   War.  77,  79. 

14  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  k  K.  C.  R.  Co.,  82  Fed.  642, 
647;  Fuller  v.  Redman,  26  Beav. 
614;  Briggs  v.  Wilson,  5  De  Gex,  M. 
&  G.   12. 

l^Ogilvie  v.  Knox  Ins.  Co.,  2 
Black.  539,  17  L.  ed.  340;  Carter  v. 
New  Orleans,  19  Fed.  659;  Campau 
v.  Detroit  Driving  Club,  130  Mich. 
147. 

16  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  &  K.  C.  Ry.  Co.,  82  Fed.  642, 
C47. 


§    261]  EIGHTS  OF  INTERVENING  DEFENDANTS.  845 

an  estoppel  which  affected  the  original  defendant.17  When  an 
intervenor  wishes  to  avail  himself  of  a  defense  peculiar  to  him 
or  to  assert  his  individual  right  before  a  receiver  has  been  ap- 
pointed or  property  is  in  the  custody  of  the  court,  the  safer 
practice  for  him  is  to  file  a  cross-bill.18 

17  Consolidated  Rubber  Tire  Co.  v.  "  See  Bartlett  v.  Gates,  118  Fed. 

Finley    Rubber    Tire    Co.,    119    Fed.       66.    Supra,  §  171. 
705.  * 


CHAPTER  XVIII. 


INJUNCTIONS. 


§  262.  Definition,  classification,  and  objects  of  injunc- 
tions. An  injunction  is  a  writ  issued  from  a  court  of  equity  com- 
manding a  person  to  do  an  act  or  acts  other  than  the  payment  to 
the  complainant  of  a  sum  of  money,  or  not  to  do  an  act  or  acts 
specified  therein.  According  to  the  different  aspects  from  which 
they  are  considered,  injunctions  are  classified  as  judicial  writs, 
and  writs  remedial;  as  mandatory  and  prohibitory:  as  provi- 
sional and  perpetual;  or  as  common  and  special.  Before  de- 
scribing the  different  characteristics  of  each  of  these  classes,  it 
may  be  well  to  refer  briefly  to  the  different  occasions  for  the 
issue  of  the  writ.  Injunctions  may  be  obtained  to  enforce  a 
trust  or  other  purely  equitable  right,  to  compel  obedience  to  a 
covenant  or  other  contract  affecting  land,  to  compel  the  obed- 
ience of  corporations  to  their  charters,  to  prevent  a  multiplicity 
of  suits,  generally  to  prevent  an  irreparable  injury  for  which 
damages  at  law  would  be  no  adequate  remedy,  and  also  in  cases 
in  which  they  are  expressly  authorized  by  statute. 

§  263.  Injunctions  to  enforce  trusts  and  other  purely 
equitable  rights.  As  trusts  and  other  purely  equitable  rights 
are  not  recognize*]  in  courts  of  law,  equity  will  always  inter- 
fere to  protect  them  by  injunction  when  they  are  threatened 
with  infringement.1  On  this  account  an  injunction  may  lie  ob- 
tained  to  prevent  the  revelation  or  use  of  a  secret  of  manu- 
facture by  a  workman  who  has  learned  it  under  an  express  or 
implied  promise  of  secrecy,  on  one  to  whom  such  a  person  has 

§  26.3.     1  Scott  v.  Becher,  4  Price,  L.  ed.  783:   Cowles  v.  Whitman.   10 

34(i :    hi  re  Chertsy  Market,  6  Trice.  Conn.    121.    25    Am.    Doc.    GO:    Bisp- 

263;    Sloo   v.   Law,    3   Blatchf.   459:  ham's   Eq.,   S    '-'>:    Kerr  on  Injunc- 

Draper  v.   Davis,   104  U.  S.  347.  20  tions,   172.  173. 

846 


2(U] 


INJUNCTIONS  AGAINST  ACTS  ULTRA  VIBES. 


847 


disclosed  it;2  and  to  restrain  the  publication  of  lectures,8  manu- 
scripts4 or  works  of  art5  heard  or  obtained  under  an  express  or 
implied  agreement  not  to  publish  or  reproduce  them.  Whether 
or  not  the  publication  of  private  letters  which  have  no  value  as 
literary  productions  can  be  restrained  at  the  prayer  of  their 
writer,  upon  the  ground  that  this  would  be  a  breach  of  an  im- 
plied trust,  is,  under  the  authorities,  an  open  question.6 

§  264.  Injunctions  to  restrain  corporations  from  violat- 
ing their  charters.  The  charters  of  corporations  are  consid- 
ered "in  the  light  of  contracts  made  by  the  legislature  on  behalf 
of  every  person  interested  in  anything  to  be  done  under  them."  1 
On  account  of  the  irreparable  injury  that  would  otherwise  en- 
sue, and  in  the  case  of  corporation  to  whom  the  State's  right 
of  eminent  domain  is  delegated,  because  they  are  trustees,2  the 
disobedience  of  a  corporation  to  its  charter  may  be  restrained 
by  injunction,  at  the  suit  either  of  the  Attorney-General3  of 
the  State  to  which  it  owes  its  existence,  or  of  any  individual 
who  suffers  special  injury  thereby.4  This  rule  applies  whether 
the  act  complained  of  has  been  forbidden  expressly,  or  merely 
by  implication  as  not  included  within  the  powers  expressly  given 
to  the  corporation  and  those  which  are  necessary  for  their  proper 


2  Yovatt  v.  Winyard,  1  Jac.  & 
Walk.  394;  Morison  v.  Moat,  9 
Hare,  241;  Peabody  v.  Norfolk,  98 
Mass.  452.  9G  Am.  Doc.  664'.  But 
.see  Newbery  v.  James,  2  Meriv.  446. 

3  Abernethy  v.  Hutchinson,  3  L. 
J.  Ch.   209. 

4  Stapleton  v.  Foreign  V.  Ass'n, 
12  W.  R.  976;  Scheile  v.  Brakell, 
11  W.  R.  796.  See,  however, 
Southy   v.   Sherwood,   2   Meriv.   435. 

5  Prince  Albert  v.  Strange,  1 
Macn.  &  G.  25,  42. 

6  Woolsey  v.  Judd,  4  Duer  ( N. 
Y.),  379,  and  Eyre  v.  Higbee,  35 
Bart).  (X*.  V.),  502,  hold  that  they 
can,  and  Judge  Story  concurs  in 
this  view.  Folsom  v.  Marsh,  2 
Story,  100,  109,  110;  Story's  Eq. 
Jur.,  §§  946-948.  But  the  opposite 
view   is  maintained   in  Gee   v.   Prit- 


chard,  2  Swanst.  402;  Wetmore  v. 
ScovelL  3  Edw.  Ch.  (X.  Y.)  515; 
Hoyt  v.  Mackenzie,  3  Barb.  Ch.  (X. 
Y.)  320;  Brandreth  v.  Lance.  8 
Paige  (X.  Y.),  24.  28,  34  Am.  Dec. 
368. 

§  264.  l  Blakemore  v.  Glamor- 
ganshire Canal  Xav.,  1  Myl.  &  \\. 
154,  162. 

2  M'Coy  V.  Chicago.  I..  St.  L.  & 
C.  R.  Co.,  13  Fed.  3. 

3  Atty.  Gen.  v.  Groat  X.  Ry.  Co.. 
1    Dr.    &    Sin.     154;    Atty.    Gen.    V. 

35    Wis.    425.      But 

v.   I'tica    Ins.   Co.,   2 

V.)   371. 

North  Staffordshire 
Ry.  Co..  3  Sm.  &  QiS.  283;  Colman 
v.  Eastern  Counties  Ry.  Co.,  10 
Beav.  1. 


Railroad     Cos.. 

see  Atty.  Gen. 

.Johns.  Ch.    (X. 

4  Bostock    v. 


848 


INJUNCTIONS. 


[§  264 


exercise.5  "It  is,"  said  Lord  Elatherley,  "a  principle  of  public 
policy  that  where  Parliament  has  authorized  a  company  to- 
raise  a  large  capital  for  a  specified  purpose,  the  privilege  con- 
fers no  right  upon  the  company  to  employ  their  capital  in 
competition  with  the  general  public  upon  speculations  of  a  dif- 
ferent character."  6  Injunctions  to  restrain  corporations,  pub- 
lic7 and  private,8  from  wasting  their  funds,  belong  to  this 
class.  "It  is  because  these  companies,  being  armed  with  the 
power  of  raising  large  sums  of  money,  if  they  were  allowed  to 
apply  their  funds  to  purposes  other  than  those  for  which  they 
were  constituted,  might  acquire  such  a  preponderating  in- 
fluence and  command  over  some  particular  branch  of  trade  or 
commerce,  as  would  enable  them  to  drive  the  ordinary  private 
trader  from  the  field,  and  create  in  their  own  favor  a  practical 
monopoly,  whereby  the  interests  of  the  public  would  be  most 
seriously  injured.''9  When  the  corporation  violates  its  charter 
by  refusing  to  perform  an  act  thereby  expressly  or  impliedly 
commanded,  it  has  been  held  that  the  Attorney-General  can- 
not compel  its  obedience  by  a  mandatory  injunction,  but  should 
in  such  a  case  apply  for  a  mandamus.10  A  private  individual 
suing  to  enjoin  a  corporation  from  violating  its  charter  must 
show  some  special  damage  caused  to  himself  by  the  breach.11 
A  shareholder  in  a  company  is  considered  to  incur  special  dam- 
age by  its  diverting  its  funds  to  other  purposes  than  its  charter 
authorizes,  and  can  obtain  an  injunction  to  restrain  it  from  so 
doing,12  even,  it  has  been  held,  if  he  bought  shares  in  the  com- 
pany for  the  very  object  of  preventing  it;13  provided  that  he 
sues  in  good  faith,  and  does  not  act  as  the  mere  puppet  of  a 


5  Atty.  Gen.  v.  Great  X.  Ry.  Co., 
1  Dr.  &  Sm.  ]54. 

6  Cited  in  Kerr  on  Injunctions, 
p.  473. 

7  Crampton  v.  Zabriskie.  101  U, 
S.  601.  609.  25  L.  ed.  1071.  supra. 
§  79;  High  on  Injunctions,  1 4th 
ed.)    §§  1236-1307. 

8  Smith  v.  Chase  &  Baker  Piano 
Mf-.  Co..  197  Fed.  466:  supra, 
S  I4">:  High  on  Injunctions,  (4th 
ed.)  §  1184: 

9  Atty.  Gen.  v.  Great  X.  Ry.  Co., 
1  Dr.  &  Sm.   154.  159,  160. 


10  Atty.  Gen.  v.  B.  &  O.  J.  Ry. 
Co..  15  Jur.  1024:  People  v.  Albany 
&  Yt.  R.  Co.,  24  X.  Y.  261.  82  Am. 
Dec.  295. 

H  Chamberlaine  v.  Chester  &  B. 
Ry.  Co..  1  Kxch.  869.  877;  Railroad 
Co.  v.  Ellcrnmn.  105  V .  S.  1(ili.  173, 
174.  20  L.  ed.   1015.   1017.   1018. 

!2Colnian  v.  Eastern  Counties 
Ry.  Co.,  10  Beav.  1.  Supra,  §  145: 
High  on  Injunctions.  (4th  ed.) 
§§   1224-1229. 

13  Colman  v.  Eastern  Counties 
Ry.   Co.,   10   Beav.   1:    Atty.   Gen.  v. 


§   2G4] 


INJUNCTIONS  AGAIXST  ACTS  ULTKA  VIRES. 


S49 


rival  corporation;14  and  that  the  suit  is  not  brought  "against 
the  corporation  and  other  parties;  founded  oil  rights  which  may 

properly  lie  asserted  by  the  corporation/"15  The  holder  of  a  lien 
to  secure  an  indebtedness  of  a  corporation  is  also,  it  -.ems.  en- 
titled to  an  injunction  in  a  similar  case.16  An  unsecured 
creditor  cannot  bring  such  a  suit.17  except  under  very  extraor- 
dinary circumstances.18  One  whose  land  has  been  taken  from 
him  for  the  use  of  a  corporation  by  the  exercise  of  the  State's 
right  of  eminent  domain  can  obtain  an  injunction  to  restrain 
the  use  of  the  land  for  any  other  purpose  than  is  allowed  by 
the  company's  charter,*9  provided  at  least  that  he  can  show  that 
he  is  thereby  injured.20  It  is,  however,  no  proper  ground  for 
complaint  by  an  individual  that  a  corporation  by  exercising 
powers  not  conferred  upon  it  by  its  charter  enters  into  com- 
petition with  him,  and  thereby  diminishes  the  profits  of  his 
trade  or  calling. ?1  An  English  judge  has  said:  "Where  a  stat- 
ute prohibits  the  doing  of  a  particular  act  affecting  the  public, 
no  person  has  a  right  of  action  against  another  merely  because 
he  has  done  the  prohibited  act.  It  is  incumbent  on  the  party 
complaining  to  allege  and  prove,  that  the  doing  of  the  act  pro- 
hibited has  caused  him  some  special  damage,  some  peculiar  in- 
jury, beyond  that  which  he  may  be  Supposed  to  sustain  in  com- 
mon with  the  rest  of  the  Queen's  subjects,  by  an  infringement 


Great  N.  Ry.  Co.,  1  Dr.  &  Sin.  154; 
Bloxam  v.  Met.  Ey.  Co.,  L.  R.  3 
(  li.  337. 

14  Forrest  a-.  Manchester,  S.  &  L. 
Ry.  Co.,  4  De  G.,  F.  &  J.  120:  Filder 
v.  London.  B.  &  S.  C.  Ry.  Co.,  1  IT. 
&  M.  489;  Robson  v.  Dodds.  L.  R. 
8  Eq.  301  ;  Rogers  v.  Oxford.  W.  & 
W.  R.y.  Co.,  2  De  G.  &  J.  662. 

15  Eq.  Rule  27 ;  Hawes  v.  Oakland, 
104  V.  S.  450,  20  L.  ed.  827.  See 
supra,  $$  70.  145,  156. 

16  Bagsli'aw  v.  Eastern  U.  Ry.  Co., 
2  Macn.  &  C.  380;  Herrick  v.  Orand 
T.  Ey.  Co.,  7  Up.  Can.  L.  J.  240. 
And  it  has  been  held  that  such  a 
bondholder  need  not  show  that  the 
corporation  is  not  in  collusion  with 
Iiim.  Mercantile  T.  Co.  V.  Texas  & 
R.  Ey.  Co..  51    Fed.  520,  530. 

Fed.  Prac.  Vol.  I.— 54. 


17  Syers  v.  Brighton  B.  Co.,  1 1  L. 
T.  (X.  S.)  560;  Mills  v.  Northern 
Ey.  of  Buenos  Ayres  Co.,  23  L.  T. 
(X.  S.)   710. 

18  Evans  v.  Coventry,  5  De  C...  M. 
&  G.  011. 

19  Bostock  v.  North  S.  Ey.  Co.,  3 
Sm.  &  Giff.  283. 

20  £ast  &  W.  India  Docks  &  B. 
J.  Ry.  Co.  v.  Dawes.  11  Hare.  363; 
Lee  v.  Milner,  2  Y.  &  C.  011  ;  Ware 
v.  Regents  Canal  Co..  3  De-G.  & 
J.  212. 

21  Railroad  Co.  v.  Ellennan.  105 
I".  S.  100.  173.  174.  20  L.  ed.  1015, 
1017.  1018.  Hut  see  Brady  v.  South 
Shore  Traction  Co.,  197  Fed.  609. 


s;,o 


INJUNCTIONS. 


[I 


265 


of  the  law.  But  where  the  act  prohibited  is  obviously  prohib- 
ited for  the  protection  of  a  particular  party,  there  it  is  not  neces- 
sary to  allege  special  damage."  22 

§  265.  Injunctions  to  enforce  the  specific  performance 
of  covenants  and  other  contracts  affecting  land.  As  no  two 
pieces  of  land  are  exactly  alike,  equity  considers  that  in  no 
case  can  damages  in  money  be  adequate  compensation  for  the 
breach  of  a  covenant  or  other  contract  affecting  land.1  Ac- 
cordingly, the  specific  performance  of  contracts  for  the  pur- 
chase or  sale  of  land  and  of  covenants  affecting  the  same,  will 
be  specifically  enforced  with  the  aid  of  an  injunction,  when- 
ever they  are  mutual,2  certain,3  not  unconscionable,4  and  their 
enforcement  would  be  practicable.5  The  rule  concerning  the  en- 
forcement of  covenants  affecting  land  has  been  thus  stated :  "If 
the  construction  of  the  instrument  be  clear  and  the  breach  clear, 
then  it  is  not  a  question  of  damage,  but  the  mere  circumstance 
of  the  breach  of  covenant  affords  sufficient  ground  for  the  court 
to  interfere  by  injunction."  6  This  is,  however,  subject  to  the 
exception  that  if  it  would  be  against  public  policy  to  enforce 
the  covenant, — for*  example,  if  a  change  of  circumstances  has 
rendered  it  improper  to  use  land  in  accordance  with  the  terms 
of  a  covenant  regulating  its  use, — or  if,  on  account  of  such  a 
change,  the  object  of  the  parties  to  the  covenant  would  not  be 
accomplished  by  its  enforcement,  equity  will  not  interfere.7 


22  Pollock,  C.  B.  in  Cliamberlaine 
v.  Chester  &  B.  Ry.  Co..  1  Ex- 
chequer, 869,  877.  See  Blakemore 
v.  C.lamorganshire  Canal  Nav.,  1 
Mylne  &  Keen,  154,  162. 

§  265.  1  Adderley  v.  Dixon,  1 
Sim.  &  Stu.  607;  Bispham's  Eq., 
§  375. 

2  Dorsey  v.  Packwood,  12  How. 
126,  13  L.  ed.  921;  Bispham's  Eq., 
§  377. 

3  Colson  v.  Thompson,  2  Wheat. 
336.  4  L.  ed.  253;  Bispham's  Eq., 
§  377. 

*Surget  v.  Byers,  Hempst.  715; 
Piouiultree  v.  McLain,  Hempst.  245; 
Miss.  &  Mo.  R.  Co.  v.  Cromwell.  91 
V.  S.  643.  23  L.  ed.  367;  Bispham's 


Eq.,  §  376.  See  Randoph's  Ex'r  v. 
Quidnick  Co.,  135  U.  S.  457,  34  L. 
ed.  200. 

5  Ross  v.  Union  Pac.  R.  Co.,  1 
Woolw.  26 ;  Fallon  v.  Railroad  Co., 
1  Dill.  121;  Texas  &  Pac.  Ry.  Co. 
v.  Marshall,  136  U.  S.  393,  34  L.  ed. 
385;  Bispham's  Eq.,  §  377. 

6  V.  C.  Wood  in  Tipping  v.  Eck- 
ersley,  2  K.  &  J.  264.  See  also  Lord 
Manners  v.  Johnson.  L.  R.  1  Ch.  D. 
673;  Lloyd  v.  London.  C.  &  D.  Ry. 
Co.,  2  De  G.,  J.  &  S.  568;  T.  of 
Columbia  College  v.  Lynch,  70  N. 
Y.  404.  See  High  on  Injunctions, 
(,4th  ed.)   §  330. 

7  Duke  of  Bedford  v.  British  Mu- 
seum,  2   M.  &   K.   552;    Troy  &   B. 


266] 


TO  PREVENT  MULTIPLICITY  OF  SUITS. 


851 


§  266.  Injunctions  to  prevent  a  multiplicity  of  suits. 
Injunctions  are  granted  in  order  to  prevent  a  multiplicity  of 
suits  under  bills  of  peace.  Bills  of  peace  arc  bills  to  restrain  a 
number  of  persons  from  endeavoring  to  enforce  in  different 
suits  the  same  or  similar  claims; *  or  to  prevent  a  single  person 
from  reiterating  in  several  successive  suits  the  same  iinsuccess 
ful  claim;2  or  to  prevent  a  person  from  levying  a  tax.  the  pay- 
ment of  which  will  subject  the  plaintiff  to  the  hazard  of  a  num- 
ber of  suits  from  other  parties;3  bills  of  interpleader4  and  in 
the  nature  of  interpleader;5  bills  to  enjoin  a  continuing  tres- 
pass,6 nuisance,7  infringement  of  patents,8  copyrights9  and 
trade-marks;10  and  bills  to  quiet  possession.11  Injunctions  to 
restrain  a  continuing  trespass,  nuisance  and  the  infringement 
of  patents,  copyrights  and  trade-marks,  are  more  often  said  to 
be  granted  to  prevent  irreparable  injury,  and  will,  therefore, 
be  considered  under  that  head.  An  injunction  to  quiet  the  pos- 
session before  the  hearing  formerly  issued  to  restrain  the 
party  to  whom  it  was  directed  from  taking  forcible  possession  of 
lands  pending  litigation  concerning  them.  It  was  issued  at  the 
request  of  either  a  plaintiff  or  a  defendant  to  a  suit,  if  the  ap- 


R.  Co.  v.  Boston,  H.  T.  &  W.  Ry. 
Co.,  86  N.  Y.  107;  Columbia  College 
v.  Thacher,  87  X.  Y.  311,  41  Am. 
Rep.  365 ;  Leake's  Digest  of  the  Law 
of  Contracts,  1152.  But  see  Lloyd 
v.  London,  Cli.  &  D.  Ry.  Co.,  11 
Jur.   IN.  S.J   380. 

S  266.  i  Sheffield  Water  Works 
v.  Yeomans.  L.  R.  2  CI).  App.  8. 
See  Scottish  Union,  etc.  Ins.  Co.  v. 
J.  H.  Hohlmann  &  Co.,  73  Fed.  00; 
supra,  §§  140,  141.  But  see  Kansas 
City  Southern  Ry.  Co.  v.  Quigley. 
181Fed.   190. 

2  Karl  of  Bath  v.  Sherwin,  4 
Brown  Parliamentary  Cases,  373. 
But  see  United  Cigarette  Mach.  Co 
v.  Winston  Cigarette  Mach.  Co.,  C 
C.  A..  ]94   Fed.  947. 

3  Cummings  v.  National  Bank. 
Kil  U.  S.  153.  157.  25  L.  ed.  0113. 
904;    Pelton  v.   National   Bank,   101 


U.  S.  143,  148,  25  L.  ed.  901,  902; 
Hills  v.  Exchange  Bank,  105  U.  S. 
319.    2G    L.  ed.    1052;    supra,    §    79. 

4  Louisiana  State  Lottery  Co.  v. 
Clark,  10  Fed.  30;  s.  C,  4  Woods, 
169:  McLaughlin  v.  Swann,  18  How. 
217.  15  L.  ed.  357:  City  Bank  v. 
Skelton,  2  Blatehf.  14:   supra. $  157. 

5Dorn  v.  Fox.  til  N.  V.  264; 
supra.   §    158. 

6  Northern  Pac.  R.  Co.  v.  Burling- 
ton &  Missouri  R.  Co..  2  McCrary, 
203:    infra,  §  275. 

7  Woodruff  v.  North  BToomfield  <;. 
M.  Co..  18  Fed.  753.  Sec  infra. 
§274. 

M.S.  II.  S..  §  4921:  supra,  §  277. 

9  U.  S.  R.  S.,§  497H:  supra,  §  1  Hi: 
infra,  §  278. 

io  sl,a\v  Stocking  Co.  v.  .Mack.  12 
Fed.    7117  :    supra.   ■*   279. 

11  Hughes  v.  Mordcn  College.  1 
Yes.    Sen.    1SS.      See   supra,    §    82. 


852  injunctions.  [§  267 

plicant  had  Lad  peaceable  possession  of  the  premises  for  the 
three  years  preceding  the  filing  of  the  bill,  and  his  interest 
therein  had  not  been  determined  by  forfeiture,  surrender,  or 
other  lawful  means.  He  was  required  to  swear  to  these  facts 
in  his  bill,  and  according  to  the  practice  before  Lord  Bacon's 
time  to  give  a  bond  to  the  amount  of  £10  as  a  security  that  the 
information  so  given  was  true.12  Such  injunctions  were  former- 
ly very  common ;  but  have  now  fallen  into  disuse.  The  last 
reported  instance  was  in  Lord  Hardwicke's  time.13 

§  267.  Injunctions  to  prevent  irreparable  injury  for 
which  the  remedy  at  law  is  inadequate;  in  general. 
The  most  ordinary  ground  upon  which  an  injunction  issues, 
and  the  one,  indeed,  which  includes  all  but  the  first  of  those 
previously  mentioned,  is  that,  otherwise,  the  plaintiff  would 
suffer  an  irreparable  injury,  for  which  damages  at  law  would 
be  no  adequate  remedy.  It  would  be  impossible  specifically  to 
mention  here  all  the  different  instances  in  which  an  injunction 
issues  for  this  reason ;  but  the  following  is  an  enumeration  of 
those  of  more  frequent  occurrence  which  have  not  been  pre- 
viously described.  An  injunction  will  issue  on  account  of  the 
inadequacy  of  the  remedy  at  common  law;  to  stay  proceedings 
in'  other  courts,  either  of  law,  equity,  or  admiralty ;  *  to  restrain 
the  indorsement  or  negotiation  of  notes  and  bills  of  exchange, 
the  sale  of  land,  the  sailing  of  a  ship,  the  transfer  of  stock, 
or  the  alienation  of  a  specific  chattel ;  2  to  restrain  the  commis- 
sion of  every  species  of  waste  or  act  in  the  nature  of  waste ; 3 
to  suppress  the  continuance  of  a  public  or  private  nuisance;4 
to  prevent  a  threatened  destructive  trespass;5  to  prevent  the 
infringement  of  patents ; 6  to  prevent  the  violation  of  copyright, 
whether  by  printed  publications,  or  theatrical  representation,  or 
otherwise ; 7  to  prevent  the  unauthorized  use  of  trade-marks,8 
and  the  opening  of  private  letters ; 9  to  compel  the  performance 
or  prevent  the  breach  of  contracts  other  than  those  for  the  pay- 
is  Eden  on  Injunctions,  ch.  xvi,  4  §  271. 
p.  240.  5§  272. 
13  Hughes  v.  Morden  College,  1  6  §  273. 
Ves-.  Sen.  188.  7§  274. 
§  207.  1§  268.  8§  275. 
2§  209.  9§  276. 
3  8  270. 


§  268] 


AGAINST  SUITS. 


853 


ment  of  monev  onlv: 10  under  very  extraordinary  circumstances, 
to  compel  the  delivery  of  personal  property  wrongfully  with- 
held.11 to  enjoin  the  revocation  of  a  license  permitting  a  for- 
eign corporation  to  do  business  within  the  State.12  An  in- 
junction has  been  granted  to  restrain  the  sale  by  scalpers  of 
return  railroad  tickets,  which  by  their  terms  were  not  trans- 
ferable,  when  the  use  of  such  tickets  could  only  be  made  by 
fraud  ; 13    and  to  prevent  the  creation  of  a  cloud  on  a  title.14 

§  268.  Injunctions  to  stay  proceedings  in  other  courts. 
In  general.  Injunctions  to  stay  proceedings  in  other  courts 
are  of  much  less  frequent  occurrence  now  that  discovery  and 
the  inspection  of  documents  can  be  obtained  at  common  law 
without  the  aid  of  equity  than  they  were  formerly;  but  they 
are  still  often  issued,  especially  in  bankruptcy.1  Such  injunc- 
tions must  not  be  confounded  with  writs  of  prohibition,  which 
are  addressed  to  the  judges  of  a  court,  whereas  injunctions  are 
directed  to  the  parties  to  the  proceedings  which  it  is  desired  r>> 
restrain.2  Ordinarily,  when  two  courts  have  a  concurrent  juris- 
diction over  the  same  thing,  whichever  court  was  first  possessed 
of  the  cause  has  a  right  to  proceed  with  the  same,  and  proceed- 
ings in  it  will  not  be  prohibited  or  restrained  by  another.3  An 
injunction  against  an  application  for  an  injunction  should  not 
be  granted;  since  the  equities  of  the  complainant  can  be  amply 
protected  in  the  suit  sought  to  be  enjoined.4  It  was  at  first 
held  that  a  court  had  no  power  to  restrain  a  defendant  from  su- 
ina-  in  a  foreign  court ; 5  but  it  is  now  established  that  it  can  do 


10  §  278. 
"  §  279. 

12  Ludwig  v.  Western  Union  Tel. 
Co.,  216  U.  S.  146,  152. 

13  Bitterman  v.  Louisville  &  Nash- 
ville R.  R.  Co..  207  U.  S.  20.i.  52 
L.  ed.  171  ;  Nashville,  C.  &  St.  L. 
Ry.  Co.  v.  McCnnnell.  82  Fed.  05; 
sii)>ra,  §§  70,  141. 

14  Wilson  v.  Lanbert,  168  U.  S. 
611.  42  L.  ed.  509. 

§  268.  1  .McLean  v.  Lafayette 
Bank,  3  McLean,  185;  In  re 
Schwartz,   14   Fed.  787. 

2  See  Fden  on  Injunctions,  ch.  ii ; 
Peck  v.  Jenness,  7   How.  624,  12  L. 


ed.  846;  Dillon  v.  K.  C.  S.  R.  Ry. 
Co.,  43   Fed.   109,   111. 

3  Nicholas  v.  Nicholas,  Free,  in 
Ch.  546;  Daniell's  Ch.  Pr.  (2d  \m. 
ed.)  1845;  supra,  §§  52,  60.  But  see 
Erie  Ry.  Co.  v.  Ramsey,  45  N.  Y. 
637. 

*  Robertson  v.  Montgomery  Base- 
ball Ass'n,  141  Ala.  348,  109  Am. 
St.  Rep.  30,  37  So.  388,  3  Ann.  Cas. 
965. 

5  Love  v.  Baker,  1  Ch.  Cas.  i>7. 
decided  by  Lord  Clarendon;  but  the 
reporter  added,  "scd  Quaere,  for  all 
the  bar  was  of  another  opinion." 


854 


INJUNCTIONS. 


[§  269 


so,6  although  such  a  power  is  exercised  with  great  caution. 
Where  the  parties  to  a  suit,  and  the  greater  part  of  the  property 
which  is  the  subject  of  the  litigation,  are  within  the  jurisdiction 
of  a  court,  where  a  suit  affecting  the  same  was  first  instituted 
and  complete  relief  can  there  be  afforded ;  an  injunction  against 
the  institution  of  a  suit  for  the  same  object,  in  a  foreign  juris- 
diction, may  be  granted.7  The  Constitution  does  not  forbid  a 
State  court  from  enjoining  in  a  proper  case  a  person  within  its 
jurisdiction  from  prosecuting  a  suit  in  a  court  of  another  State.8 
An  injunction  order  providing  "that  all  suits  and  proceedings 
mi  the  part  of"  certain  persons  "against  the  said  bankrupt,  to 
collect  the  debt  set  forth,  be,  and  the  same  are  hereby  stayed,  to 
await  the  determination  of  the  court  in  bankruptcy  on  the  ques- 
tion of  the  discharge  therein,"  was  held  violated  by  those  who 
after  discontinuing  a  suit  then  pending,  subsequently  instituted 
another  to  recover  the  same  claim,  with  new  allegations  charg- 
ing fraud.9 

§  269.  Injunctions  to  stay  proceedings  in  Federal  courts. 
It  wTas  at  first  doubted  whether  a  Circuit  Court  of  the  United 
States  had  the  power  to  enjoin  the  prosecution  of  a  suit  in  a 
Federal  court  in  another  Circuit; x  although  the  power  to  enjoin 
the  prosecution  of  a  suit  in  another  district  of  the  same  Circuit 
was  early  exercised.2  It  is  now  settled,  however,  that  a  District 
Court  of  the  United  States  can,  in  a  proper  case,  enjoin  the 
prosecution  of  a  suit  in  any  other  court  of  the  United  States.3 
A  manufacturer,  who  has  obtained  a  decree  in  his  favor,  which 
has  been  affirmed  by  the  Circuit  Court  of  Appeals  in  one  Cir- 


6  Bunbury  v.  Bunbury,  1  Beav. 
318;  Portarlington  v.  Soulby.  3 
Myl.  &  K.  104;  Debon  v.  Foster,  4 
Allen  (Mass.)  545;  Engel  v. 
Scheuermann  40  Ga.  206,  2  Am.  Bep. 
573;  Massie  v.  Watts,  6  Crancb, 
148,  3  L.  ed.  181;  Cole  v.  Cunning- 
bam,  133  U.  S.  107,  33  L.  ed.  538. 

7  United  Cigarette  Mach.  Co.  v. 
Wright,  156  Fed.  244. 

8  Vail  v.  Knapp,  49  Barb.  (X. 
V.i    299;    Story's   Eq.   Jur.    §§    899, 

'. :    Cole    v.    Cunningham,    133    U. 

S.  107,  33  L.  ed.  538. 


9  In  the  matter  of  Schwartz,  14 
Fed.  787.  For  the  construction  of 
an  order  forbidding  the  use  of  a 
certain  defense,  see  Wakelee  v. 
Davis,  50  Fed.  522. 

§  209.  iKelley  v.  Vpsilanti,  D. 
S.  Mfg.  Co.,  44  Fed.  19,  20,  per 
Brown,  J. 

2  Monumental  Say.  Ass'n  v.  Fen- 
tress,  125  Fed.  812. 

3  Kessler  v.  Eldred,  206  U.  S.  285, 
51  L.  ed.  1065. 


§  269] 


AGAINST   PKOCEEDINGS   IN    U.    S.    COUETS. 


855 


cuit,  can  enjoin  the  complainant,  who  is  defeated,  from  bringing 
similar  suits  based  on  the  same  patent  against  the  customers  of 
the  former  in  any  Circuit  of  the  United  States,4  or  in  a  foreign 
country ; 5  even  in  a  Circuit  where  the  Circuit  Court  of  Ap- 
peals has  held  under  similar  facts  in  favor  of  the  patentee ; 6 
a  suit  previously  brought-  may  be  thus  enjoined.7  The  same 
relief  may  be  obtained  by  a  manufacturer,  who,  although  not  a 
party  of  record  to  the  suit  resulting  in  the  adjudication,  had 
filed  there  a  stipulation  that  it  was  defending  the  case.8  Ordi- 
narily, suits  which  have  been  previously  instituted  to  enjoin 
the  infringement  of  a  patent,  will  not  be  enjoined ;  the  defend- 
ant being  allowed  to  assert,  in  such  a  suit,  any  equitable  defense 
that  he  may  have ; 9  but  when  there  is  a  multiplicity  of  suits, 
involving  the  same  defenses,  the  courts  in  which  any  of  such 
cases  are  pending  may  stay  proceedings  therein,  until  the  suit 
between  the  patentee  and  the  principal  infringer  is  decided.10 
Where  some  of  the  defendants  set  up  different  defenses,  it  was 
held  that  the  court  "could  not  restrain  in  part  and  permit  in 
part  the  prosecution  of  the  cases.  It  would  have  no  right  to 
issue  an  injunction  which  should  [sic]  have  the  effect  to  split 
up  the  cases,  enjoining  their  prosecution  as  to  some  branches  of 
the  controversy  and  permitting  it  as  to  the  others,"  u  A  bill  to 
enjoin  defendant  from  prosecuting  an  action  at  law  for  an  in- 
fringement cannot  be  sustained  when  the  only  grounds  alleged 
are  that  complainant  will  be  put  to  great  expense  for  attorney's 
fees  and  other  costs,  and  that  he  is  informed  that  defendant  will 
be  unable  to  pay  the  same.12     The  subsequent,  commencement 


4  Ibid. 

5  Goodyear  Tire  &  Rubber  Co.  v. 
Rubber  Tire  Wheel  Co.,  164  Fed. 
869. 

6  Kessler  v.  Eldred,  206  U.  S.  285, 
51  L.  ed.  1065. 

7  Kessler  v.  Eldred,  206  U.  S.  285, 
286,  51  L.  ed.  1065,  1066. 

8  Marshall  v.  Bryant  Electric  Co., 
C.  C.  A.,  185   Fed.  499. 

BKelley  v.  Ypsilariti  D.  S.  Mfg. 
Co.,  44  Fed.  19;  Am.  School  Furni- 
ture Co.  v.  J.  M.  Sauder  Co.,  106 
Fed.  731 ;  Commercial  Acetylene  Co. 
v.  Avery  Portable  Lighting  Co.,  152 


Fed.  642;  Kryptok  Co.  v.  Stead 
Lens  Co.,  190  Fed.  767;  Gamewell 
Fire  Alarm  Telegraph  Co.  v.  Star 
Electric  Co.,  199  Fed.  188. 

10  Rumford  Chem.  Works  v.  Hec- 
ker,  5  Off.  Gaz.  644;  Allis  v.  Stow- 
ell,  16  Fed.  783;  Nat.  Cash  Reg. 
Co.  v.  Boston  Cash  I.  &  R.  Co.,  41 
Fed.  51 ;  Commercial  Acetylene  Co. 
v.  Avery  Portable  Lighting  Co.,  152 
Fed.  642. 

n  Germain  v.  Wilgus,  C.  C.  A., 
67  Fed.  597. 

12  Dyer.  J.,  in  Allis  v.  Stowell,  16 
Fed.  783,  790. 


s.-.G 


INJUNCTIONS. 


[§    270 


of  suits  upon  the  same  patent,  against  the  customers  of  the  orig- 
inal defendant,  may  he  enjoined  pending  the  suit  against  the 
manufacturer  in  a  proper  case.13  It  has  been  held:  that  in  a 
suit  by  the  Uuited  States  to  vacate  a  patent  for  an  invention,  a 
preliminary  inj miction  will  not  be  granted  to  restrain  the  prose- 
cution by  the  defendant  of  suits  for  the  infringement  of  the 
patent.14  An  injunction  in  a  Federal  court  in  another  Circuit, 
forbidding  the  collection  of  a  judgment,  was  followed  and  held 
to  bind  the  parties ;  but  not  to  prevent  the  collection  by  the  at- 
torneys of  one  of  them  of  so  much  thereof  as  they  had  a  lien 
upon.15  It  has  been  said:  that  a  Federal  court  of  equity  cannot 
enter  a  decree  directing  the  entry  of  a  satisfaction  of  a  judg- 
ment at  law  in  the  same  court ;  since  a  court  on  its  common-law 
side  has  the  power  to  direct  such  entry.16  A  District  Court  of 
the  United  States  cannot  enjoin  a  party  to  a  judgment  at  com- 
mon law  therein,  from  suing  out  a  writ  of  error  from  the  Cir- 
cuit Court  of  Appeals  to  review  the  same.17  A  State  court  has 
no  power  to  stay,  by  injunction,  a  proceeding  in  a  court  of  the 
United  States.18 

§  270.  Injunctions  to  stay  proceedings  in  State  courts. 
The  Judicial  Code  re-enacting  a  section  of  the  Re- 
vised Statutes1  provides  that  "The  writ  of  injunc- 
tion shall  not  be  granted  by  any  court  of  the  United 
States  to  stay  proceedings  in  any  court  of  a  State, 
except  in  cases  where  such  injunction  may  be  authorized  by 
any  law  relating  to  procedings  in  bankruptcy."  2    ''This  prohibi- 


13  Birdsell  v.  Hagerstown  Agr. 
Imp.  Mfg.  Co.,  1  Hughes,  64,  Fed. 
(as.  No.  1,437;  Ide  v.  Ball  Engine 
Co.,  31  Fed.  901;  Commercial  Ace- 
tylene Co.  v.  Avery  Portable  Light- 
ing Co.,  152  Fed.  642:  Lovell-M'Con- 
nell  Mfg.  Co.  v.  Automobile  S.  Mfg. 
Co.,  193  Fed.  658,  659,  663. 

"  U.  S.  v.  Colgate,  21  Fed.  318. 

15  W,  A.  Chapman  &  Co.  v.  Mont- 
gomery W.  P.  Co.,  127  Fed.  839. 

iSMacrum  v.  U.  S..  C.  C.  A.,  154 
Fed.  653.  See  Holt  v.  Dorsey,  Fed. 
Pas.  No.  6,647;  Medford  v.  Dorsey, 
Fed.  Cas.  Nos.  9,3S9,  9,390. 


17  Macrum  v.  U.  S.,  C.  C.  A.,  154 
Fed.  653. 

18  McKim  v.  Voorhies,  7  Cranch, 
270.  3  L.  ed.  342;  Duncan  v.  Darst, 
1  How.  301-306,  11  L.  ed.  139,  141; 
City  Bank  of  N.  Y.  v.  Skelton,  2 
Blatcbf.  14:  Beardslee  v.  Ingraliam, 
183  N.  Y.  411,  3  L.R.A.(N.S.)   ]073. 

§  270.     1  U.  S.  R.  S.,  §  720. 

2Jud.  Code.  §  265.  36  St.  at  L. 
10S7.  See  Slaughter  House  Cases, 
10  Wall.  273,  19  L.  ed.  915:  Haines 
v.  Carpenter.  91  U.  S.  254.  23  L. 
ed.  345:  Dial  v.  Reynolds.  96  U.  S. 
340,  24  L.  ed.  644;  Rensselaer  &  S. 


§  270]     AGAINST  PROCEEDINGS  EN  STATE  COURTS. 


857 


tion  of  the  statute  extends  to  all  cases  over  which  the  State  court 
first  obtains  jurisdiction,  and  applies  not  only  to  injunctions 
aimed  at  the  State  court  itself,  but  also  to  injunctions  aimed  at 
parties  before  the  court,  its  officers  or  litigants  therein." 
Accordingly  a  Federal  court  has  refused  to  enjoin:  a  railway 
company  from  taking  possession  of  land  upon  the  termination 
of  condemnation  proceedings  in  a  State  court,  to  which  the 
applicant  for  the  injunction  was  a  party;4  the  plaintiff  in  a 
foreclosure  suit  from  selling  property  under  a  decree  of 
the  State  court  therein,  although  the  Federal  complainant  is 
not  a  party  to  such  suit,  and  claims  a  lien  upon  such  property, 
which  is  in  the  hands  of  a  receiver  appointed  by  such 
court ; 5  and  a  town  from  selling  property  to  pay  an  assessment 
the  collection  of  which  has  ben  ordered  by  a  State  court  direct- 
ing the  laying  out  of  a  highway,6  a  State  receiver  from  issuing 
receiver's  certificates ; 7  parties  to  a  suit  in  a  State  court  from 
carrying  out  an  agreement  sanctioned  by  it,8  and  an  adminis- 
trator from  distributing  the  estate  in  his  hands.9  But  an  in- 
junction has  been  granted  forbidding  an  ancillary  administrator 
from  receiving  any  portion  of  the  estate  under  any  order  of 
distribution,  by  either  the  local  probate  court  or  the  court  of 
original  probate  jurisdiction;  although  the  court  refused  to 
enjoin  him  from  removing  any  part  of  the  estate  beyond  its 
jurisdiction.10  It  has  been  held:  that  the  statute  forbids  an 
injunction  to  stay  proceedings,  in  a  suit  where  the  State  court 
has  no  jurisdiction;  at  least  where  no  Federal  right  has  been 


R.  Co.  v.  Bennington  &  R.  R.  Co., 
18  Fed.  617:  M.,  K.  &  T.  Ry.  Co. 
v.  Scott,  13  Fed.  793;  s.  c,  4  Woods, 
386;  Hamilton  v.  Walsh,  23  Fed; 
420;  Tifft  v.  Iron  Clad  Mfg.  Co.,  10 
Blatchf.  48;  Yick  Wo  v.  Crowley, 
26  Fed.  207;  Scruggs  &  Echols  v. 
Am.  Cent.  Ins.  Co.  of  St.  Louis,  C. 
C.  A.  176  Fed.  224;  Quinton  v. 
Equitable  Iriv.  Co.,  C.  C.  A.,  196 
Fed.  314*;  Maxwell  v.  McDaniels,  C. 
C.  A..   184  Fed.  311. 

3  Toulniin,  D.  J.,  in  Whitney  v. 
Wilder,  C.  C.  A.,  54  Fed.  554,  555; 
Chicago  Trust  &  Sav.  Bank  v.  Bentz, 
C.  C.  A.,  59  Fed.  645.  647. 


4  Dillon  v.  Kansas  City  S.  B.  Ry. 
Co.,  43  Fed.  109. 

5  Security  Trust  Co.  v.  Union 
Trust  Co.,  134  Fed.  301. 

6Fen\vick  Hall  Co.  v.  Old  Say- 
brook,  66  Fed.  389. 

7  Reinacb  v.  Atlantic  &  C.  W.  R. 
Co.,  58  Fed.  33. 

8  Ibid. 

9  Whitney  v.  Wilder,  C.  C.  A.,  54 
Fed.  554. 

10  Ingersoll  v.  Coram,  132  Fed. 
168;  aff'd,  Coram  v.  Ingersoll,  C.  C. 
A.,  133  Fed.  126. 


858 


INJUNCTIONS. 


P 


270 


invaded.11  "Where  a  bill  prays  an  injunction  or  stay  of  proceed- 
ings in  a  State  court,  and  also  other  relief  which  would  be  use- 
less without  such  an  injunction,  the  whole  bill  will  be  dismissed 
on  demurrer.12    A  county  commissioners'  court  in  Texas,  when 
declaring  the  result  of  an  election,13  and  a  public  service  commis- 
sion,14 were  said  not  to  be  within  the  statute.     So  were  held  to 
be  officers  seizing  intoxicating  liquors  under  search  and  seizure 
warrants.15     But  where  an  appeal  to  a  State  court  had  been 
taken  from  the  decision  of  a  board,   and  the  proceeding  re- 
manded after  affirmance  with  directions  to  extend  the  time  for 
the  performance  of  the  order,  it  was  held  that  the  proceedings 
in  the  State  court  were  not  terminated  and  that  no  Federal 
injunction   could   be   granted.16     The   statute   forbids    an    in- 
junction against  the  taking  of  depositions.17     The  statute  does 
not    forbid    an    injunction    against    the    commencement    of    a 
criminal,18  or  a  civil  suit,  not  already  brought.19     The  statute 
does  not  forbid  a  Federal  injunction,  obtained  by  a  person  not 
a  party  to  a  suit  in  the  State  court,  which  enjoins  the  complain- 
ant in  the  latter  from  committing  acts,  which,  in  the  State  court, 
he  has  enjoined  a  defendant  to  the  Federal  suit  from  prevent- 
ing.20    Nor.  it  has  been  held,  a  suit  to  enjoin  a  person  from 
setting  up  a  claim  to  the  right  to  use  a  railroad  switch,  which 
the  court  has  held  that  he  was  entitled  'to  use,  where,  since  the 
decision,  the  corporation  has  sold  the  switch  to  the  plaintiff 
to  the  injunction  suit.21     It  has  been  held  that  a  Federal  court 


"Senior  v.  Pierce,  31  Fed.  625, 
031;  Phelps  v.  Mut.  Pveserve  Fund 
Life  Ass'n,  C.  C.  A.,  61  L.R.A.  717, 
112  Fed.  453.  Contra,  Southern  Ry. 
Co.  v.  Simon,  153  Fed.  234.  See 
Mo-pan  v.  Sturges,  154  U.  S.  256,  38 
L.  ed.  981. 

12  Molony  v.  Massachusetts  Loan 
Ass'n,  53  Fed.  209. 

13  August  Busch  &  Co.  v.  Webb, 
122  Fed.  655. 

14  Central  Vermont  Ry.  Co.  v. 
Redmond,  189  Fed.  683. 

15  Danciger  v.  Stone,  188  Fed.  510. 

16  Central  Vermont  Ry.  Co.  v. 
Redmond,  189  Fed.  6S3. 


IV  Am.  Shipbuilding  Co.  v.  Whit- 
ney, 190  Fed.  109. 

18  Infra,  §  271;  Minneapolis  Gen- 
eral E.  Co.  v.  City  of  Minneapolis, 
194  Fed.  215;  Jewel  Tea  Co.  v.  Lee's- 
Summit.  Mo.,  198  Fed.  532. 

19  Texas  &  Pac.  Ry.  Co.  v.  Kute- 
men,  C.  C.  A.,  54  Fed.  547:  Laigh- 
ton  v.  City  of  Carthage,  Mo.,  175 
Fed.  145;  Western  Union  Tel.  Co. 
v.  Cooper,  182  Fed.  710;  Kansas 
City  Gas  Co.  v.  Kansas  City,  198- 
Fed.  500. 

20  New  York  Cotton  Exch.  v. 
Hunt.   ]44  Fed.  511. 

21  Oman  v.  Bedford-Bowling  Green 
Stone  Co.,  C.  C.  A.,  134  Fed.  64. 


§  270]     AGAINST  PKOCEEDINGS  IN  STATE  COURTS. 


S59 


can  prevent  by  injunction  the  levy  by  a  State  sheriff  under 
State  process  against  a  State  judgment-debtor  upon  the  prop- 
erty of  a  stranger  to  the  suit  and  process;22  but  not  the  sale  by 
the  sheriff  of  the  property  of  sureties  on  a  sale  bond  under  the 
execution  of  a  State  court;23  nor;  it  seems  can  it  enjoin  the 
sale    by    the     sheriff    of    property    in    his     possession     ami 


the    custodv    of    the     State    court 


24 


although 


levied    upon     by     the     sheriff,     but 


the 
not     in 


receiver,    was    enjoined    at    the    suit    of 


sale 
the 
the 

It 


m 

of    land, 
hands    of    a 

owner,  who  was  not  a  party  to  the  judgment.25 
has  been  held  that  a  Federal  court  may  enjoin:  the  entry 
upon  land,  under  a  title  acquired  by  condemnation  proceedings 
in  the  State  court,  when  the  application  for  the  injunction  is 
made  by  a  person  claiming  an  interest  in  the  land,  who  was 
not  made  a  party  to  those  proceedings;26  the  use  of  a  judg- 
ment of  a  State  court  when  the  validity  of  the  judgment  is  not 
thereby  impaired;27  the  issue  of  execution  upon  a  judgment 
of  a  State  court,  entered  against  a  party  who  was  not  served 
with  process ; 28  may  enjoin  a  defendant  from  selling,  encum- 
bering, or  in  any  way  disposing  of,  lands  brought  at  a  sheriff's 
sale ; 29  and  from  making  a  wrongful  or  an  inequitable  use  of 
an  execution  on  a  judgment  of  a  State  court;30  that  a  Federal 
court  has  power  to  issue  an  injunction  to  stay  proceedings 
in  a  State  court  which  interfere  with  the  enforcement  of  one  of 
its  own  judgments,  and  to  stay  proceedings  which  have  been 
instituted  or  continued  after  the  beginning  or  removal  of  the 
suit  in  the  Federal  jurisdiction.31     "It  is  now  so  thoroughly 


22  Cropper  v.  Coburn,  2  Curt.  465. 

23  American  Ass'n  Ld.  v.  Hurst, 
59  Fed.  1. 

24  Daly  v.  Sheriff,  1  Woods,  175, 
Fed.  Cas.  No.  3,553 ;  Southern  Bank 
&  Tr.  Co.  v.  Folsom,  C.  C.  A.,  75 
Fed.  920;  Watson  v.  Bondurant,  2 
Woods,  1GG;  Ferry  v.  Sharpe,  8  Fed. 
23;  supra,  §  52. 

25Jiriian  v.  Central  Trust  Co;,  C. 
C.   A.,   115   Fed.   950. 

26  Colorado  Eastern  R.  Co.  v.  Chi- 
cago B.  &  Q.  R.  Co.,  C.  C.  A.,  141 
Fed.  89S;  Sehnltz  v.  Highland  Gpld 
Mines  Co.,  158  Fed.  337. 


27  Linton  v.  Mosgrove,  ]4  Fed. 
543,  criticised  in  Am.  Ass'n  Ld. 
v.  Hurst,  59  Fed.  1,  4,  but  sup- 
ported by  Provident  L.  &  Tr.  Co. 
v.  Mills,  91  Fed.  435;  Lehman  v. 
Graham,  C.  C.  A.,  135  Fed.  39,  see 
supra.  §  51. 

28  Southern  Ry.  Co.  v.  Simon.  158 
Fed.  234. 

29  Massie  v.  Buck,  C.  C.  A.,  128 
Fed.  27.     See  supra,  §  51. 

30  Linton  v.  Safe  Deposit  &  Title 
Guaranty  Co.,  147  Fed.  824. 

31  French  v.  Hay.  22  Wall.  250, 
22    L.   ed.   857;    Dietzsch   v.   Huide- 


860 


IX  J  UNCTIONS. 


[§   270 


settled  that  this  provision  of  law  does  not  apply  to  proceedings 
incidental  to  jurisdiction  properly  acquired  by  a  Federal  court 
for  other  purposes  than  that  of  enjoining  proceedings  in  a 
State  court,  that  the  proposition  needs  no  discussion."32  Such 
an  injunction  should  rarely  be  issued.33  It  has  been  held 
that  where  property  is  in  the  possession  of  a  receiver  of  a  Fed- 
-ral  court,  it  may  enjoin  a  suit  in  the  State  court  which  at- 
tempts to  establish  an  easement  thereupon,34  but  not  an  action 
in  personam  against  the  receiver ; 35  that  where  property  has 
been  sold  under  a  decree  directing  that  the  purchaser  pay  all 
claims  against  the  receiver,  the  court  will  enjoin  a  suit  against 
the  purchaser36  in  the  State  court,  but  that  this  rule  does  not 
apply  where  property  in  the  possession  of  a  receiver  is  returned 
to  the  original  owners  on  the  same  conditions ; 37  that  under 
the  act  of  Congress  limiting  the  liability  of  the  owners  of  ships, 
a  District  Court  of  the  United  States  may  issue  a  stay-order 
restraining  proceedings   previously  begun  in   State   courts;38 


koper,  103  U.  S.  494,  26  L.  ed.  497; 
Madisbrivilie  Traction  Co.  v.  St. 
Bernard  Min.  Co.,  396  U.  S.  239, 
49  L.  ed.  462;  s.  c,  130  Fed.  794; 
Fisk  v.  Union  Pac.  R.  Co.,  10 
Blatchf.  518;  Sharon  v.  Terry,  1 
L.R.A.  572,  36  Fed.  337;  Jesup  v. 
Wabash.  St.  L.  &  P.  Ry.  Co.,  44 
Fed.  663,  664,  667;  Abeel  v.  Cul- 
berson, 56  Fed.  329:  Baltimore  & 
0.  R.  Co.  v.  Ford.  85  Fed.  170; 
Bowdoin  College  v.  Merritt,  59  Fed. 
86;  Central  Trust  Co.  v.  St.  Louis, 
A.  &  T.  Ry.  Co.,  59  Fed.  385;  Cen- 
tral Tr.  Co.  v.  Western  X.  C.  R. 
Co.,  89  Fed.  24:  Garner  v.  Second 
Nat.  Bank,  67  Fed.  833;  Fanning 
v.  Osborne,  79  Fed.  657;  Stewart  v. 
Wisconsin  Cent.  Ry.  Co.,  117  Fed. 
7S2:  Massie  v.  Buck,  C.  C.  A.,  128 
Fed.  27;  Miller  &  Lux  v.  Rickey. 
146  Fed.  574;  Gray  v.  Hudson  River 
El.  Power  Co..  382  Fed.  270:  Nelson 
v.  Camp.  C.  C.  A..  191  Fed.  712: 
supra,  §  52:  infra,  §§  2S4,  313. 
But     an      injunction      was     refused 


where,  although  a  petition  for  re- 
moval with  a  bond  had  been  filed 
in  the  State  court,  no  action  had 
been  taken  upon  them  and  no  copy 
of  the  record  had  been  filed  in  the 
Federal  court.  Coeur  A'Alene  Ry.  & 
Nav.  Co.  v.  Spalding,  C.  C.  A.,  93 
Fed.  280.  See  Missouri.  K.  &  T. 
Ry.  Co.  v.  Scott,  13  Fed.  793. 

32  Gregory  v.  Pike,  67  Fed.  835, 
836,  per  Putnam,  J. 

33  Frishman  v.  Insurance  Co.,  41 
Fed.  449;  Sinclair  v.  Pierce,  50  Fed. 
851. 

34  Holmes  v.  Dowie,  C.  C.  A.,  177 
Fed.  182. 

35  Smith  v.  Jones  Lumber  &  Mer- 
cantile Co.,  200   Fed.  647. 

36  Jesup  v.  Wahashj  St.  L.  &  P. 
Ry.  Co.,  44  Fed.  603.  664.  667;  Cen- 
tral Tr.  Co.  v.  St.  Louis,  A.  &  T. 
Ry.  Co.,  59  Fed.  3S5.  See  §  394, 
infra. 

37  Texas  &  Pac.  Ry.  Co.  v.  John- 
son. 151   V.  S.  81,  38  L.  ed.  81. 

38  in  re  Long  Island,  X.  S.  P.  «fe 


271] 


AGAINST  CRIMINAL   PBOCEEDIJCTGS. 


80 1 


that  when  a  creditor  of  a  corporation  has  begun  proceedings  in 
a  Federal  court  to  enforce  his  claim  against  the  corporation, 
the  defendant  corporation  may  be  enjoined  "from  taking  pro- 
ceedings for  its  own  dissolution,  or  for  the  appointment  of  a 
receiver  of  its  effects,  or  for  the  distribution  thereof  among  its 
stockholders  and  any  other  persons,  and  from  making  any 
distribution  or  transfer  of  any  of  its  effects."39  Where  suits 
were  pending  in  the  State  and  Federal  courts  by  the  same  plain- 
tiff against  several  insurers,  whose  liability  was  proportionate 
to  the  amount  the  insurance  of  each  bore  to  the  whole  loss, 
and  the  same  defenses  had  been  interposed  on  behalf  of  all, 
-it  was  held:  a  Federal  court  could  not  grant  an  injunction  to 
restrain  the  actions  in  the  State  courts,  as  well  as  those  in  the 
Federal  courts,  upon  a  bill  seeking  an  adjustment  of  their  lia- 
bility in  a  single  suit.40  It  has  been  held  that  a  judge  of  a  Cir- 
cuit or  District  Court  has  no  power  to  enjoin  the  enforcement 
of  a  judgment  in  a  State  court  after  an  appeal  to  the  Supreme 
Court  of  the  United  States  and  a  supersedeas;*1  and  that  can 
only  be  done  if  at  all,  by  a  Justice  of  the  Supreme  Court,42 
The  proper  remedy  is  a  contempt  proceeding.43 

§  271.  Injunctions  against  criminal  proceedings.  As 
a  general  rule,  a  court  of  equity  cannot  grant  an  in- 
junction to  forbid  the  prosecution  in  any  court,  State 
or  Federal,  of  criminal  proceedings,  whether  then  pending.1 
or     subsequently     begun;2     nor     against     a     removal     from 


F.  T.  Co..  5  Fed.  599.  See  Provi- 
dence &  X.  Y.  S.  S.  Co.  v.  Hill  Mfg. 
Co.,  109  U.  S.  378,  GOO,  27  L.  ed. 
1038,  104(i. 

33  Fisk  v.  Railroad  Co.,  10  Blatchf. 
518.  But  see  Kessler  v.  Continental 
C.  &  I.  Co.,  42  Fed.  258. 

40  Rochester  German  Ins.  Co.  v. 
Schmidt,  C.  ('.  A.,  175  Fed.  720: 
reversing  3  26   Fed.  998. 

41  Murray  v.  Overstoltz,  8  Fed. 
]]0.  .     * 

42  Ibid. 

43  Re  McKenzie,  180  U.  S.  536,  45 
L.  ed.  057;    infra,  §  428. 

§  271.  1  Lord  Montague  v.  Dud- 
man,  2  Yes.  Sr.  ■">'";•.  In  re  Sawyer, 


124  U.  S.  200,  31  L.  ed.  402;  Hark- 
rader  v.  Wadley,  172  U.  S.  148,  169, 
43  L.  ed.  399,  406;  Fitts  v.  McGhee, 
172  U.  S.  516,  517,  43  L.  ed.  535. 
536;  Davis  v.  American  Society  tor 
the  Prevention  of  Cruelty  to  Ani- 
mals. 75  X.  Y.  362:  City  of  Bairi- 
bridge  v.  Reynolds  (Georgia),  36  S. 
E.  935. 

2  llarkra.ler  v.  Wadleyj  172  V.  S. 
lis.  169,  4:;  I.,  ed.  399.  406;  Fitts 
v.  kcGhee,  172  l\  S.  516,  517.  43 
]..  cd.  5:;.">.  536;  Davis  v.  American 
Society  for  the  Prevention  of  Cruel- 
ty to  Animals,  75  X.  V.  362;  City 
of  Bainbridge  v.  I!<  \  nolds,  11 
Georgia,  758,  36  s.  E.  935. 


862 


INJUNCTIONS. 


[§  271 


office,  State3  or  Federal.4  The  present  rule  of  the  Fed- 
eral courts  upon  the  subject  is,  that,  when  a  criminal  indict- 
ment or  criminal  proceeding  is  brought  to  enforce  an  alleged 
unconstitutional  statute,  which  is  the  subject  matter  of  inquiry 
in  a  suit  already  pending  in  a  Federal  court;  the  latter  court, 
having  first  obtained  jurisdiction  over  the  subject-matter,  has 
the  right,  even  in  a  criminal  case,  to  hold  and  maintain  such 
jurisdiction,  to  the  exclusion  of  all  other  courts,  until  its  duty 
is  fully  performed;  and  that  it  may  enjoin  the  State  Attorney 
General,  or  other  prosecuting  officer,  from  instituting  a  criminal 
proceeding  in  such  a  case,  especially  when  the  injunction  is 
necessary  to  prevent  irreparable  injury  to  the  complainant's 
business  or  property ;  but  that  it  cannot  enjoin  any  investigation 
or  action  by  a  grand  jury,  nor  restrain  a  State  court  from  act- 
ing in  any  case  brought  before  it,  either  of  a  civil  or  criminal 
nature.5  The  same  rule  applies  to  criminal  proceedings  insti- 
tuted under  an  invalid  municipal  ordinance.6  It  has  been  held : 
that  where  no  irreparable  injury  is  shown,  an  injunction  may 
Issue  against  proceedings  to  impose  a  fine  for  the  non-payment 
of  a  tax,  in  order  to  prevent  a  multiplicity  of  suits.7  "A  court 
of  equity  has  no  general  power  to  enjoin  or  stay  criminal 
proceedings  unless  they  are  instituted  by  a  party  to  a  suit 
already  pending  before  it,  and  to  try  the  same  right  that  is  in 
issue  there,  or  to  prohibit  the  invasion  of  the  rights  of  prop- 


3Tn  re  Sawyer,  124  U.  S.  200,  3] 
L.  ed.  402;  People  ex  rel.  Corscad- 
den  v.  Howe,  177  N.  Y.  499. 

4  White  v.  Berry.  171  U.  S.  3GG, 
43  L.  ed.  199;  White  v.  Butler,  171 
U.  S.  379,  43  L.  ed.  204. 

5  McNeill  v.  Southern  By.  Co.,  202 
XL  S.  543,  50  L.  ed.  1142;  Missis- 
sippi Railroad  Commission  v.  Illi- 
nois Cent.  R.  B.  Co.,  203  U.  S.  335, 
51  L.  ed.  209;  Ex  parte  Young,  209 
U.  S.  123,  161-163,  52  L.  ed.  714, 
729.  730;  Hunter  v.  Wood,  209  U. 
s.  205,  52  L.  ed.  747.  See  also 
Smyth  v.  Ames,  169  U.  S.  466,  42 
L.  ed.  819;  Dobbins  v.  Los  Angeles, 
195  U.  S.  223,  49  L.  ed.  169;  Pabst 
Brewing  Co.  v.  Crenshaw,  120  Fed. 
144.     See  §  105,  supra. 


s  Dobbins  v.  Los  Angeles.  195  U. 
S.  223.  241,  49  L.  ed.  169,  177; 
Hutchinson  v.  Beckham,  C.  C.  A., 
118  Fed.  399;  Palatka  Water  Works 
v.  Palatka,  127  Fed.  161;  Glucose 
Refining  Co.  v.  Chicago,  138  Fed. 
209.  See  §§  25,  105,  supra.  In- 
junctions were  granted  when  the 
enforcement  of  the  ordinance  tended 
to  destroy  plaintiff's  business.  Jew- 
el Tea  Co.  v.  Lee's  Summit,  Mo., 
198  Fed.  532.  Contra.  Christian 
Moerlein  Brewing  Co.  v.  Hill,  166 
Fed.  140;  Moss  &  Co.  v.  McCarthy, 
191  Fed.  202,  a  bucket-shop  case. 

7  Chicago  v.  Collins,  175  111.  445, 
49  L.R.A.  40S,  67  Am.  St.  Rep.  224. 
But  see  supra,  §§  11,  12. 


§    272]  AGAINST  TRANSFER  OF  TROPERTY.  863 

erty  by  the  enforcement  of  an  unconstitutional  law."8  "This 
court,"  said  Lord  Hardwicke,  speaking  of  the  Court  of  Chan- 
cery, "has  no  jurisdiction  to  stay  proceedings  on  a  mandamus; 
nor  to  an  indictment;  nor  to  an  information;  nor  to  a  writ  of 
prohibition,  that  I  know  of."9  But  it  has  been  held  that  a 
Federal  court  may  enjoin  a  State  officer  from  an  act,  although 
an  application  is  then  pending  for  a  mandamus  to  compel  him 
to  perform  it,  and  it  was  said  that  the  injunction  would  be  a 
defense  to  the  mandamus  proceeding.10 

§  272.  Injunctions  to  restrain  the  alienation  of  property. 
Injunctions  may  be  obtained  to  prevent  the  alienation  of  prop- 
erty "where  it  would  work  irremediable  or  gross  injustice."  * 
An  injunction  will,  therefore,  issue  to  prevent  the  transfer  of 
notes,  bills  of  exchange,  and  other  documents,  whether  nego- 
tiable or  not,  whose  possession  gives  their  holder  a  presumptive 
title  to  the  rights  which  they  evidence,2  when  obtained  from  the 
plaintiff  by  the  defendant  through  duress,  fraud,  or  other  in- 
iquity ;  or  when  forged ; 3  or  when,  though  the  holder  may  have 
properly  obtained  them,  he  threatens  or  is  about  to  use  them  in 
an  inequitable  manner.4  To  restrain  a  receiver  of  a  national 
bank,  pending  a  determination  of  a  preferential  claim  to  a 
fund,  from  transmitting  the  same  to  the  treasurer  of  the  United 
States  ;  whence  it  could  not  be  recovered  by  compulsory  process.5 
An  injunction  may  be  granted  to  prevent  a  party  from  making 
vexatious  alienations  of  land  pending  a  suit  concerning  the  title 
to  the  same.6  For  it  was  said  that,  otherwise,  the  plaintiff  might 
be  put  to  the  expense  of  making  each  vendee  or  grantor  a  party 
to  the  proceedings;  and,  at  all  events,  his  title,  if  he  prevails  in 
the  suit,  may  be  embarrassed  bv  the  new  outstanding;  claims  of 

8  Brown,  J.,  in  Davis  &  Farnum  kins,  2  J.  &  W.  390:  Schermerhorn 
Mfg.  Co.  v.  Los  Angeles,  189  U.  S.  v.  L'Espenasse,  2  Dall.  360,  1  L.  ed. 
207,  217,  47  L.  ed.  778,  780.  415. 

9  Lord  Monta«ue  v.  Dudham,  2  3  Esdaile  v.  LaXauze,  1  Y.  &  C. 
Vesey  Sr.  396,  398.  394 

10  Bank  of  Kentucky  v.  Stone,  88  4  Anon..  6  Madd.  10. 

Fed.  383,  398.  5  American   Can  Co.  v.  Williams, 

§  272.     l  Story's  Eq.  Jur.,  §  953.  C.  C.  A..   149  Fed.  200. 

20sborn  v.  I'.  S.  Bank.  9  Wheat.  6  Daly     v.     Kelly.     4     Dow.     417; 

738.  845,  6  L.  ed.  2<M.  ±29;    lj,,vd  Eehliff    v.    Baldwin;     16    Ves.    '267. 

v.  Gurdon.  2  Swanst.   180;    Hood   v.  But    see   Turner   v.    Wight,   4   Beav. 

Aston,  1  Russ.  412:  Lord  (  hedwoith  40. 

v.  Edwards,  7  Ves.  46;  Reeve  v.  Per- 


864 


INJUNCTIONS. 


[§  273 


title  under  the  threatened  transfer.7  The  sale  or  transfer,8  or 
removal  beyond  the  jurisdiction  of  the  court,9  of  a  chattel,  the 
loss  of  which  could  not  be  compensated  in  damages  may  also 
be  thus  restrained ;  and  so  has  been  the  sale  of  other  personal 
property,10  including  a  patent,11  and  ore  from  a  mine  12  pending 
a  suit  affecting  the  same.  An  injunction  was  granted  forbid- 
ding the  defendants  from  buying  ore  taken  from  the  complain- 
ants mines.13  Injunctions  have  also  been  granted  at  the  suit  of 
a  part-owner  to  prevent  the  sailing  of  a  ship  until  his  share 
could  be  ascertained,  and  a  bond  given  to  secure  him  against 
loss  upon  the  voyage;14  to  prevent  the  removal  of  timber 
wrongfully  cut  down;15  and  to  prevent  the  trustees  ^f  a  dis- 
senting chapel  from  appointing  as  a  minister  a  person  not  duly 
qualified  according  to  its  constitution.16 

§  273.  Injunctions  to  prevent  waste.  An  injunction  will 
issue  to  prevent  waste,  whether  legal  or  purely  equitable.1 
TVaste  is  a  permanant  injury  to  real  estate  committed  by  a 
person  in  possession  with  a  limited  interest  in  the  same.  Legal 
waste  consists  of  such  acts  as  would  be  considered  waste  at 
common  law ;  equitable  waste,  of  such  acts  as  at  law  would  not, 
under  the  circumstances  of  the  case,  be  considered  waste,  but 
which  are  so  esteemed  in  the  view  of  a  court  of  equity,  from 
their  manifest  injury  to  the  inheritance,  though  not  inconsistent 


7  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
2  873. 

8  Gibson  v.  Lewis,  11  Phila.  (Pa.) 
476:  Lady  Arundell  v.  Phipps,  10 
V.-.  139;  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)    1872. 

9  Green  v.  Hanberry,  2  Brock. 
403;  Haly  v.  Goodson,  2  Mer.  77; 
Christie  v.  Craig,  2  Mer.  137. 

10  Bateau  v.  Bernard.  3  Blatchf. 
244;  Rigging  v.  Jenks.  3  Ware.  17: 
High  on  Tn  junctions.  (4th  ed.) 
§   1499. 

n  I'nited  Wireless  Tel.  Co.  v.  Nat. 
El.  Signaling  Co..  C.  C.  A..  19S  Fed. 
385. 

12  Montana  Min.  Co.  v.  St.  Louis 
Min.  &  Mill.  Co.  of  Montana,  C.  C. 
A..  1G8  Fed.  514. 

i3Goldlield   Consol.  Mines   Co.   v. 


Richardson,  194  Fed.  198.  But  see 
Daniels  v.  Portland  Mining  Co.,  C. 
C.  A..  202  Fed.  637. 

14  Haly  v.  Goodson,  2  Mer.  77; 
Christie  v.  Craig.  2  Mer.  137.  But 
see  Wilkinson  v.  Dobbie,  12  Blatchf. 
298. 

15  Bradley  v.  Reed.  2  Pittsb. 
(Pa.)  519:  Anon..  1  Yes.  Sr.  93; 
Daniell's  Ch.  Pr.   (2d  Am.  ed.)   1874. 

is.Milligan  v.  Mitchell,  1  M.  &  K. 
446. 

§  273.  1  Garth  v.  Cotton.  1  Dick. 
183;  Thruston  v.  Mustin.  3Cranch, 
C.  C.  335:  U.  S.  v.  Gear.  3  How. 
120,  11  L.  ed.  523:  Fletcher  v.  N. 
O.  X.  E.  R.  Co.,  20  Fed.  345:  Lanier 
v.  Alison,  31  Fed.  100;  Bispham's 
Eq.,  §§  429-432. 


§  274] 


TO  PREVENT    NUISANCE. 


so; 


with  the  legal  rights  of  the  party  committing  them.2  Such  is 
wilful  and  wanton  injury  to  land  committed  by  a  tenant  with- 
out impeachment  for  waste.3  The  interference  of  equity  in 
cases  of  this  kind  is  justified,  not  only  by  the  fear  of  irre- 
mediable injury,  but  also  because  the  tenant  for  life  or  years 
is  considered  to  stand  in  a  trust  relation  toward  the  remainder- 
man. So  anxious  is  equity  to  prevent  waste,  that  it  has  sus- 
tained a  bill  praying  such  an  injunction  filed  in  behalf  of  a 
child  in  its  mother's  womb.4  An  injunction  will  be  granted  to 
restrain  acts  in  the  nature  of  waste  committed  by  one  in  pos- 
session of  land  the  title  to  which  is  in  litigation.5  It  has  been 
held  that  an  applicant  for  the  purchase  of  government  land 
whose  claim  is  disputed  in  the  land  office  cannot  obtain  an  in- 
junction to  prevent  acts  of  waste  by  county  officers.6  Upon  a 
bill  for  an  injunction  against  waste,  a  dispute  as  to  the  title 
•  may  be  decided.7  A  bill  for  an  injunction  against  waste,  which 
is  ancillary  to  an  action  for  ejectment,  should  be  dismissed 
uppn  the  entry  of  judgment  in  favor  of  the  defendant  in  the 
action  at  common  law.8 

§  274.  Injunctions  to  prevent  the  continuance  of  a  nui- 
sance. The  interference  of  equity  to  enjoin  the  continuance 
of  a  nuisance  is  not  only  due  to  the  fact  that  the  acts  complained 
of  produce  irreparable  injury,  but  also  is  allowed  to  prevent 
the  multiplicity  of  suits  that  would  be  necessary  were  the  plain- 
tiff confined  to  his  remedy  at  common  law.1  Nuisances  are 
of  two  kinds :  those  which  are  injurious  to  the  public  at  large, 
and  those  which  are  injurious  to  the  rights  and  interests  of 
private  persons.2    The  use  of  this  remedy  to  suppress  a  public 


2Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1854,  185.5. 

3  Vane  v.  Lord  Barnard.  2  Vern. 
738;  Garth  v.  Sir  John  Hind  Cot- 
ton, 1  Dick.  183;  S.  c,  1  White  & 
Tudor's  Lead.  Cas.  in  Eq.  (Oth  ed.) 
800;  Bisham's  Eq.,  §  134. 

*Mtiagr'ave  v.  Parry,  2  Vern.  710; 
Lutte-rel's  Case,  cited  Prec.  Ch.  50; 
Scatterwood  v.  Edge,  1  Salk.  229. 

5TJ.  S.  v.  Parrott,  1  McAll.  271; 
Lanier  v.  Alison,  31   Eed.  100. 

6  McBride  v.  Pierce  County,  <■* 
Fed.   17. 

Fed-  Prac.  Vol.  I.— 55. 


7  Peck  v.  Avers  &  Lord  Tie  Co., 
C.  C.  A.,  116  Fed.  273;  Douglas 
Co.  v.  Tennessee  Luml)er  Mfg.  Co., 
C.  C.  A..  IIS   Fed.  438. 

8  Wo>t  v.  East  Coast  Cedar  Co., 
C.  C.  A.,  113  Fed.  742. 

§  274.  1  Fishmongers'  Co.  v.  East 
India  Co.,  1  Dick.  103  •.  Atty.  Gen. 
v.  Xichol,  16  Ves.  338,  343. 

2Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1857. 


866  injunctions.  [§274 

nuisance  is  of  very  ancient  date.3  It  was  applicable  in  England, 
both  to  nuisances  strictly  so  called  and  to  purprestures.  "By 
purprestwe  is  meant,  in  its  present  acceptation,  an  encroach- 
ment upon  the  Crown,  either  upon  part  of  the  demesne  lands, 
or  upon  the  high  roads,  rivers,  ports,  or  streets ;  and  the  differ- 
ence betwen  purprestures  and  nuisances  consists  in  this,  that 
where  the  jus  privatum  of  the  Crown  is  invaded  it  is  a  purpres- 
ture,  but  where  the  jus  publicum  is  violated  it  is  a  nuisance. 
In  cases  of  purpresture  the  remedy  is  either  by  information  for 
an  intrusion  at  the  common  law,  or  by  information  in  equity 
at  the  suit  of  the  attorney-general.  The  consequence  of  a  judg- 
ment at  common  law  being  the  abatement  of  the  erection  or 
grievance  complained  of,  whether  it  is  or  is  not  a  nuisance, 
whilst  upon  an  information  in  equity,  where  the  trespass  does 
not  produce  any  public  injury,  the  court  may  direct  an  inquiry 
whether  it  is  most  beneficial  to  the  Crown  to  abate  the  purpres- 
ture, or  to  suffer  the  erection  to  remain  and  be  assessed  as  a 
part  of  the  legal  revenue."  4  Cases  of  public  nuisance  may  be 
enjoined  at  the  suit  of  the  attorney-general,  who  in  England 
sues  by  information.5  It  has  been  held  that  the  United  States 
may  sue  to  enjoin  acts  in  pursuance  of  an  unlawful  conspiracy 
forcibly  to  obstruct  interstate  commerce  and  the  transport  of 
the  mails;  6  and  to  enjoin  a  nuisance  which  threatens  injury  to 
works  in  aid  of  commerce  constructed  under  the  authority  of 
the  national  government.7  A  public  nuisance  may  be  restrained 
at  the  suit  of  any  who  have  suffered  by  it  special  damage  dis- 
tinct from  that  which  it  causes  to  the  public  at  large ;  but  not 
otherwise.8  A  bill,  for  example,  may  be  filed  by  a  State  to  en- 
join the  erection  of  a  bridge  across  a  navigable  stream  which 

3  Ibid.  7  U.  S.  v.  Miss.  &  R.  R.  Boom  Co., 

4Daniell's  Ch.  Pr.    (2d  Am.  ed.)  3  Fed.  548;  s.  c,  1  McCrary,  601. 
1857,  citing  Atty.  Gen.  v.  Richards,  8  Baines     v.     Baker,     Amb.     158; 
2  Anst.  603:  Atty.  Gen.  v.  Johnson,  Miss.    &    Mo.    R.    Co.    v.    Ward,    2 
2   J.    WiL    87.      See    also    U.    S.   v.  Black.  4S5.   17   L.  ed.  311;    George- 
Gear,  3  How.  120,  11  L.  ed.  523.  town   v.   Alexandria   Canal    Co.,   12 

5Daniell's   Ch.  Pr.    (2d  Am.   ed.)  Pet.    91,    9    L.    ed.    1012;    Irwin    v. 

1S58.  Dixion,    9    How.    10,    13    L.    ed.   25; 

6  In  re  Debs.  158  U.  S.  581,  39  L.  Spooner    v.    McConnell,    1    McLean, 

ed.   1101;   In  re  Lennon,   166  U.  S.  337:    Works  v.   Junction   R.   Co.,  5 

548,  41  L.  ed.  1110.  McLean,  425. 


§  274] 


TO   PREVENT    NUISANCE. 


> '  •■  T 


will  injure  her  commerce;9  but  not  by  a  city  for  a  similar 
reason,10  unless  its  property,  for  example,  a  wharf,  is  thereby 
injured.11  A  private  nuisance  is  an  act,  or  series  of  acts,  un- 
accompanied by  an  act  of  trespass,  which  causes  a  substantial 
injury  to  a  person's  property,  health,  or  comfort.  Tt  will 
always  be  restrained  when  it  would  otherwise  cause  an  irre- 
parable injury  or  a  multiplicity  of  suits.12  It  includes  the 
blocking  of  the  entrance  to  a  railroad  station  by  hackmen,13  or 
of  a  railroad  siding  by  wagons.14  "It  used  to  be  thought,  that 
if  a  man  knew  there  was  a  nuisance,  and  went  and  lived  near 
it,  he  could  not  recover,  because,  it  was  said,  it  is  he  that  goes  to 
the  nuisance,  and  not  the  nuisance  to  him.  This,  however,  is 
not  the  law  now.'  15  Formerly,  an  injunction  was  rarely  issued 
to  restrain  a  nuisance  until  the  plaintiff's  right  of  action  had 
been  established  at  law ;  "but  now  a  suit  at  law  is  no  longer  a 
necessary  preliminary,  and  the  right  to  an  injunction,  in  a 
proper  case,  in  England  and  most  of  the  States,  is  just  as 
fixed  and  certain  as  the  right  to  any  other  provisional 
remedy."  16  Formerly,  it  was  a  fundamental  objection  to  an 
order  for  an  injunction  to  restrain  a  nuisance  to  land  when  the 
legal  title  was  disputed,  that  the  order  contained  no  provision 
for  putting  the  question  in  a  course  of  legal  investigation.17 


9  Pennsylvania  v.  W.  &  B.  B.  Co., 
13  How.  518,  14  L.  ed.  249. 

10  Georgetown  v.  Alexandria  Ca- 
nal Co.,  12  Pet.  91,  9  L.  ed.  1012. 

USt.  Louis  v.  Knapp  Co.,  104 
U.  S.  658,  26  L.  ed.  883.  A  rail- 
road company  cannot  have  an  in- 
junction against  the  keeping  of  a 
saloon  where  its  workmen  buy  li- 
quors. Northern  Pac.  R.  Co.  v. 
Whalen,  149  U.  S.  157,  37  L.  ed. 
686. 

I2  0sburne  v.  Barter  &  Goddins, 
anno.  26  Eliz.,  Choyce  Cas.  in  Ch. 
(ed.  of*  1870),  p.  176;  Parker  v. 
YVinnipbeogee  Lake  C.  &  W.  Co.,  2 
Black,  545,  17  L.  ed.  333;  Woodruff 
v.  North  Bloom  field  G.  M.  Co.,  18 
Fed.  753;  St.  Helen's  S.  Co.  v.  Tip- 
ping, 11  H.  L.  C.  642. 


13  Donovan  v.  Pennsylvania  Co., 
199  U.  S.  279,  50  L.  ed.  192. 

14  Robinson  v.  Baltimore  &  O.  R. 
Co.,  C.  C.  A.,  129  Fed.  753. 

15  Byles,  J.,  in  Hole  v.  Barlow. 
4  C.  B.  (N.  S.)  334.  See  St.  Helen's 
S.  Co.  v.  Tipping,  11  H.  L.  C.  642 : 

.  Campbell  v.  Seaman,  63  N.  Y.  568, 
20  Am.  Rep.  567. 

16  Judge  Earl  in  Campbell  v.  Sea- 
man, 63  N.  Y.  568,  582.  See,  how- 
ever, Irwin  v.  Dixion,  9  How.  10, 
13  L.  ed.  25;  Murtagh  v.  Philadel- 
phia, 1  Weekly  Notes  of  Cases,  37. 
But  see  McBride  v.  Board  of 
Com'rs  of  Pierce  County,  44  Fed.  17. 

17  Harman  v.  Jones,  Cr.  &  Ph. 
299;  Sanxter  v.  Foster,  Cr.  &  Ph. 
302. 


SOS 


INJUNCTIONS. 


[J  275 


§  275.  Injunctions  to  restrain  trespass.  Injunctions  to 
restrain  trespass  are  of  comparatively  recent  origin.  The  first 
that  is  to  be  found  in  the  books  was  granted  by  Lord  Thur- 
low.1  They  are  only  granted  when  the  trespass  is  destructive 
or  continuous.  The  rule  upon  the  subject  has  been  thus  stated 
by  Vice-Chancellor  Kindersley:  "Where,  therefore,  the  plain- 
tiff is  in  possession  and  the  person  doing  the  acts  complained  of 
is  an  utter  stranger,  not  claiming  under  color  of  right,  the 
tendency  of  the  court  is  not  to  grant  an  injunction,  \mless  there 
are  special  circumstances,  but  to  leave  the  plaintiff  to  his 
remedy  at  law;  though,  where  the  acts  tend  to  the  destruction 
of  the  estate,  the  court  will  grant  it.2  But  where  the  party  in 
possession  seeks  to  restrain  one  who  claims  by  adverse  title, 
then  the  tendency  will  be  to  grant  the  injunction,  at  least  where 
the  acts  done  either  did  or  might  tend  to  the  destruction  of  the 
estate." 3  The  destruction  of  credit  by  an  illegal  seizure  of 
one's  stock  in  trade,4  and  the  injury  to  a  farm  done  by  the 
illegal  taking  of  all  the  stock  and  tools  upon  it,  have  been  held 
instances  of  such  irreparable  injury.5  An  attempt  by  a  rail- 
road company  to  build  its  road  upon  private  property  without 
payment  of  compensation,  may  be  thus  prevented.6     It  is  not 


§  275.  1  Flamang's  Case,  cited 
by  Lord  Eldon  in  Hanson  v.  Gar- 
diner, 7  Ves.  305.  For  injunctions 
against  the  collection  of  an  illegal 
tax.  see  supra,  §  79. 

2  See  Jerome  v.  Ross,  7  J.  Ch. 
(X.  Y.)  315;  Troy  &  B.  E.  Co.  v. 
Boston,  H.  T.  &  W.  Ry.  Co.,  80 
X.  Y.  107:  Van  Xorden  v.  Morton, 
Oil  U.  S.  378,  25  L.  ed.  453;  Erhart 
v.  Boaro,  113  U.  S.  537,  28  L..  ed. 
1110;  St.  Louis  M.  &  M.  Co.  v.  Mon- 
tana M.  Co.,  58  Fed.  129. 

3  Lowndes  v.  Bettle,  33  L.  J.  Ch, 
4GL  An  injunction  may  be  granted 
against  the  cutting  and  removal  of 
growing  trees  regardless  of  the  solv- 
ency of  the  defendant.  Bettes  v. 
Brower.  184  Fed.  342.  Where  an 
electric  railway  company  was  de- 
stroying, by  its  return  current,  the 
pipes   of   a   water   company  by  elec- 


trolysis; it  was  held  that  the  court 
had  no  power  to  enjoin  the  use  by 
the  former  of  any  particular  system 
of  circuit  or  negative  return,  al- 
though it  might  be  shown  that  the 
system  in  use  necessarily  resulted 
in  the  injury  of  which  complaint 
was  made,  but  that  all  which  the 
court  could  do  was  to  restrain  the 
continuance  of  the  injury,  leaving 
the  motions  to  be  adopted  to  pre- 
vent the  same  entirely  to  the  discre- 
tion of  the  defendant.  Teoria  Wa; 
terworks  Co.  v.  Peoria  Ry.  Co.,  181 
Fed.  990.  See  High  on  Injunctions, 
(4th  ed.)    §§  G97-722b. 

4  Watson  v.  Sutherland,.  5  Wall. 
74,  18  L,  ed.  580;  fropper  v.  Co- 
burn.  2  Curt.  40.5:  North  v.  Peters, 
138  !".  S.  271,  34  L.  ed.  936. 

5  Breeden  v.  Lee,  2  Hughes,  484. 
6X.  P.  R.  Co.  v.  Burlington  &  M. 


§  275] 


AGAIN  ST  TRESPASS. 


t>.;u 


certain,  whether  the  fact  that  a  person  who  threatens  to  commit 
a  wrong  is  insolvent  and  unable  to  pay  any  damages  which 
could  be  recovered  at  law,  is  in  itself  a  sufficient  ground  for 
the  interference  of  equity  by  injunction ;  but  the  weight  of 
authority  seems  to  hold  that  it  is.7  It  was  held,  where  there 
was  a  dispute  as  to  the  possession  and  as  to  right  to  the  pos- 
session of  a  railroad  track,  that  the  court  would  not  interfere 
by  injunction  to  assist  in  "a  scramble  for  possession." 8  A 
number  of  cases  decided  in  the  courts  of  different  States  hold 
that  an  injunction  cannot  be  obtained  to  restrain  an  illegal 
arrest;  since  it  is  said  that  the  writ  of  habeas  corpus  followed 
by  an  action  for  damages  always  affords  an  adequate  remedy 
for  any  injury  resulting  therefrom;9  but  if  the  result  of  the 
arrests  would  be  an  irreparable  injury  to  the  business  of  the 
complainant,  an  injunction  might  perhaps  be  issued.10  In  one 
case  the  court  directed:  that  an  injunction  to  restrain  trespass 


R.  Co.,  2  McCrary,  203 :  s.  a,  4  Fed. 
298.  See  also  Mo.  K.  &  T.  Ry.  Co. 
v.  T.  &  St.  L.  Ry.  Co.,  10  Fed.  497. 
But  see  D.  M.  Osborne  Co.  v.  Mo. 
Pac.  R.  Co.,  347  U.  S.  248,  37  L. 
ed.  155;  Burlington  G.  L.  Co.  v. 
Burlington.  C.  R.  &  N.  Co.,  165  U. 
S.  370,  41  L.  ed.  749. 

'  Connolly  v.  Belt,  5  Craneh  C.  C. 
405;  M'Elroy  v.  Kansas  City,  21 
Fed.  257,  262;  Coeur  d'Alene  Cons. 
&  Mining  Co.  v.  Miners'  Union  of 
Wardner,  19  L.R.A.  382,  51  Fed. 
260;  Agar  v.  Regent's  Canal  Co., 
c*ited  in  1  Swanst.  250:  Mnsselman 
v.  Marquis,  1  Bush  (Ky.)  463,  89 
Am.  Dec.  637:  Hicks  v.  Compton,  18 
Cal.  200;  Britton  v.  Hill.  ]2  C.  E. 
Green  (N.  J.),  389;  Lloyd  v.  Heath, 
Busb.  Eq.  (N.  C.)  39:  Cause  v.  Per- 
kins,  3  Jones'  Eq.  ( X.  C.)  177,  69 
Am.  Dec.  728;  dies.  &  O.  R.  Co.  v. 
Patton,  5  W.  Va.  234:  Bisham's  Eq., 
§  436;.  Caro  v.  Met.  El.  Ry.  Co..  46 
N.  Y.  Super.  Ct.  138.  Contra,  Heil- 
man  v.  Union  Canal  Co.,  37  Pa.  St. 
100;  Thompson  v.  Williams,  1  Jones' 
Eq.    (N.  C.)    176;   Nessle  v.  Reese, 


19  Abb.  Pr.    (X.  Y.)    240;   High  on 
Injunctions.  §  18. 

8  St.  Louis,  K.  C.  &  C.  Ry.  Co. 
v.  Dewees,  23  Fed.  691.  See  Latham 
v.  Northern  Pac.  R.  Co.,  45  Fed.  721. 

9  Cohen  v.  Com'rs  of  Goldsboro, 
77  N.  C.  2;  Burnett  v.  Craig.  30 
Ala.  135.  68  Am.  Dec.  115;  Butch 
v.  Cavanaugh,  12  Abb.  Pr.  (X.  S.) 
(X.  Y.)  410:  Davis  v.  Am.  Soc.  for 
P.  of  C.  to  A.,  6  Daly  (X.  Y.),  SI  ; 
s.  c,  on  appeal,  .75  X.  Y.  362.  See 
also  Yick  Wo  v.  Crowley,  26  Fed. 
207:  Electric  X.  &  M.  T.  Co..  7a 
Fed.  698:  Bums  v.  McAdoo,  113 
App.  Div.  165;  Eden  Musee  Am.  Co. 
v.   Bingham,   325  App.  Div.  780. 

10  Dobbins  v.  Los  Angeles.  195  U. 
S.  223.  4!)  L.  ed.  169;  Ex  parte 
Young.  209  U.  S.  123.  52  L.  ed.  714; 
Hunter  v.  Wood.  209  U.  S.  205,  52 
L.  ed.  747:  Louisiana  S.  L.  Co.  v. 
Kit/.patrick.  3  Woods,  222;  Dins- 
more  v.  New  York  B.  of  P.,  12  Abb. 
X.  Cas.  (X.  V.)  4:;ti:  Manhattan  I. 
W.  Co.  v.  l-reiuli.  12  Abb.  N.  Cas. 
(N.  Y.)    446;   supra,   §   79. 


870 


INJUNCTIONS. 


[§  276 


be  dissolved,  unless  an  action  of  ejectment  to  try  a  claim  of 
title  by  a  defendant  in  possession  is  begun  within  ten  days,  and 
unless  issues  raised  by  defendants  are  framed  for  trial  by  jury 
within  twenty  days.11 

§  276.  Injunctions  against  strikers.  Injunctions  have 
been  granted  forbidding  strikers  from  trespass 1 *  and  acts  of 
violence*  against  their  employer's  property;  and  from  acts  of 
violence,3  or  express  or  implied  threats  of  violence,4  against 
persons  employed  to  take  their  places ;  and  even  forbidding  the 
gathering  or  marching  in  procession  upon  the  highway  near  the 
employer's  premises.5  The  weight  of  authority  denies  the  right 
to  grant  injunctions  against  picketing,  by  stationing  watchers 
outside  to  request  travelers  on  the  highway  not  to  buy  of  the 
employer  or  not  to  enter  his  service.6     A  few  extraordinary 


"  N.  J.  &  N.  C.  Land  &  Lumber 
Co.  v.  Gardner-Lacy  Lumber  Co., 
113  Fed.  395. 

§  276.  1  Illinois  Cent.  R.  Co.  v. 
International  Ass'n.  of  Machinists, 
190  Fed.  910. 

2  Consol.  S.  &  W.  Co.  v.  Murray, 
80  Fed.  811 ;  Gulf  Bag  Co.  v.  Sutt- 
ner,  124  Fed.  467. 

3  Consol.  S.  &  W.  Co.  v.  Murray, 
80  Fed.  811;  Hamilton-Brown  Shoe 
Co.  v.  Saxey,  131  Mo.  212,  52  Am. 
St.  Rep.  622;  s.  C,  32  S.  W.  1106; 
Am.  S.  &  W.  Co.  v.  Wire  Drawers' 
&  D.  M.  Unions.  90  Fed.  608; 
Springfield  S.  Co.  v.  Riley,  L.  R.  6 
Eq.  551 ;  Southern  Ry.  Co.  v.  Ma- 
chinists' Local  Union,  111  Fed.  49; 
Reinecke  Coal  Min.  Co.  v.  Wood,  112 
Fed.  477:  Atchison.  T.  &  S.  F.  Ry. 
Co.  v.  Gee,  140  Fed.  153:  Master 
Horseshoers'  Protective  Ass'n  v. 
Quinlivan.  83  App.  Div.  (X.  Y.), 
45!).  But  see  Richter  v.  Journey- 
men T.  Union.  24  Ohio  L.  Bull.  189. 

4  Ibid.;  Goldfield  Consol.  Mines 
Co.  v.  Goldfield  Miners'  Union  No. 
220,  159  Fed.  500;  Aluminum  Cast- 
ings Co.  v.  Local  No.  84  of  Inter- 
national  Molders'   Union   of   North 


America,  197  Fed.  221.  See  High 
on  "Injunctions,"  §  1415d. 

5Mackall  v.  Ratchford,  82  Fed. 
41:  Consol.  S.  &  W.  Co.  v.  Murray, 
SO  Fed.  811;  Am.  S.  &  W.  Co.  v. 
Wire  Drawers'  &  D.  M.  Unions,  90 
Fed.  608;  Sherry  v.  Perkins,  147 
Mass.  212,  9  Am.  St.  Rep.  689; 
Bruce  Bros.  v.  Evans,  5  Pa.  Co.  Ct. 
R.  163;  Goldfield  Consol.  Mines  Co. 
v.  Goldfield  Miners'  Union  No.  220, 
159  Fed.  500;  Aluminum  Castings 
Co.  v.  Local  No.  84  of  International 
Molders'  Union  of  North  America, 
197  Fed.  221. 

6  Pope  Motor  Car  Co.  v.  Keegan, 
150  Fed.  148;  Allis-Chalmers  Cd. 
v.  Iron  Moulder's  Union  No.  125,  C. 
C.  A.,  166  Fed.  45,  modifying  150 
Fed.  155:  Atkins  v.  W.  &  A.  Fletch- 
er Co.,  65  N.  J.  Eq.  658,  55  Atl. 
1074;  W.  &  A.  Fletcher  Co.  v.  In- 
ternational Association  of  Machin- 
ists, N.  J.  Eq.  55  Atl.  1077 ;  cf. 
Charnock  v.  Court,  [1899]  2  Ch.  35; 
Trollupe  v.  London  B.  T.  Fed'n,  72 
Law  Times,  342;  Lyons  v.  Wilkins. 
[1899]  1  Ch.  255.  Contra,  Vegelahn 
v.  Gunther,  167  Mass.  92,  35  L.R.A. 
722,  57  Am.  St.  Rep.  443;  s.  c,  44 


§  276] 


AGAINST  STItlKEKS. 


871 


decisions  have  gone  so  far  as  to  enjoin  striking7  and  boycott- 
ing.8 It  has  been  held  that  a  court  should  not  enjoin  laborers 
from  striking  nor  from   advising  other  laborers  to  join   in   a 


N.  E.  1077,  with  a  strong  dissent  by 
Field,  C.  J.,  and  Holmes,  J.;  Am.  S. 
&  W.  Co.  v.  Wire  Drawers'  &  D. 
M.  Unions,  90  Fed.  608;  Southern 
Ry.  Co.  v.  Machinists'  Local  Union, 
111  Fed.  49;  Union  Pac.  R.  Co.  v. 
Ruef,  120  Fed.  102,  129;  Knudson 
v.  Benn,  123  Fed.  636;  Goldberg, 
Bowen  &  Co.  v.  Stablemans'  Union, 
8  L.R.A.(N.S.)  460,  117  Am.  St. 
Rep.  145,  86  Pac.  806.  See  Allen  v. 
Flood,  [1898]  Appeal  Cases,  1. 
High  on  "Injunctions,"  §  1415c.  ''In- 
terference by  Combinations  of  Labor 
with  Employer's  Business"  by  Geoff- 
rey Konta  of  the  New  York  bar  in 
Columbia  Law  Rev.,  X.,  p.  652. 

7  Farmers'  L.  &  Tr.  Co.  v.  N.  Pac. 
R.  Co.,  25  L.R.A.  414,  note,  4  Inters, 
Com.  Rep.  774,  note  60  Fed.  803,  per 
Jenkins,  J.,  reversed  in  Arthur  v. 
Oakes,  C.  C.  A.,  03  Fed.  310.  In 
Delaware  L.  &  W.  P.  Co.  v.  Switch- 
ers' Union,  51  Fed.  260;  Wabash  R. 
Co.  v.  Hannahan,  121  Fed.  563,  pre- 
liminary injunctions  to  this  effect 
were  dissolved.  But  see  §  283,  in- 
fra, Cf.  In  re  Lennoon,  166  U.  S. 
548,  41  L.  ed.  1110;  U.  S.  v. 
Cassidy,  67  Fed.  698;  U.  S.  v. 
Weber,  114  Fed.  950,  where  the 
strikers  were  employees  of  a  receiv- 
er; Pickett  v.  Walsh1,  6  L.RA. 
(N.S.)  1067,  116  Am.  St.  Rep.  272, 
78  N.  E.  753,  7  Ann.  Cas.  638;  In- 
fra, §  311.  That  an  injunction  should 
not  issue  against  a  strike  was  held 
in  Aluminum  Castings  Co.  v.  Local 
No.  84,  I.  M.  U.,  197  Fed.  221. 

8  Casey  v.  Cincinnati  Typ.  Union. 
45  Fed.  135;  Thomas  v.  Cincinnati, 
N.  O.  &  T.  Ry.  Co.,  62  Fed.  803; 
Oxley  Stave  Co.  v.  Coopers'  I.  Union, 


C.  C.  A.,  72  Fed.  695;  s.  c,  Hopkins 
v.    Oxley    Stave    Co.,    83    Fed.    912, 
Caldwell,  J.,  dissenting;  Barr  v.  Es- 
sex   Trades    Council.    53    N.    J.    Eq. 
101;   s.  c,  30  Atl.  881;  Beck  v.  Ry. 
Teamsters'    Pr.    Union,    118    Mich. 
497  ;  S.  c,  43  L.R.A.  406,  with  note ; 
Carroll  v.  Ches.  &  O.  Coal  Agency 
Co.,  C.  C.  A.,  124  Fed.  305;  S.  c,  as 
Ches.  &  O.  Coal  Agency  Co.  v.  Fire 
Creek   C.   &   C.   Co.,   119   Fed.   942: 
Loewe   v.    California   State   Federa- 
tion of  Labor,  139  Fed.  71  ;  Huttig 
Sash  &  Door  Co.  v.  Fuelle,  143  Fed. 
363;  Seattle  Brewing  &  Malting  Co. 
v.  Hansen,  144  Fed.  1011;  Jensen  v. 
Cooks'  &  Waiters'  Union  of  Seattle 
(Wash.    1905),   81    Pac.    1069.      Cf. 
Hagan  v.  Blindell,  C.  C.  A.,  56  Fed. 
696;   Arthur  v.  Oakes.  C.  C.  A.,  03 
Fed.    310:    Elder   v.    Whitesides,    72 
Fed.  724;   Davis  v.  Zimmerman,  91 
Hun     (N.    Y.),    489;    Sinsheimer    v. 
United  G.  W.  of  Am.,  77   Hun    (X. 
Y.),  215;  U4  S.  v.  Cassidy,  67  Fed. 
698;    Graham  v.  St.  Charles  St.  R. 
Co.,  47  La.  Ann.  215:  Quinn  v.  Lea- 
thern    [1901],    Appeal    Cases.    495; 
Am.   Law   Review,   Nov.    1899.      See 
Loewe  v.  Law] or,  208  U.  S.  274.  52 
L.  ed.  488.   Contra.  Cray  v.  Building 
Trades    Council,    91    Minn.    171.    03 
L.i;.A.    753,   103   Am.   St.   Rep.   477. 
!)7  X.  W.  633.  1  Ann.  Cas.  172:  Nat. 
Protective    Ass'n    v.    dimming,    53 
App.    Div.    (N.    Y.)    227:    Marx    & 
ITaas  Jeans  Clothing  Co.  v.  Watson 
(Mo),  56  L.R.A.  951.     Cf.  Reynolds 
v.   Everett.   144   X.  Y.  1S9:    Allen   v. 
Flood,   [1898]   Appeal   Cases,   1;    Mo 
gul  S.  S.  Co.  v.  McGregor,  23  <v>.  B. 
D.  598;   s.  c.   [1892]    Appeal  Cases, 
25:    Maver    v.    Journeymen    S.    C. 


S72 


INJUNCTIONS. 


[§   276 


strike ; 9  but  that  it  may  enjoin  them  from  combining  to  quit 
work  in  order  to  cripple  their  employer's  property  and  embarrass 
his  business ; 10  and  from  refusing  to  handle  or  operate  cars  while 
remaining  in  the  employ  of  a  railroad  company.11  There 
has  been  said  to  be  more  justification  for  an  injunction 
against  a  sympathetic  strike  or  secondary  boycott,  than 
against  strikers  directly  injured  by  the  acts  which  they  seek  to 
prevent.18  An  injunction  against  intimidation  by  strikers  was 
granted,  at  the  suit  of  a  contractor  with  the  party  against  whom 
the  strike  was  instituted,  when  the  citizenship  of  the  latter 
would  not  have  sustained  the  jurisdiction ; 13  but  one  was  denied 
in  a  suit  by  the  trustee  of  an  unmatured  mortgage  upon  the 
employer's  property,  when  the  mortgagor  was  not  joined  and 
had  not  refused  to  sue.14  The  importance  of  this  class  of  in- 
junctions is  very  great.  For  the  acts  forbidden  are  in  most 
cases  offenses  punished  by  the  criminal  law,  those  charged  with 
which  would,  in  the  absence  of  an  injunction,  have  the  right 
to  a  trial  by  jury;  and  the  object  of  an  injunction  is  to  deprive 
them  of  that  right.15     This  co-called  "government  by  injunc- 


A8s'n,  47  X.  J.  Eq.  519;  Bohn  Mfg. 
Co.  v.  Hollis,  54  Minn.  223;  s.  c,  55 
X.  W.  1119;  Sweeny  v.  Torrence,  11 
Pa.  Co.  Ct.  R.  497;  Francis  v.  Flinn, 
118  U.  S.  385,  30  L.  ed.  165;  Worth- 
ington  v.  Waring,  157  Mass.  421; 
Pr.  &  Pub.  Co.  v.  Howell,  26  Ore. 
527;  s.  c,  28  L.R.A.  464;  De  Pear  v. 
Cook's  Union,  27  Chi.  Leg.  X.  387; 
Gompers  v.  Bucks  Stove  &  Range 
Co.,  221  U.  S.  418,  55  L.  ed.  797.  See 
High  on  "Injunctions,"  §  1415e. 

9  Arthur  v.  Oakes,  C.  C.  A.,  25 
L.R.A.  414,  4  Inters.  Com.  Rep.  744, 
63  Fed.  310;  Del.  &  W.  R.  Co.  v. 
Switchman's  Union,  158  Fed.  541, 
Contra,  A.  R.  Barnes  &  Co.  v. 
Berry,  156  Fed.  72. 

10  Arthur  v.  Oakes,  C.  C.  A.,  25 
L.R.A.  414,  4  Inters.  Com.  Rep.  744, 
63  Fed.  310,  324,  329,  a  decision  on 
this  point  of  very  doubtful  author- 
ity: Hitchman  Coal  &  Coke  Co.  v. 
Mitchell,  202  Fed.  512.     Cf.  Allen  v. 


Flood  [1898],  Appeal  Cases,  1;  su- 
pra, §  275. 

11  So.  Cal.  Ry.  Co.  v.  Rutherford, 
62  Fed.  796;  In  re  Lennon,  16G  U. 
S.  548,  555,  41  L.  ed.  1110,  1113. 

12  See  Geoffrey  Konta  in  Columbia 
Law  Rev.,  X.  p.  652,  approving  Sili  la  n  ; 

v.  Ladies'  Waist  Makers'  Union,  124 
X.  Y.  Supp.  289 ;  Irving  v.  Joint  Dist. 
Council  of  Xew  York  and  Vicinity 
of  United  Brotherhood  of  Carpen- 
ters, 180  Fed.  896;  Tunstall  v. 
Stearns  Coal  Co.,  C.  C.  A.,  192  Fed. 
808. 

13  Carroll  v.  Ches.  &  O.  Coal  Agen- 
cy Co.,  C.  C.  A.,  124  Fed.  305;  s.  c. 
as  Ches.  &  O.  Coal  Agency  Co.  v.  Fire 
Creek  C.  &  C.  Co.,  119  Fed.  942. 

14  Illinois  Trust  &  Sav.  Bank  v. 
Minton,  120  Fed.  187. 

15  In  re  Debs,  158  U.  S.  564,  581, 
582,  39  L.  ed.  1092,  1101,  1102;  U. 
S.  v.  Debs,  64  Fed.  724;  Reynolds 
v.  Davis,   198  Mass.  294,  17  L.R.A. 


§  277] 


IX    TATEXT    CASES. 


>:;; 


tion"  has  been  sharply  •criticized.  The  jurisdiction  of  courts 
of  equity  to  entertain  a  suit  for  such  an  injunction  has  been 
sustained  by  the  Supreme  Court  of  the  United  States; 16  but  the 
propriety  of  those  which  have  been  issued  has  not  yet  been 
decided  by  that  tribunal.17 

§  277.  Injunctions  to  restrain  the  infringement  of  pat- 
ents. Injunctions  to  restrain  the  infringement  of  patents  and 
copyrights  are  of  ancient  use  in  equity.  They  are  founded  upon 
both  the  irreparable  injury  that  would  otherwise  be  caused  to 
the  complainant,  and  the  desire  of  the  court  to  prevent  a  multi- 
plicity of  suits.1  This  inherent  power  of  the  courts  is  confirmed 
in  the  United  States  by  statute.  The  provision  of  the  Revised 
Statutes  authorizing  injunctions  to  restrain  the  infringement  of 
patents  is  as  follows:  "The  several  courts  vested  with  jurisdic- 
tion of  cases  arising  under  the  patent  laws  shall  have  power  to 
grant  injunctions  according  to  the  course  and  principles  of 
courts  of  equity,  to  prevent  the  violation  of  any  right  secured 
by  a  patent,  upon  such  terms  as  the  court  may  deem  reasonable ; 
and  upon  a  decree  being  rendered  in  any  such  case  for  an  in- 
fringement, the  complainant  shall  be  entitled  to  recover,  in  addi- 
tion to  the  profits  to  be  accounted  for  by  the  defendant,  the  dam- 
ages the  complainant  has  sustained  thereby;  and  the  court  shall 
assess  the  same  or  cause  the  same  to  be  assessed  under  its  direc- 
tion. And  the  court  shall  have  the  same  power  to  increase  such 
damages,  in  its  discretion,  as  is  given  to  increase  damages  found 
by  verdicts  in  actions  in  the  nature  of  actions  of  trespass  upon 
the  case."2  It  seems  to  have  been  formerly  the  opinion  that 
courts  of  equity  would  not  interfere  to  protect  a  patent  right 
by  injunction,  until  the  right  has  been  established  at  law;  but 


(N.S.)  162,  84  N.  E.  457.  See  U.  S. 
v.  Cassidy,  67  Fed.  698,  783,  for  a 
refusal  of  a  jury  to  convict  in  a 
similar  case,  upon  much  stronger 
evidence  than  that  offered  against 
Debs.       * 

16  In  re  Debs.,  15S  U.  S.  .564.  581, 
39  L.  ed.  ]092,  1101  :  In  re  Lennon, 
166  U.  S.  54S,  41  L.  ed.  1110. 

17  But  see  In  re  Debs,  158  U.  S. 


564,  581;  592.  597,  39  L.  ed.  1092. 
1101,  1105.  1107. 

§  277.  1  Eden  on  Injunctions, 
chs.  xii  and  xiii;  Daniell's  Ch.  Pr. 
(5th  Am.  ed.)  1642-1648;  Hogg  v. 
Kirby,  8  Ves.  215:  \\  ilkins  v.  .\ik- 
in.  17  Ves.  422.  See  High  on  In- 
junctions §£   934-952. 

2  1'.  S.  K.  S..  §  4921.  See  supm. 
§§  146,  175  and  29  St.  at  L.  695; 
cited  supra,  §  61. 


874 


INJUNCTIONS. 


[§  277 


since  Lord  Eldon's  time  their  jurisdiction  thus  to  interfere, 
when  the  title  of  a  complainant  is  established  by  the  preponder- 
ance of  evidence,  has  been  undisputed.3  Before  a  preliminary 
injunction  will  be  granted  against  the  alleged  infringement  of  a 
patent,  it  should  be  shown:  that  the  plaintiff's  right  to  the  ex- 
clusive use  of  the  invention  is  clear,4  and  usually  that  it  has 
been  established  by  a  prior  adjudication5  or  by  public  acquies- 
cence ;  6  and  that  there  is  no  room  for  reasonable  doubt  as  to  the 
infringement.7  Before  the  creation  of  the  Circuit  Courts  of 
Appeal,  the  rule  was  that  if  previous  adjudications  in  the  same 
or  other  Circuit  Courts  had  established  the  validity  of  the  plain- 
tiff's patent,  a  preliminary  injunction  would  be  granted  him 
almost  as  of  course  in  a  subsequent  suit,  to  prevent  the  infringe- 
ment of  the  same  by  a  person  not  a  party  to  the  former  proceed- 
ing 8  unless  the  latter  could  produce  new  evidence  that  was  con- 


3  Universities  of  Oxford  and  Cam- 
bridge v.  Richardson,  6  Ves.  689; 
Hill  v.  Thompson,  3  Meriv.  622; 
Pierpont  v.  Fowle,  2  W.  &  M.  23; 
Motte  v.  Bennett,  2  Fisher,  642; 
Kerr  on  Injunctions,  272. 

4  Welsbach  Lt.  Co.  v.  Cosmopol- 
itan Inc.  G.  L.  Co.,  100  Fed.  648; 
Bradley  &  H.  Mfg.  Co.  v.  Charles 
Parker  Co.,  17  Fed.  240;  Consol.  S. 
V.  Co.  v.  Crosby  S.  G.  &  L.  Co.,  7 
Fed.  768;  Illingworth  v.  Spalding, 
9  Fed.  154.  For  a  case  where  the 
complainant's  rights  were  held  so 
clear  as  to  warrant  a  preliminary 
injunction  without  a  prior  adjudica- 
tion or  public  acquiescence,  see  Wil- 
son v.  Consol.  S.  S.  Co.,  C.  C.  A., 
88  Fed.  286. 

5  Duff  Mfg.  Co.  v.  Kalamazoo  Ry. 
Sig.  Co.,  100  Fed.  357;  Richmond 
Milk  Co  v.  DeClyne,  90  Fed.  661. 

6  Palmer  P.  T.  Co.  v.  Newton  R. 
Works,  73  Fed.  218;  Duff  Mfg.  Co. 
v.  Kalamazoo  Ry.  Sig.  Co.,  100  Fed. 
357;  Silver  &  Co.  v.  J.  P.  Eustis 
Mfg.  Co.,  130  Fed.  348.  Eight 
months  of  public  acquiescence  were 
held  to  be  enough.     Wilson  v.  Jeffer- 


son, 78  Fed.  366.  Cf.  Johnston  R. 
Co.  v.  Avery  Mach.  Co.,  28  Fed.  193; 
Stahl  v.  Williams,  52  Fed.  645.  Five 
years  of  public  acquiescence  were 
held  sufficient.  McDowell  v.  Kurtz, 
C.  C.  A.,  77  Fed.  206.  So  of  six 
years.  White  v.  Hunter,  47  Fed. 
819;  Nat.  Typ.  Co.  v.  N.  Y.  Typ. 
Co.,  46  Fed.  144. 

7  Whippany  Mfg.  Co.  v.  United  I. 
F.  Co.,  C.  C.  A.,  87  Fed.  215;  Duff 
v.  Kalamazoo  Ry.  Sig.  Co.,  100  Fed. 
357;  Richmond  Mica  Co.  v.  De 
Clyne,  90  Fed.  661 ;  Standard  Paint 
Co.  v.  Reynolds,  43  Fed.  304;  John- 
son R.  R.  S.  Co.  v.  Union  S.  &  S. 
Co.,  C.  C.  A.,  55  Fed.  487 ;  Hatch  S. 
Ry.  Co.  v.  El.  Storage  Ry.  Co.,  C.  C. 
A.,  100  Fed.  975;  Jefferson  Electric 
Light,  Heat  &  Power  Co.  v.  Westing- 
house  Electric  &  Mfg.  Co.,  C.  C.  A., 
134  Fed.  392.  Cf.  Sawyer  Sp.  Co.  v. 
Turner,   55   Fed.   979. 

8  Orr  v.  Littlefield,  1  W.  &  M.  13; 
Thayer  v.  Wales,  9  Blatchf.  170; 
s.  c,  5  Fisher,  130;  Kirby  Bung 
Mfg.  Co.  v.  White,  1  Fed.  604;  but 
see  Many  v.  Sizer,  1  Fish.  Pat.  Cas. 
31. 


277] 


IN   PATENT    CASES. 


875 


elusive,9  or  show  that  such  judgments  were  obtained  fcjy  consent, 
collusion  or  fraud,10  or  without  any  substantial  contest.11  This 
is  still  the  rule  in  the  same  circuit,12  and  has  been  applied  when 
the  previous  adjudication  was  a  judgment  at  law  rendered  upon 
a  verdict,  as  well  as  when  an  interlocutory  decree  in  equity.18 
It  has  special  force  when  the  Supreme  Court  of  the  United 
States,14  or  the  Circuit  Court  of  Appeals  for  that  circuit,15 
has  established  the  validity  of  the  patent.  It  is  usually  followed 
when   the   decision   was   by   the   Circuit   Court   of  Appeals, 


16 


9  Page  v.  Holmes  B.  A.  Tel.  Co., 
2  Fed.  300;  s.  c,  18  Blatchf.  118; 
Bragg  v.  Mayor  etc.  of  N.  Y.,  141 
Fed.  118.  But  see  Motion  Picture 
Patents  Co.  v.  Laemmle,  178  Fed. 
104. 

10  Am.  Nie.  P.  Co.  v.  Elizabeth, 
4  Fish.  1S9;  Page  v.  H.  B.  A.  Tel. 
Co.,  2  Fed.  330;  American  M.  Puri- 
fier Co.  v.  Vail,  15  Blatchf.  315: 
but  see  Orr  v.  Littlefield,  1  W.  &  M. 
13.  Where,  after  proofs  had  been 
taken,  the  defendant  made  default, 
the  court  merely  examined  the  case 
suftieiently  to  dispose  of  the  actual 
controversy  and  refused  to  pass  up- 
on the  questions  arising  in  detail 
so  as  to  enable  the  decision  to  be 
used  in  case  of  a  subsequent  in- 
fringement. Victor  Talking  Mach. 
Co.  v.  Leed  &  Catlin  Co.,  180  Fed. 
778. 

11  N.  Y.  Button  Works  v.  Crescent 
Button  Co.,  185  Fed.  820. 

12  Elite  Pottery  Co.  v.  Dececo  Co., 
C.  C.  A.,  150  Fed.  581;  Cohen  v. 
Stephenson  &  Co.,  C.  C.  A.,  142  Fed. 
467;  A.  B.  Dick  Co.  v.  Pomeroy  Du- 
plicator Co.,  117  Fed.  154;  Walker 
Patent  Pivoted  Bin  Co.  v.  Miller 
&  England,  132  Fed.  823;  Warren 
Bros  Co.  v.  City  of  Montgomery, 
172  Fed.  414:  Tnterurban  By.  &  T. 
Co.  v.  Westinghouse  E.  &  Mfg.  Co., 
C.   C.  A.,   186   Fed.   166;    Schmeiser 


Mfg.  Co.  v.  Lilly,  189  Fed.  631; 
Mine  &  Smelter  Supply  Co.  v. 
Braeckel  Concentrator  Co.,  197  Fed. 

897. 

WPanoulias  v.  Hawley,  178  Fed. 

101. 

14  Am.  Bell  Tel.  Co.  v.  McKees- 
port  Tel.  Co..  57  Fed.  661 ;  Westing- 
house  Air-Brake  Co.  v.  Christensen 
Eng.  Co.,  113  Fed.  594;  Cutler-Ham- 
mer Mfg.  Co.  v.  Hammer,  124  Fed. 
222. 

15  Armat  Moving  Picture  Co.  v. 
Edison  Manufacturing  Co.,  121  Fed. 
559;  Motion  Picture  Patents  Co.  v. 
Laemmle,  178  Fed.  104:  Victor 
Talking  Mach.  Co.  v.  Sonora  Phono- 
graph Co.,  188  Fed.  330;  Walker 
Patent  Pivoted  Bin  Co.  v.  Bernard 
Gloekler  Co.,  188  Fed.  435. 

16  Leeds  &  Catlin  Co.  v.  Victor 
Talking  Mach.  Co.,  213  U.  S.  301, 
312,  29  Sup.  Ct.  Bcp.  495.  53  L.  ed. 
805;  Cohen  v.  Stephenson  &  Co.,  C. 
C.  A..  142  Fed.  4(17:  Thomson-Hous- 
ton Electric  Co.  v.  Holland,  143  Fed. 
903:  Gaiculagraph  Co.  v.  Automat- 
ic Time  Stamp  Co..  149  Fed.  436; 
Badische  \Anilin  &  Soda  Fabrik  v. 
A.  Klipstein  &  Co.,  125  Fed.  543: 
Consolidated  Rtfbbef  Tire  Co.  v. 
Diamond  Bubber  Co.  of  Now  York. 
C.  C.  A..  157  Fc.l.  677:  Timolat  v. 
Phila.  Pneumatic  Tool  Co.,  123  Fed. 
899;   Westinghouse  Electric  &  Mfg. 


ST<) 


INJUNCTIONS. 


[§  277 


or  by  a  District  Court,17  of  another  circuit.  When  a  pre- 
liminary injunction  has  been  granted  upon  the  faith  of  such  an 
adjudication,  the  appellate  court  should  ordinarily  affirm  the 
same  upon  an  interlocutory  appeal,  without  passing  upon  the 
validity  of  the  patent  or  the  merits ; 18  but  it  has  been  said  that 
the  doctrine  depends  upon  comity/9  and  is  not  a  rule  of  law, 
but  one  of  practice,  convenience  and  expedience.20  When  a 
judge  is  clear  in  his  conviction  that  a  previous  decision,  made 
in  another  circuit  against  another  defendant,  has  been  wrong- 
fully decided,  he  is  not  bound  to  follow  it.21  A  final  decree,  at 
least,  will  not  be  reversed  by  the  Supreme  Court  merely  because 


Co.  v.  Condit  Electrical  Mfg.  Co., 
159  Fed.  144;  Gormley  &  Jeffrey 
Tire  Co.  v.  U.  S.  Agency,  C.  C.  A., 
177  Fed.  691;  Underwood  Type- 
writer Co.  v.  Fox  Typewriter  Co., 
181  Fed.  530;  Interurban  Ry.  & 
Terminal  Co.  v.  Westinghouse  Elec- 
tric &  Mfg.  Co.,  C.  C.  A.,  186  Fed. 
106,  170,  108  C.  C.  A.,  298;  Calcula- 
graph  Co.  v.  Automatic  Time  Stamp 
Co.,  C.  C.  A.,  187  Fed.  276;  Parsons 
Non-Skid  Co.  v.  E.  J.  Willis  Co.,  190 
Fed.  333;  Acme  Acetylene  Appli- 
ance Co.  v.  Commercial  Acetylene 
Co.,  C.  C.  A.  192   Fed.  321. 

17  Leeds  &  Catlin  Co.  v.  Victor 
Talking  Mach.  Co.,  213  U.  S.  301, 
312,  29  Sup.  Ct.  495,  53  L.  ed.  805; 
Interurban  Ry.  &  Terminal  Co.  v. 
Westingbouse  Electric  &  Mfg.  Co., 
C.  C.  A.,  186  Fed.  166,  170,  108  C. 
C.  A.  298;  Scbmeiser  Mfg.  Co.  v. 
Lilly,  189  Fed.  631 ;  Acme  Acetylene 
Applicance  Co.  v.  Commercial  Acety- 
lene Co.,  C.  C.  A.,  192  Fed.  321; 
Fireball  Gas  Tank  &  Illuminating 
Co.  v.  Commercial  Acetylene  Co., 
C.  C.  A.,  198  Fed.  650.  See  West- 
inghouse Electric  &  Mfg.  Co.  v.  Sut- 
ter, 194  Fed.  888 ;  Hammond  Buckle 
Co.  v.  Weld,  C.  C.  A..  72  Fed.  171  ; 
Westingbouse  El.  &  Mfg.  Co.  v.  Roy- 
al Weaving  Co.,  115  Fed.  733;  West- 
ern El.  Co.  v.  Keystone  Tel.  Co.,  15 


Fed.  809 ;  Brunswick-Balke-Colender 
Co.  v.  Koehler  &  Hinricbs,  115  Fed. 
648;  U.  S.  Gramapbone  Co.  v.  Sea- 
man, C.  C.  A.,  113  Fed.  745;  Brill  v. 
Peckbam  Mfg.   Co.,   129  Fed.  139 

"Leeds  &  Catlin  Co.  v.  Victor 
Talking  Mach.  Co.,  213  U.  S.  301, 
312,  29  Sup.  Ct.  495,  53  L.  ed.  805; 
Interurban  Ry.  &  Terminal  Co.  v. 
Westinghouse  Electric  &  Mfg.  Co., 
C.  C.  A.,  186  Fed.  166,  170,  108  C. 
C.   A.  298. 

19  See,  however,  Mine  &  Smelter 
Supply  Co.  v.  Braeckel  Concentrat- 
or Co.,  197  Fed.  897. 

20  Mast,  Foos  &  Co.  v.  Stover  Mfg. 
Co.,  177  U.  S.  485,  488,  489,  44  L. 
ed.  856,  858. 

21Welsbach  Lt.  Co.  v.  Cosmopoli- 
tan Inc.  El.  Co.,  100  Fed.  648;  Horn 
&  Br.  Mfg.  Co.  v.  Pelzer,  91  Fed. 
665;  Nat.  Cash  Reg.  Co.  v.  Amer. 
C.  R.  Co.,  C.  C.  A.,  53  Fed.  367; 
Wanamaker  v.  Enterprise  Mfg.  Co., 
C.  C.  A.,  53  Fed.  791;  Cimiotti  U. 
Co.  v.  Am.  Fur.  Ref.  Co.,  120  Fed. 
672;  Diamond  Match  Co.  v.  Union 
Match  Co.,  129  Fed.  602;  Westing- 
house El.  &  Mfg.  Co.  v.  Condit  El. 
Mfg.  Co.,  159  Fed.  144;  Underwood 
Typewriter  Co.  v.  Fox  Typewriter 
Co.,  181  Fed.  530.  See  also  Hatch 
S.  B.  Co.  v.  El.  St.  Ry.  Co.,  C.  C.  A., 
100   Fed.   975;    Consol.   El.  S.   C.  v. 


277] 


IN    PATENT    CASES. 


87 


insufficient  weight  was  given  below  to  the  doctrine  of  comity.22 
When  the  only  disputed  question  was  the  priority  of  invention, 
similar  weight  has  been  given  to  the  decisions  of  the  Supreme 
Court  of  the  District  of  Columbia  or  Court  of  Appeals  of  that 
District  upon  appeals  from  the  decisions  of  the  Patent  Office  in 
interference  proceedings,23  and  to  the  decisions  of  the  Commis- 
sioner of  Patents  in  such  proceedings ; 24  but  not  in  contro- 
versies concerning  the  patentability  or  novelty  of  the  patent,  or 
other  disputed  points.25  Decisions  of  the  Canadian  courts  are 
also  entitled  to  great  consideration  upon  such  a  motion.26  The 
rule  has  been  applied  to  adjudications,  that  a  given  state  of 
facts  does  or  does  not  constitute  an  infringement,  as  well  as  to 
those  upon  the  construction  and  validity  of  a  patent.27  It  does 
not  include  a  case  where  an  entirely  new  defense  is  pleaded,  al- 
though then  that  defense  alone  will  be  considered  upon  the 
decision  of  a  motion.28  Where  there  has  been  no  adjudication, 
a  preliminary  injunction  will  never  be  granted  if  there  is  a  fair 


Accumulator  Co.,  C.  C.  A.,  55  Fed. 
485 ;  Am.  Paper  P.  &  B.  Co.  v.  Nat. 
F.  B.  &  P.  Co.,  C.  C.  A.,  51  Fed. 
259;  N.  Y.  Filter  Mfg.  Co.  v.  Niag- 
ara Falls  W.  W.  Co.,  C.  C.  A.,  80 
Fed.  924;  Adams  v.  Tannage  P.  Co., 
C.  C.  A.,  81  Fed.  178;  Flectric  Mfg. 
Co.  v.  Edison  El.  L.  Co.,  C.  C.  A., 
(il  Fed.  834;  Overman  Wheel  Co.  v. 
Curtis,  53  Fed.  247;  N.  Y.  Filter 
Mfg.  Co.  v.  Jackson,  112  Fed.  678. 
Infra,  §  377. 

22  Mast.  Foos  &  Co.  v.  Stover  Mfg. 
Co.,  177  U.  S.  485,  488,  489,  44  L. 
ed.  856,  858.  See  Campbell  Print- 
ing-Press  &  Mfg.  Co.  v.  Duplex 
Printing-Press  Co.,  C.  C.  A.,  101 
Fed.  282,  41  C.  C.  A.  351;  Interur- 
ban  Ry.  &  Terminal  Co.  v.  Westing- 
house  Electric  &  Mfg.  Co.,  C.  C.  A., 
186  Fed-  166,  170,  108  C.  C.  A.  298. 

23  Scott  v.  Laas,  C.  C.  A.,  150 
Fed.  764;  White  Dental  Mfg.  Co.  v. 
Johnson,  56  Fed.  R.  262. 

24  Smith  v.  Halkyard,  16  Fed. 
414;    Celluloid   Mfg.    Co.   v.   Chrow- 


lithian  C.  &  C.  Co.,  24  Fed.  275; 
Turner  Brass  Works  v.  Appliance 
Mfg.  Co.,  164  Fed.  195;  Weston  El. 
Instrument  Co.  v.  Am.  Instrument 
Co.,  169  Fed.  659;  Perfection  Cooler 
Co.  v.  Rose  Mfg.  Co.,  175  Fed.  120. 
Contra,  Wilson  v.  Consolidated 
Store-Service  Co.,  C.  C.  A.,  88  Fed. 
286,  288.  See  Fenton  Met.  Mfg.  Co. 
v.  Chase,  73  Fed.  831. 

25  Dickerson  v.  De  La  Vergne  Re- 
frigerating Mach.  Co.,  35  Fed.  143, 
146;  Turner  Brass  Works  v.  Appli- 
ance Mfg.  Co.,  164  Fed.  195;  Perfec- 
tion Cooler  Co.  v.  Rose  Mfg.  Co., 
175  Fed.   120. 

26  Carter  &  Co.  v.  Wollschlaeger, 
53  Fed.  573. 

27Byerley  v.  Ellis  Co.,  190  Fed. 
772. 

28  General  El.  Co.  v.  Condit  El. 
Mfg.  Co.,  191  Fed.  511;  Gantewell 
Fire  Alarm  Tel.  Co.  v.  Ilackensack 
Improvement  Commission,  199  Fed. 
182;  Bragg  v.  Mayor,  etc.  of  N.  Y., 
141   Fed.  118. 


878 


INJUNCTIONS. 


[§  m 


doubt  as  to  invention,  anticipation,  obstruction  or  infringe- 
ment.29 Where  there  is  no  prior  patent  or  publication  submitted, 
nor  any  room  for  doubt  as  to  the  infringement,  it  has  been  held 
that  the  presumption  arising  from  the  grant  of  the  patent  is  suffi- 
cient to  warrant  the  issue  of  an  injunction.30  This  has  been 
described  as  "the  Second  Circuit  Rule,''  but  a  recent  case  states 
that  it  rests  upon  "a  slender  foundation."31  It  was  there  said, 
that  the  phrase  "fair  doubt"  refers  to  something  more  than  the 
effect  produced  on  the  judicial  mind  by  the  direct  evidence 
submitted  on  the  motion,  but  includes  "a  belief  that  other  reach- 
able testimony  exists  which,  by  reasonable  effort,  the  party 
may  adduce."32  If,  upon  a  motion  for  a  preliminary  injunc- 
tion, the  parties  are  willing  to  rest  their  case  for  a  final  hearing' 
upon  the  papers  then  presented,  without  oral  testimony,  the 
court  is  more  inclined  to  decide  the  question  upon  the  merits.33 
Because  of  the  weight  which  the  decision  has  as  a  precedent, 
proof  that  the  defendant  will  not  be  seriously  injured  by  the  in- 
junction, does  not  justify  its  issue,34  although  when  there  is  evi- 
dence that  the  complainant  cannot  suffer  serious  loss  it  may  af- 


29  Xewhall  v.  McCabe  Hanger 
Mfg.  Co.,  C.  C.  A.,  125  Fed.  919;  GO 
C.  C.  A.  629;  Vacuum  Cleaner  Co. 
v.  Waldorf-Astoria  Hotel  Co.,  198 
Fed.  865.  See  Hildreth  v.  Norton.  C. 
C.  A.,  159  Fed.  42S;  Motion  Picture 
Patents  Co.  v.  N.  Y.  Motion  Picture 
Co.,  174  Fed.  51:  Meyers  v.  Skinner, 
179  Fed.  8G0:  Crown  Cork  &  Seal 
Co.  v.  Brooklyn  Bottle  Stopper  Co., 
190  Fed.  323;  Lovell-MeConnell  Mfg. 
Co.  v.  Automobile  S.  Mfg.  Co.,  193 
Fed.  658:  Gamewell  Fire  Alarm  Tel. 
Co.  v.  Star  El.  Co.,  199  Fed.  185. 

30  Pelzer  v.  City  of  Bingbamton, 
C.  C.  A.,  95  Fed.  823,  37  C.  C.  A. 
288,  which  bas  been  said  to  be  tbe 
only  case  in  wbich  a  motion  for  a 
preliminary  injunction,  lost  in  tbe 
court  below,  prevailed  in  tbe  Circuit 
Court  of  Appeals ;  Seidenberg  v. 
Davidson,  112  Fed.  431,  432.  La- 
combe,  J.;  Vacuum  Cleaner  Go.  v. 
Waldorf-Astoria  Hotel  Co.,  19S  Fed. 


865,  866.     See,   also,  Fuller  v.  Gil- 
more,   121    Fed.   129. 

31  Vacuum  Cleaner  Co.  v.  Wal- 
dorf-Astoria Hotel  Co.,  198  Fed.  865, 

866,  per  Hough,  J.:  "Tbe  function 
of  tbe  appellate  court  bas  more  fre- 
quently been  directed  to  discovering 
doubt,  and  tbus  delaying  decision, 
tban  to  adjudicating  matters  far 
more  fully  and  elaborately  present- 
ed to  the  lower  court  than  it  was 
the  practice  in  equity  to  do  when  so 
vital  a  litigation  as  that  over  the 
Morse  electric  telegraph  reached  the 
Supreme  Court.  The  record  of  that 
case,  compared  with  modern  records, 
is  an  instructive  example  of  deteri- 
oration in  procedure." 

32  Ibid. 

33  Crown  Cork  &  Steel  Co.  v. 
Brooklyn  Bottle  Stopper  Co.,  190 
Fed.  323. 

34  See  Victor  Talking  Mach.  Co. 
v.  Leed  &  Catlin  Co..  180  Fed.  778. 


§  277] 


IN   PATENT    CASES. 


87!) 


ford  a  reason  for  denying  the  writ.35  Laches  by  the  plainti/f 
before  the  suit,36  and  after  the  suit  has  begun,37  is  a  reason  for 
denying  the  motion.  A  delay  pending  litigation  with 
other  infringers  is  not  laches.38  If  serious  public  inconvenience 
would  result  from  a  preliminary  injunction,  the  application  may 
be  denied.39  Where  some  of  the  claims  in  the  patent  were  sus- 
tained and  found  to  hare  been  infringed  and  others  held 
to  be  invalid,  the  complainant  has  been  required  to  disclaim  the 
latter  before  the  injunction  issues.40  But  the  better  practice 
is  not  to  require  a  disclaimer  until  the  entry  of  the  final  decree 
after  any  accounting  that  may  be  ordered  has  been  terminated, 
in  order  that  the  complainant  may  have  the  right  to  have  so 
much  of  the  adjudication  as  is  against  him  reviewed  upon  ap- 
peal.41 The  combination  of  the  complainant  with  other  pat- 
entees, so  as  to  create  a  monopoly,42  the  absolute  refusal  of  the 
owner  of  .the  patent  to  use  the  same,  which  had  deprived  the 
public  of  the  benefit  of  the  invention,43  and  the  fact  that  the 
principal  use  of  the  invention  was  in  connection  with  gambling, 
when  it  might  be  used  for  other  purposes ; 44  were  held  to  be  no 


35  Meyers  v.  Skinner,  179  Fed. 
860. 

36TJnited  Nickel  Co.  v.  New  H. 
S.  Iff.  Co.,  17  Fed.  528;  Waite  v. 
Chichester  Chair  Co.,  45  Fed.  258; 
Keyes  v.  Pueblo  Sm.  &  Ref.  Co.,  31 
Fed.  560;Byerley  v.  Standard  As- 
phalt &  Rubber  Co.,  189  Fed.  759. 
In  one  case  a  delay  of  two  months 
was  held  such  laches  as  to  defeat  the 
application.  Ney  Mfg.  Co.  v.  Su- 
perior Drill  Co.  (C.  C.  Ohio),  50 
Fed.  152.  But  see  Brush  El.  Co.  v. 
El.  Imp.  Co.,  45  Fed.  241  :  Nat. 
Heeling  Mach.  Co.  v.  Abbott,  77  Fed. 
462;  Collingnon  v.  Hayes,  8  Fed. 
912;  N.  Y.  G.  S.  Co.  v.  Buffalo  G. 
S.  Co.,  18  Fed.  638. 

37  Vacuum  Cleaner  Co.  v.  Wal- 
dorf-Astoria Hotel  Co.,  198  Fed.  865, 
867,  where,  with  proper  diligence, 
the  case  would  have  been  ready  for 
final  submission. 

38  Timolat  v.  Franklin  Boiler 
Works,  C.  C.  A.,  122  Fed.  69;  (a 
delay  of  three  years). 


39  S.  W.  Brush  EL  &  P.  Co.  v. 
La.  EL  L.  Co.,  45  Fed.  893;  Bliss  v. 
Brooklyn,  4  Fisher's  Pat.  Cas.  596; 
Am.  Ordinance  Co.  v.  Driggs-See- 
bury  Co.,  87  Fed.  947 ;  Hoe  v.  Boston 
Adv.  Corp.,  14  Fed.  914;  Robinson 
on  Patents,  §  1200.  But  see  Pelzer 
v.  Binghamton,  C.  C.  A.,  95  Fed. 
823;  N.  Y.  Filter  Mfg.  Co.  v.  Niag- 
ara Falls  W.  Co.,  C.  C.  A.,  77  Fed. 
900;  Westinghouse  A.  B.  Co.  v. 
Great  N.  Ry.  Co.,  SO  Fed.  132 

40  F.  D.  Cummer  &  Son  Co.  v.  At- 
las Dryer  Co.,  C.  C.  A.,  193  Fed.  993. 

41  Page  Mach.  Co.  v.  Dow,  Jones 
&  Co.,  C.  C.  A.,  168  Fed.  703. 

42  Lanyon  Zinc  Co.  v.  Brown,  C. 
C.  A.,  115  Fed.  150;  Edison  El.  L. 
Co.  v.  Sawyer-Man  El.  Co.,  C.  C.  A., 
53  Fed.  592. 

43  General  El.  Co.  v.  Wise,  119 
Fed.  922;  Continental  Paper  Bag 
Co.  v.  Eastern  Paper  Bag  Co.,  210 
U.  S.  405,  52  L.  ed.  1122. 

44  Fuller  v.   Berger,   C-  C.   A.,   65 


SMJ 


INJUNCTIONS. 


[S  B7J 


reasons  for  denying  an  injunction.  Where  the  defendant  is 
pecuniarily  responsible,45  especially  wliere  the  complainants 
have  established  a  regular  license  fee,46  or  where  the  defendant 
offers  a  bond  or  undertaking  with  a  sufficient  surety  that  he 
will  pay  whatever  may  be  awarded  against  him  for  damages 
or  profits,  the  injunction  will  usually  be  denied,  unless  there 
has  been  a  previous  adjudication  sustaining  the  plaintiff's  pat- 
ent.47 Sometimes  even  where  there  had  been  such  an  adjudica- 
tion.48 It  has  been  said :  that  the  existence  and  use  of  an  un- 
patented anticipating  device  prior  to  the  invention  covered 
by  the  patent,  may  be  established  by  oral  testimony  only  when 
sufficient  to  prove  the  facts  beyond  a  reasonable  doubt ; 49  and 
that  evidence  that  defendant  had  an  infringing  device  in  his 
possession,  without  proof  that  it  made,  used,  or  sold  the  same, 
does  not  make  out  a  case  of  infringement.50  After  a  defendant 
has  once  infringed  a  patent  owned  by  the  plaintiff,'  it  seems 
that  the  court  will  usually  enjoin  him  from  doing  so  in  the 


L.R.A.  381,  120  Fed.  274.     But  see 
infra,  §  284. 

45  N.  Y.  Grape  Sugar  Co.  v. 
American  Grape  Sugar  Co.,  10 
Fed.  835;  Westinghouse  A.  B.  Co. 
v.  Burton  S.  C.  Co.,  70  Fed.  619; 
Xilsson  v.  Jefferson,  78  Fed.  360; 
Huntington  D.  P.  Co.  v.  Alpha  P.  C. 
Co.,  91  Fed.  534;  Karfiol  v.  Both- 
ner,  151  Fed.  777;  Byerley  v.  Stand- 
ard Asphalt  &  Rubber  Co.,  189  Fed. 
759;  Gamewell  Fire  Alarm  Tel.  Co. 
v.  Star  El.  Co.,  199  Fed.  185.  Con- 
tra, General  El.  Co.  v.  Wise,  119 
Fed.  922.  In  some  cases,  the  defend- 
ant is  then  required  to  keep  an  ac- 
count.    See  infra,  §  297. 

46  Overweight  C.  El.  Co.  v.  Cahill 
&  H.  El.  Co.,  86  Fed.  33S;  Over- 
weight C.  El.  Co.  v.  Improved  0.  of 
R.  M.  H.  Ass'n,  C.  C.  A.,  94  Fed. 
1.").");  Nat.  Heeling  Mach.  Co.  v.  Ab- 
bott, 77  Fed.  462.  See  Nat.  Cash 
Reg.  Co.  v.  Navy  C.  R.  Co.,  99  Fed. 
565:  Eastern  P.  B.  Co.  v.  Nixon,  35 
Fed.    752;    McMillan   v.   Conrad,    16 


Fed.  128;  Eagle  Mfg.  Co.  v.  Cham- 
berlain Plow  Co.,  36  Fed.  905;  Hoe 
v.  Knap,  27  Fed.  204:  Geo.  A.  Mac- 
beth Co.  v.  Lippincott  Glass  Co..  54 
Fed.  167:  Washburn  &  M  Mfg.  Co. 
v.  H.  B.  Scott  &  Co..  22  Fed.  710; 
Edison  El.  Lt.  Co.  v.  Columbia  Inc. 
L.  Co.,  56  Fed.  496:  X.  Y.  Belting  & 
P.  Co.  v.  Magowan,  23  Fed.  596: 
Greenwood  v.  Bracher.  1  Fed.  856. 
Contra.  Warren  Bros.  Co.  v.  City  of 
Montgomery,  172  Fed.  414. 

47  McWilliams  Mfg.  Co.  v.  Blun- 
dell,  11  Fed.  419:  Campbell  Pr. 
Press  Co.  v.  Prieth,  77  Fed.  976; 
Carter  &  Co.  v.  Wollschlaeger,  53 
Fed.  573. 

48  Westinghouse  A.  B.  Co.  v.  Bur- 
ton S.  Car  Co.,  C.  C.  A.,  77  Fed. 
301 :  Norton  v.  Eagle  Auto  Can.  Co., 
61  Fed.  293. 

49  De  Laval  Separator  Co.  v.  Iowa 
Dairy  Separator  Co.,  C.  C.  A.,  194 
Fed.  423. 

50  Sheffield  Car  Co.  v.  Buda  Foun- 
drv  &  Mfg.  Co.,  177  Fed.  713. 


277] 


IN   PATENT    CASKS. 


881 


future,  even  though  he  swears  that,  he  has  no  intention  of  doing 
so  again,  unless  he  further  proves  that  he  has  paid  all  damages 
occasioned  by  his  infringement,  and  has  desisted  from  it  ;  51  but 
not  where  it  clearly  appears  that  the  infringement  ceased  before 
the  suit  was  brought  and  was  made  without  knowledge  of  the 
complainant's  rights,52  especially  when  the  complainant  knew 
of  the  cessation  before  the  suit  was  brought.53  An  injunction 
may  be  dissolved  where  the  plaintiff  has  sent  a  false  or  mislead- 
ing description  of  the  same  to  the  trade.54  An  ex  parte  appli- 
cation for  an  injunction  to  restrain  the  infringement  of  a  pat- 
ent should,  it  seems,  be  supported  by  an  affidavit,  or  an  allega- 
tion in  a  bill  verified  by  affidavit  of  the  plaintiff,  stating  that 
he  believes  that  the  person  to  whom  the  patent  was  issued  was 
the  original  inventor  thereof,  or  that  the  invention  was  new, 
or  had  not  been  introduced  into  public  use  in  the  United  States 
for  more  than  two  years  prior  to  the  application  upon  which  the 
patent  was  issued.55  It  has  been  held  that  after  the  expiration 
of  a  patent  an  injunction  may  issue  to  prevent  the  use  of  a  ma- 
chine made  while  the  patent  was  in  force;  and  it  has  been  said 
that  an  injunction  previously  issued  will,  until  dissolved  by 
order,  remain  in  force  so  far  as  still  to  forbid  such  a  use.56 
lint  a  bill  praying  for  such  an  injunction  must  allege  either 
that  the  defendant  is  using  machines  manufactured  during  the 
term  of  the  patent  and  in  violation  of  it,  or  that  the  plaintiff 
has  cause  to  fear  such  a  use.57  An  injunction  against  the  manu- 
facture or  sale  of  articles  in  violation  of  a  patent  right  is  vio- 
lated by  their  sale  or  manufacture  within  the  United  States, 


51  Jenkins  v.  Greeriwald,  1  Bond, 
t-2(i-.  s.  v..  2  Fisher,  37;  Sickels  v. 
Mitchell.  3  Blatchf.  548,;  Poppen- 
liusen  v.  N.  Y.  G.  P.  C.  Co.,  4 
Blatchf:  184;  Celluloid  Mfgi  Co.  v. 
Arlington  Mfgi  Co.,  34  Fed.  324; 
Morton  Tr.  Co.  v.  Standard  Steel 
Car  Co.,  C.  C.  A..  177  Fed.  931. 

52(ieiferal  El.  Co.  v.  Pittsburg- 
Buffalo  Co..  144  Fed.  43d.  See 
Home  Ins.  Co.  v.  Nobles.  i>3  Fed. 
042. 

53  Kennieott    Water    Softener    Co. 
v.  Bain.  ('.  ( '.  A..  185  Fed;  520. 
Fed.  Prac.  Vol.  I.— 56. 


54  Meyers  v.  Skinner.  186  Fed. 
347.     See  infra.  £§  284.  296: 

55  Hill  v.  Thompson.  3  Merit.  622? 
Sturz  v.  De  La  Rue.  5  Russ.  322. 
329;  Sullivan  v.  Redfield,  I  I'aine. 
441  :    l\    S.    R.    S..    §§    4SSC.    4887. 

56  Am.  D.  R.  15.  Co.  v.  Rutland 
M.  Co.,  2  Fed.  355,  Bui  see  Am. 
Gable  R\ .  Co.  v.  Chicago  City  Ry. 
Co..  4  1  Fed.  522;  WestinghoUse  v. 
Carpenter.  C.  C.  A..  43  Fed.  894. 
See   ,ntra.  §j§  287.  2!)6. 

57  Am.  1).  R.  B.  Co.  v.  Rutland 
M.  Co.,  2  Fed.  3.').-). 


882  injunctions.  [§  278 

but  beyond  the  jurisdiction  of  the  court.58  After  an  injunction 
against  the  infringement  of  a  patent,  the  defendant  or  his 
trustee  in  bankruptcy  may  be  enjoined  from  selling  the  in- 
fringing apparatus  pending  his  appeal  from  the  decree.59  Tf 
has  been  held,  that,  after  an  interlocutory  decree  granting  an 
injunction,  the  complainants  cannot  sue  in  another  district  for 
the  sole  purpose  of  obtaining  an  adjudication  that  other  parties 
therein  located  have  been  the  real  parties  in  interest  in  the 
prior  suit  and  are  bound  by  the  injunction.60 

§  278.  Injunctions  to  restrain  the  infringements  of 
copyrights.  The  Act  of  March  4,  1909,  provides:  ''That  if 
any  person  shall  infringe  the  copyright  in  any  work  protected 
under  the  copyright  laws  of  the  United  States  such  person 
shall  be  liable:  (a)  To  an  injunction  restraining  such  infringe- 
ment. "  1  "That  any  such  court  or  judge  thereof  shall  have 
power,  upon  bill  in  equity  filed  by  any  party  aggrieved,  to 
grant  injunctions  to  prevent  and  restrain  the  violation  of  any 
right  secured  by  said  lavs,  according  to  the  course  and  prin- 
ciples of  courts  of  equity,  on  such  terms  as  said  court  or  judge 
may  deem  reasonable.  Any  injunction  that  may  be  granted  re- 
straining and  enjoining  the  doing  of  anything  forbidden  by 
this  Act  may  be  served  on  the  parties  against  whom  such  injunc- 
tion may  be  granted  anywhere  in  the  United  States,  and  shall 
be  operative  throughout  the  United  States  and  be  enforceable 
by  proceedings  in  contempt  or  otherwise  by  any  other  court 
or  judge  possessing  jurisdiction  of  the  defendants."2  This 
statute  is,  however,  merely  declaratory  of  the  previous  rule  in 
equity  which,  it  is  said  by  Lord  Eldon,  was  "founded  upon  this; 
that  the  law  does  not  give  a  complete  remedy  to  those  whose 
literary  property  is  invaded;  for  if  publication  after 
publication  is  to  be  made  a  distinct  cause  of  action, 
the  remedy  would  soon  become  worse  than  the  dis- 
ease.       This     court,      therefore,     interposes     by     injunction- 

58  Macaulay  v.  White  S.  M.  Co..  9  60  Kehoe  v.  Bradford  &  Lasher, 
Fed.  098.  175  Fed.. 800. 

59  United  Wireless  Tel.  Co.  v.  Nat.  §  278.     l  35  St.  at  L.  1075.  §  25, 
El.  Signaling  Co.,  C.  C.  A.,  198  Fed.  Pierce  Fed.  Code   (Supp.),  §  1587. 
335*.  2  [hid.,    §    36<    pierCe    Fed.    Code 

(Supp.),   §    1589. 


§  278] 


IX  COPYRIGHT  CASES. 


SS3 


but  not  in  cases  where   an  action   cannot   be    maintained;"8 

The  rules  regulating'  the  issue  of  injunctions  to  prevent  the  in- 
fringement of  copyrights  are  in  general  similar  to  those  regulat- 
ing the  issue  of  injunctions  restraining  the  infringement  of 
patents;  but  decisions  which  relate  to  patent  case-  are  not  ab- 
solutely controlling  in  cases  arising  under  the  copyright  law.4 
The  plaintiff  must  show  a  clear  title  to  his  copyright,  and  an 
infringement  or  threatened  infringement  by  the  defendant.5 
It  has  been  held  that  an  injunction  is  void  when  obtained  and 
served  before  two  copies  of  the  work,  of  which  a  copyright 
is  sought,  have  been  deposited  in  the  copyright  office  or  mailed 
addressed  to  the  register.6  A  preliminary  injunction  will  not. 
be  granted  where  the  validity  of  the  copyright  and  the  infringe- 
ment are  denied  and  not  clearly  established.7  The  injunction 
will  be  denied  if  the  defendant  shows  that  the  plaintiff  has 
consented  to  his  infringement,  or  has  been  guilty  of  unreason- 
able delay  after  he  learned  that  it  had  occurred  or  was  threat- 
ened.8 How  long  a  time  must  have  elapsed  to  bar  the  plaintiff's 
right  to  an  injunction  has  not  been  definitely  settled.  It  has 
been  held  in  England,  however,  that  an  injunction  may  be  ob- 
tained after  the  copyright  has  been  infringed  to  the  plaintiff's 
knowledge  during  four  years.9  Moreover,  delay  will  not  pre- 
judice him,  if  solely  caused  bv  his  waiting  until  the  result  of 
litigation,  whether  prosecuted  by  himself  or  others,  to  settle 
a  doubtful  question  of  law  involving  the  validity  of  his  title.10 
As  has  been  said,  an  injunction  will  not  be  granted  unless  the 
plaintiff  shows  a  plain  title  to  the  copyright  which  he  claims; 


3  Lawrence  v.  Smith.  Jacob.  471, 
472. 

4  Bobbs-Merrill  Co.  v.  Straus,  210 
f.  S.  330,  345.  52  L.  ed,  1080,  HUM  ; 
Park  &  Sons  v.  Hartman,  12  L.R.A. 
(X.S.)  135,  153  Fed.  24.  Contra, 
Sctribner  v.  Strain.   130  Fed.  389. 

5  Chase  v.  Sanborn.  6  Off.  Gaz. 
032;  Parkinson  v.  Laselle.  3  Saw. 
330;  Lawrence  v.  Dana.  4  Clin".  1; 
Yuengling  v.  Senile,  12  Fed.  07 ; 
Drone  on  Copyright,  eh.  xi.  pp. 
496+543. 

6N.  Y.  Times  Co.  v.  Star  Co.,  1 0.5 
Fed.   110. 


7  Xixon  v.  Doran,  1G8  Fed.  575. 

8  Rundell  v.  Murray,  Jacob,  311; 
Saunders  v.  Smith.  3  MyL  &  Cr. 
711:  (happell  v.  Slieard,  1  ,lur. 
iX.  S.)  996.;  Tiasley  v.  Lacy.  1 
llcin.  A  M.  747;  Keene  v.  Clarke, 
5  Robertson  (X.  Y.),  38.  CO.  67: 
.Miller  v.  M'Elroy,  1  Am.  Law  Reg. 
198. 

9  Hogg  v.  Scott.  L.  R.  IS  Eq. 
444.  454:  Drone  on  Copyright,  504. 
512. 

10  Buxton  v.  .James.  5  De  G.  & 
Sm.  80;  Rumford  them.  Works  v. 
Vice,    14    Idatchf.    17!». 


884 


INJUNCTIONS. 


[§  273 


hut  "the  copyright  is  prima  facie  evidence  that  he  is  the  author, 
and  the  burden  of  proof  is  upon  the  defendant  to  show  the  con- 
tra rv,"  n  of  that,  for  some  other  reason,  there  is  a  defect  in 
the  title  claimed.12  And  the  court  will  protect  an  equitahle 
title  against  infringement  unless  the  defendant  possesses  su- 
perior equities  to  those  of  the  complainant.13  The  complainant 
is  not  obliged  to  prove  damage  from  the  breach  of  copyright.14 
Ordinarily,  the  injunction  forbids  the  publication  of  only  so 
much  of  the  defendant's  work  as  infringes  lipon  the  copyright 
of  the  plaintiff.15  Where  the  defendant's  publication  inter- 
mingles matter  infringing  the  complainant's  copyright  with 
other  matter  which  does  not,  the  entire  publication  may  be  en- 
joined, with  permission  to  the  defendant  to  apply  for  a  modifi- 
cation of  the  injunction  after  he  has  eliminated  the  objection- 
able matter;16  but  where  the  piratical  matter  is  insignificant 
in  amount  and  value  when  compared  with  the  rest  of  the  de- 
fendant's publication,  an  injunction  should  be  refused  and  the 
plaintiff's  right  limited  to  a  trial  by  jury  of  the  damages  ac- 
tually sustained.17  If  there  is  any  doubt  concerning  the  in- 
fringvment,  and  its  ascertainment  will  necessitate  the  examina- 
tion of  a  great  deal  of  matter,  the  court,  in  this  country,  usual- 
ly directs  a  reference  to  a  master  to  hear  testimony  and  state 
the  facts,  together  with  his  opinion  for  its  consideration,  before 
granting  an  injunction.18  Such  a  reference  is  usually  ordered 
before  the  final  hearing,  but  may  be  at  the  decree.19  In  Eng- 
land, however,  laborious  examinations  have  frequently  been 
made  by  the  judges  themselves,  unassisted,  except  by  counsel.20 


11  Taney,  C.  J.;  in  Reed  v.  Carusi, 
Taney,  72,  74. 

12  Drone  on  Copyright,  409; 
Story's  Eq.   Jur.,   §   936.   note   G. 

13  Little  v.  Gould,  2  Blatchf.  165. 

14  Reed  v.  Holliday,  3  9  Fed.  325, 
327. 

15  Webb  v.  Powers.  2  \Y.  &  St. 
497  ;  Story  v.  Holcombe,  4  McLean, 
306;  Farmer  v.  Elstner.  33  Fed. 
494. 

16  Park  &  Pollard  Co.  v.  Keller- 
strass.  181  Fed.  431. 

1'  Dun  v.  Lumbermen's  Credit 
Ass'n.,  209  U.  S.  20,  52  L.  ed.  663. 


18  Folsom  v.  Marsh.  2  Story,  100; 
Webb  v.  Powers,  2  W.  &  M.  497; 
Story  v.  Derby,  4  McLean,  160; 
Greene  v.  Bishop,  1  Cliff.  186;  Law- 
rence v.  Dana.  4  CHff.  1  ;  West  Pub. 
Co.  v.  Lawyers'  Co-operative  Pub. 
Co.,  25  L.R.A.  441;  64  Fed.  360; 
s.  c.  C.  C.  A..  35  L.R.A.  409,  79  Fed. 
756;  Drone  on  Copyright,  513.  But 
see  Smith  v.  Johnson.  4  Blatchf.  252. 

19  Lawrence  v.  Dana,  4  Cliff.  1 ; 
Drone  on  Copyright.  513. 

20  Lewis  v.  Fullarton,  2  Beav. 
6;  Murray  v.  Bogue.  1  Drew,  353; 
Jarrold    v.    Houlston.    3    Kav    &    J. 


278] 


IX  COPYRIGHT  CASES. 


885 


Instead  of  a  reference,  an  issue  at  law  may  be  directed.21  The 
plaintiff  need  not  specify  in  either  his  bill  or  his  affidavit  the 
parts  of  the  defendant's  publication  which  he  thinks  have  been 
taken  from  his  work.  A  general  allegation  of  infringement  ac- 
companied bv  a  verfiication  bv  affidavit  of  the  two  works  is  suffi- 
cient.22  The  practice  has  been  that,  "when  the  injunction  has 
been  moved  for,  the  two  works  have  been  brought  into  court, 
and  the  counsel  have  pointed  out  to  the  court  the  passages  which 
they  rely  upon  as  showing  the  piracy."  23  Clearer  proof  and  a 
stronger  case  than  would  be  sufficient  to  entitle  a  plaintiff  to  an 
injunction  after  the  hearing  is  often  required  before  he  can  ob- 
tain an  interlocutory  injunction.24  Where  there  is  doubt  about 
the  infringement,  an  injunction  may  be  withheld  upon  the  tiling 
of  a  bond  by  the  defendant.25  The  difficulty  of  accurately  deter- 
mining the  damages  resulting  from  an  unauthorized  publica- 
tion of  his  work  will  often  have  weight  in  leading  the  court 
to  grant  a  preliminary  injunction,  when  otherwise  it  might  re- 
fuse one.26  But,  on  the  other  hand,  the  court  will  often  refuse 
an  injunction  before  the  hearing,  when  it  is  plain  that  the  de- 
fendant would  suffer  more  injury  from  being  obliged  to  dis- 
continue the  publication  than  can  result  to  the  plaintiff  from 
his  continuing.27  It  has  been  held  in  England  that  if  a  work 
be  libelous,  immoral,  or  blasphemous,  which  last  named  term 
would  include  one  "which  impugned  the  doctrines  of  the  im- 
materiality and  immortality  of  the  soul," 28  there  can  be  no 
copyright  therein,  and  a  piratical  edition  thereof  will  not  be 
enjoined.29     These  decisions,  however,  one  of  which  stigmatized 


708;   Pike  v.  Nicholas,  L.  R.  5  Ch. 
251;  Drone  on  Copyright,  513. 

21Jollie  v.  Jaques,  1  Blatchf.  618. 

22  Farmer  v.  Calvert  L.  Co..  1 
Flip.  228,  235;  Sweet  v.  Maugham, 
11  Sim.  51;  Drone  on  Copyright, 
513. 

23  Sweet  v.  Maugham,  11  Sim.  51, 
53. 

24  Johnson  v.  Wyatt,  2  De  G.,  J. 
&  S.  18;  Drone  on  Copyright,  517, 
518. 

25  Louis  De  Jonge  &  Go.  v.  Breu- 
ker  &  Kessler  Co.,  147  Fed.  763.  See 
supra,  §  277. 


26Matthewson  v.  Stoekdale.  12 
Ves.  270;  Wilson  v.  Luke.  ]  Vict. 
Law  R.  127;  Prince  Albert  v. 
Strange.  1  Mac.  &  G.  25.  46;  Little 
v.  Gould,  2  Blatchf.  165;  Drone  on 
Copyright,  516-519. 

27  Spottiswoode  v.  Clarke,  2  Phil. 
154;  Cox  v.  Land  &  YV.  J.  Co.,  L.  R. 
9  Eq.  324~;  Lodge  v.  Stoddart,  9 
Rep.  137.  But  see  Emerson  v.  Dav- 
ies,  3  Story,  768. 

28  Lawrence  v.   Smith,  Jacob.  471. 

29  YValcot  v.  Walker,  7  Ves.  1  ; 
Stoekdale  v.  Onwhyn,  5  Barn.  &  Cr. 
173;   Murray  v.  Benbow,  6  Petersd. 


.s.sC 


INJUNCTIONS. 


[§  279 


as  unworthy  of  protection  Byron's  "Cain,"30  have  been  severely 
criticised,31  and  it  is  not  likely  that  they  would  be  fully  sus- 
tained if  the  question  should  be  raised  in  the  United  States ;  al- 
though in  a  case  in  the  Federal  courts  Judge  Deady  assigned 
as  one  among  several  reasons  for  refusing  to  enjoin  an  un- 
authorized representation  of  "The  Black  Crook,"  that  it  "only 
attracts  attention  as  it  panders  to  a  prurient  curiosity  or  an 
obscene  imagination  by  very  questionable  exhibitions  and  at- 
titudes of  the  female  person."  32  It  has  been  held :  that  the  fact 
that  a  complainant  is  a  member  of  an  illegal  combination, 
formed  to  restrain  interstate  commerce,  is  no  defense  to  a  suit 
for  the  infringement  of  a  copyright.33  Injunctions  to  enjoin 
the  performance  of  dramatic  or  musical  compositions  may  be 
served  and  enforced  by  contempt  proceedings,  anywhere  in  the 
United  States  ;  and  the  defendant  may  move  to  dissolve  the  same 
in  any  Circuit  in  which  he  is  engaged  in  such  performance ; 34 
and  suits  for  such  injunctions  may  be  instituted  in  any  district 
where  the  defendant  or  his  agent  may  be  found.35 

§  279.  Injunctions  to  restrain  the  unlawful  use  of  trade- 
marks. Injunctions  to  restrain  the  use  of  trade-marks  by  others 
than  their  owners  are  granted  by  courts  of  equity,  it  has  been 
said,  partly  to  prevent  the  fraud  upon  the  public  which  would 
otherwise  be  perpetrated,  and  partly  on  account  of  the  difficulty 
of  estimating  the  injury  which  would  be  caused  the  owner  of  a 
trade-mark  from  its  improper  use.1  The  former  ground  of  the 
interference  of  the  court  has,  however,  been  expressly  repud- 
iated by  a  great  judge,  Lord  Westbury,  who  said,  when  Lord 


Abr.  559 ;  Lawrence  v.  Smith,  Jacob, 
471;  Soutbey  v.  Sherwood,  2  Meriv. 
435.  But  see  Burnett  v.  Chetwood, 
2  Meriv.  441. 

30  Murray  v.  Benbow,  6  Petersd. 
Abr.  559. 

31  Campbell's  Lives  of  the  Lord 
Chancellors,  ch.  ccxiii;  Drone  on 
Copyright,  181-196. 

32  Martinetti  v.  Maguire,  1  Deady, 
216,  223. 

33Scribner  v.  Straus,  130  Fed. 
389. 

34  35  St,  at  L.  1075.  §  25,  Pierce's 
Fed.  Code  Supp.  §   1587. 


35  Ibid.  §  35,  Pierce  Supp.  §  1589. 

§  279.  1  Perry  v.  Truefit,  6  Beav. 
66,  73:  Croft  v.  Day.  7  Beav.  84: 
Leather  C.  Co.  v.  American  L.  C. 
Co.,  10  Jur.  (N.  S.)  81;  Walton  v. 
Crowley,  3  Blatchf.  440;  Shaw 
Stocking  Co.  v.  Mack.  12  Fed.  707. 
See  High  on  Injunctions,  (4th  ed. ) 
§§  1063-1084. 

It  was  held  that  Vassar  College 
had  no  such  property  right  in  its 
name  and  seal  as  to  prevent  the  use 
of  the  same  in  advert  i  somen  ts  of 
candy.  Vassar  College  v.  Loose- 
Wiles  Biscuit  Co.,  197  Fed.  982. 


§    279].  IN  TRADEMARK  CASES.  887 

Chancellor,  in  delivering  the  judgment  in  a  leading  case:  "Im- 
position upon  the  public  becomes  the  test  of  the  property  in  the 
trade-mark  having  been  invaded  and  injured,  but  not  tlu- 
ground  on  which  the  court  rests  its  jurisdiction."2  "Trade- 
marks are  of  two  kinds.  They  may  consist  of  pictures  or  sym- 
bols or  a  peculiar  form  and  fashion  of  label,  or  simply  of  a  word 
or  words,  which,  in  whatever  form  printed  or  represented,  con- 
tinue to  be  the  distinguishing  mark  of  the  manufacturer  who 
has  appropriated  it  or  them,  and  the  name  by  which  his  pro- 
ducts are  known  and  dealt  in."  3  "Where  the  trade-mark  con- 
sists of  a  picture  or  symbol,  or  in  any  peculiarity  in  its  appear- 
ance of  the  label,  the  imitation  must  be  such  as  to  amount  to  a 
false  representation,  liable  to  deceive  the  public,  and  enable 
the  imitator  to  pass  off  his  goods  as  those  of  the  person  whose 
trade-mark  is  imitated.  And  when  there  is  such  an  absence  of 
resemblance  that  ordinary  attention  would  enable  customers  to 
discriminate  between  the  trade-marks  of  different  parties,  the 
court  will  not  intterfere." 4  "But  where  the  trade-mark  con- 
sists of  a  word,  it  may  be  used  by  the  manufacturer  who  has 
appropriated  it,  in  any  style  of  print,  or  in  any  form  of  label, 
and  its  use  by  another  is  unlawful.  The  statute"  of  Xew  York 
"requires  only  that  the  imitation  should  be  either  the  same  to 
the  eye,  or  in  sound  to  the  ear,  as  the  genuine  trade-mark,  and 
this  accords  with  the  authorities." 5  "To  make  an  exclusive 
right  to  use  a  name  or  symbol  as  a  trade-mark,  such  use  must  be 
new ;  if  ever  before  used  as  applicable  to  a  like  article,  it  can- 
not be  exclusively  appropriated.  If  the  article  is  known  to 
commerce  in  general,  by- the  term  claimed,  as  a  trade-mark,  the 
claim  is  ill-founded.  If  the  term  employed  indicates  the  na- 
ture, kind,  or  quality  of  the  article,  instead  of  showing  its 
origin,  an  exclusive  right  to  its  use  is  not  maintainable," 6 
In  accordance  with  the  maxim  that  he  who  seeks  equity  must 
come  with  clean  hands,  it  is  well  established  that,  if  the  trade- 
mark for  which  protection  is  sought  contains  representations 

2  Leather   C.   Co.   v.   American   L.       hams,   82   N.   Y.   519,   523,   37    Am. 
C.  Co.,  10  Jur   (N.  S.)    81.     But  see        Rep.  589. 

the   language   of   Coxe,  J.,    in    Shaw  4  Ibid. 

Stocking  Co.  v.  Mack,  12  Fed.   707,  B  It>id. 

710.  6  Van  Beil  v.  Prescott    (The  Rye 

3  Judge  Rapallo  in  Hier  v.  Abra-  &   Rock   Case),  82  X.  Y.  630. 


888  injunctions.  ._['§  279 

calculated  to  deceive  the  public,  an  injunction  will  be  denied 
the  plaintiff.7  An  act  of  Congress  allowing-  suits  to  enjoin  the 
use  of  trade-marks  to  be  brought  in  a  Federal  court  against 
a  citizen  of  the  same  State  as  the  complainant,  was  held  uncon- 
stitutional.8 The  Act  of  March  2,  1907,  gives  the  Federal 
courts  jurisdiction  of  such  a  suit  when  the  plaintiff  has  regis- 
tered his  trade-mark  for  use  in  commerce  with  foreign  nations, 
or  among  the  several  States,  or  with  Indian  tribes ;  provided 
he  is  domiciled  within  the  territory  of  the  United  States,  or 
resides  in,  or  is  located  in,  any  foreign  country  which  affords 
similar  privileges  to  the  citizens  of  the  United  States;  and 
provided,  at  least,  that  the  defendant  has  followed  the  trade- 
mark in  the  course  of  commerce  among  the  several  States,  or 
with  a  foreign  nation,  or  with  the  Indian  tribes.9  The  con- 
stitutionality of  this  act  is  an  open  question.10  This  statute 
does  not  give  the  Federal  courts  jurisdiction  of  a  suit  between 
citizens  of  the  same  State  to  enjoin  unfair  competition  in 
trade,  where  the  complainant  has  no  valid  and  exclusive  trade- 
mark.11 A  delay  of  eighteen  months  before  an  application  for 
a  preliminary  injunction  against  unfair  competition  was  held 
sufficient  laches  to  defeat  the  motion.12  A  disuse  of  complain- 
ant's trade-mark  before  suit  will  not  defeat  the  complain- 
ant's right  to  an  injunction,  when  the  defendant  continued  to 
use  the  trade-mark  sometime  after  notice  to  desist,  and  in  the 
suit  contest  the  complainant's  exclusive  right  to  the  same.13 
The  writ  may  contain,  in  addition  to  an  injunction  against  the 
infringement  of  a  trade-mark,  a  prohibition  of  the  use  of  any 
mark  "so  similar  to  complainant's  as  to  be  likely  to  deceive 
purchasers."14 

'Leather   C.   Co.   v.   American   L.  io  Elgin   Nat.    Watch   Co.   v.   Illi- 

C.  Co.,   11   H.  L.  C.  523:   s.  c.  in  a  nois  Tr.  C.  Co.,  179  U.  S.  665,  45  L. 

lower    court,    10   Jur.    (X.    S.)     81;  ed.   365. 

Fowle  v.  Spear.  7  Penn.  L.  J.  176;  n  Ibid. 

Heath   v.   Wright,  3  Wall.  Jr.  141;  12  C.  0.  Burns  Co.  v.  W.  F.  Burns 

Ginter    v.    Kinney    Tobacco    Co.,    12  Co..  118  Fed.  944. 

IV, 1.   782.     See  supra,   §   79.  13  Thomas    G.    Plant    Co.    v.    May 

8  Trade-Mark  Cases.  100  U.  S.  82,  Mercantile  Co.,  153  Fed.  229. 

25  L.  ed.  550.  14  Capewell     Horse     Nail     Co.    v. 

»34   St.   at  L.   168.   §§   1,  16,  17;  Green,  C.  C.  A.,  188  Fed.  20. 
Pierce    Fed.    Code,    §§    8804,    8822, 
8823;    supra,   §   87. 


281] 


TO  PREVENT  BREACHES  OF  CONTRACT. 


889 


§  280.  Injunctions  to  prevent  the  opening  of  letters. 
Injunctions  may  be  granted  to  restrain  the  opening  of  business 
letters.1 

§  281.  Injunctions  to  compel  the  performance  or  pre- 
vent the  breach  of  contracts  not  affecting  land.  The  per- 
formance of  a  contract  not  affecting  lands  will  be  enforced  in 
equity  by  means  of  an  injunction  when,  and  only  when,  a  judg- 
ment for  damages  would  be  no  adequate  remedy  for  its  breach ;  * 
and  it  does  not  require  a  purely  personal  act  which  it  would  be 
impossible  for  the  court  to  enforce,2  or  continue  acts  for  an  in- 
determinate term,  which  will  require  the  constant  supervision 
by  the  court  subsequent  to  the  decree.3  The  inadequacy  of  the 
remedy  at  law  which  will  entitle  one  to  specific  performance  of 
a  contract  may,  it  has  been  held,  be  proved  by  the  fact  that  the 
damages  in  money  cannot  be  ascertained,4  In  some  cases  an 
injunction  may  be  obtained  to  restrain  a  defendant  from  vio- 
lating a  negative  promise  contained  in  a  contract,  although  the 
court  has  no  power  specifically  to  enforce  the  affirmative  prom- 
ises contained  therein.5  Thus,  when  opera  singers  of  extra- 
ordinary talent  had  contracted  to  sing,6  or  dancers  of  extraordi- 
nary character  had  contracted  to  dance,7  at  the  plaintiff's  theatre 
and  nowhere  else,  or  a  ball  player  had  contracted  to  give  his 


§  280.  lSchelle  v.  Brackell,  11 
W.  R.  796;  David  Kennedy  Corp.  v. 
Kennedy,  165  X.  Y.  353,  359. 

§  281.  1  Buxton  v.  Lister,  3  Atk. 
383;  Robinson  v.  Cathcart,  2 
Cranch  C.  C.  590;  Tayloe  v.  Mer- 
chants' Fire  Ins.  Co.,  9  How.  390, 
13  L.  ed.  187;  Very  v.  Levy,  13  How. 
345.  14  L.  ed.  173. 

2  Clarke  v.  Price,  2  Wilson  Ch. 
Cas.  157;  Mair  v.  Himalaya  T. 
Co.,  L.  R.  1  Eq.  411. 

3  Sewerage  and  Water  Board  v. 
Howard.  C.  C.  A.,  175  Fed.  555. 

4  Adderley  v.  Dixon.  1  Sim.  &  Stu. 
007;  Sullivan  v.  Tuck,  1  Md.  Cli. 
59;   Finley  v.  Aiken,  1  Grant's  Cases 

(Pa.)    83;   Bispham's  Eq.,  §  369; 

5  Montgomery  Light  &  Power  Co. 
v.    Montgomery    Traction    Co..     191 


Fed.  657,  where  a  street  railway 
company  was  enjoined  from  refus- 
ing to  perform  a  contract  binding  it- 
self to  take  from  the  plaintiff,  at  an 
agreed  price,  all  the  electric  power 
which  it  required  for  a  term  of 
years. 

6  Lumley  v.  Wagner,  1  De  G..  M. 
&  G.  604;  McCaull  v.  Braham,  16 
Fed.  37.  It  is  not  a  prerequisite  to 
the  injunction  that  the  defendants 
are  the  stars  of  complainant's  enter- 
tainment or  that  the  entertainment 
would  be  stopped  because  of  their 
withdrawal.  Comstock  v.  Lopoko- 
wa,  190  Fed.  599.  See  High  on  In- 
junctions.   (4th  ed.)    §§  1163-1 164c. 

7  Comstock  v.  Lopokowa.  190  Fed. 
599.  See  High  on  Injunctions,  (4th 
ed.)     §§    11 63-1 164c. 


890 


INJUNCTIONS. 


[§   281 


exclusive  services  to  a  baseball  club;8  injunctions  have  been 
granted  to  restrain  them  from  performing  in  rival  establish- 
ments, although  they  could  not  be  compelled  to  sing,  dance,  or 
play  for  the  plaintiffs.  An  injunction,  however,  will  not  issue 
to  prevent  a  similar  breach  of  his  contract  of  employment  by  a 
person  whose  abilities  are  not  so  extraordinary  that  his  place 
cannot  be  filled,9  nor  when  the  contract  is  not  mutual ; 10  nor 
when  the  complaint  shows  that  the  damages  for  the  breach  of 
contract  might  easily  be  liquidated.11  The  rule  has  been  thus 
stated  by  Judge  Lowell :  "I  think  the  fair  result  of  the  later 
cases  may  be  thus  expressed :  If  the  case  is  one  in  which  the 
negative  remedy  of  injunction  will  do  substantial  justice  be- 
tween the  parties,  by  obliging  the  defendant  either  to  carry  out 
his  contract  or  lose  all  benefit  of  the  breach,  and  the  remedy  at 
law  is  inadequate,  and  there  is  no  reason  of  policy  against  it, 
the  court  will  interfere  to  restrain  conduct  which  is  contrary 
to  the  contract,  although  it  may  be  unable  to  enforce  a  specific 
performance  of  it.'' 12  But  where  the  affirmative  promise  can- 
not be  specifically  enforced,  the  court  will  not  import  into  it  a 
negative  covenant,  neither  expressly  nor  by  a  fair  implication 
contained  therein.13  So  an  employee  may  be  enjoined  from 
carrying  away  documents  containing  trade  secrets,14  or  from 


8  Philadelphia  Ball  Club  v.  Lajoie, 
202  Pa.  210,  58  L.R.A.  227,  90  Am. 
St.   Rep.   027.   51   Atl.   973. 

9  Ibid.:  Metropolitan  Ex.  Co.  v. 
Ewing,  42  Fed.  3  98;  Burney  v. 
Ryle,  91  S.  E.  701,  17  S.  E. 
980  (an  insurance  agent):  John- 
ston v.  Hunt.  66  Hun,  (X.  Y.),  504: 
Strowbridge  L.  Co.  v.  Crane,  35  X. 
Y.  State  Rep.  473  (a  designer  of 
Lithographs;)  ;  Cort  v.  Lassard,  18 
Or.  221.  6  L.R.A.  653  (an  acrobat). 
§§    143.  191.  sui>ra. 

10  Lerner  v.  Tetrazz.ini.  71  Misc. 
(X.  Y. )  182;  High  on  Injunctions, 
(4th  ed.)    §   1109a. 

11  Sewerage  and  Water  Board  v. 
Howard.  C.  C.  A..  175  Fed.  555. 

12  Singer    Co.    v.     Union    Co.,     1 


Holmes,  253,  258.  See  also  God- 
dard  v.  Wilde,  17  Fed.  845;  W.  U. 
Tel.  Co.  v.  Union  Pac.  Ry.  Co.,  3 
Fed.  423:  W.  U.  Tel.  Co.  v.  St. 
Joseph  &  W.  Ry.  Co.,  3  Fed.  430; 
Met.  El.  Supply  Co.  v.  Ginder 
(]901).  L.  R.  2  Ch.  799;  Harrison 
v.  Glucose  Sugar  Ref.  Co..  C.  C.  A.r 
58  L.R.A.  915.  116'  Fed.  304:  Dela- 
ware L.  &  \V.  R.  Co.  v.  Switchmen's 
Union.  158  Fed.  541. 

13  Clarke  v.  Price.  2  Wilson  Ch. 
C.  157:  Pickering  v.  Bishop  of  Ely. 
2  Y.  &  C.  Ch.  C.  249:  Johnson  v. 
S.  &  B.  Ry.  Co.,  3  De  G.,  M.  &  G. 
914:  Bispham's  Eq„  §  464;  Kerr 
on  Injunctions.  524. 

14  Union  Switch  &  Signal  Co.  v. 
Sperry,  169   Fed.  926. 


§    283]  AUTHORIZED  BY  STATUTE.  891 

disclosing  to  others  the  trade  secrets  of  his  master.15  Where  ir- 
reparable injury  would  be  otherwise  caused,  an  injunction  may 
be  granted  to  prevent  a  stranger  from  inducing  a  party  to  a 
contract  to  violate  the  same.16 

§  282.  Injunctions  to  compel  the  delivery  of  personal 
property  tortiously  withheld.  Under  very  extraordinary 
circumstances,  equity  will  interfere  to  compel  by  injunction 
the  delivery  or  return  of  letters,  documents,  or  other  articles  of 
such  a  unique  character  that  it  would  be  impossible  to  replace 
them,  when  they  are  tortiously  withheld   from  their  rightful 


owners.1 


§  283.  Injunctions  authorized  by  statute.    The  statutes  of 
the  United  States  also  authorize  an  injunction  in  the  follow- 
ing cases,  amongst  others,  besides  those  arising  from  infringe- 
ments of  patents  and  copyrights :     "Any  person  who  considers 
himself  aggrieved  by  any  warrant  of  distress  issued  under  the 
provisions  of  the  statutes  authorizing  one  to  be  issued  by  the 
Solicitor  of  the  Treasury  against  an  officer  in  default  for  not 
accounting  for  and  paying  over  public  money  received  by  him, 
"may  prefer  a  bill  of  complaint  to  any  district  judge  of  the 
United  States,  setting  forth  therein  the  nature  and  extent  of 
the  injury  of  which  he  complains;   and  thereupon  the  judge 
may  grant  an  injunction  to  stay  proceedings  on  such  warrant 
altogether,  or  for  so  much  thereof  as  the  nature  of  the  case 
requires.     But  no  in  junction  shall  issue  till  the  party  applying 
for  it  gives  bond  with  sufficient  security,  in  a  sum  to  be  pre- 
scribed by  the  judge,  for  the. performance  of  such  judgment  as 
may  be  awarded  against  him ;  nor  shall  the  issuing  of  such  in- 
junction in  any  manner  impair  the  lien  produced  by  the  issuing 
of  the  warrant.     And  the  same  proceedings  shall  be  had  in  such 
injunction  as  in  other  cases,  except  that  no  answer  shall  be  nec- 

15  Ibid.;      High     on     Injunctions,  §  282.  l  Pusey  v.  Pusey,   1  Vern. 

<4th  ed.)    §§   19.  084,  1108.  273;   Duke  of  Somerset  v.  Cookson. 

l6Beekman  v.  Marstefs;  1:95  Mass.  3  P.  Wins.  389;  Clarke  v.  White,  12 

205.   11   L.R.A.(N.S.)    201,   122   Am.  Pet.  178.  9  L.  ed.   104G:   Prince  Al- 

St.  Rep.  232,  80  N.  E.  817,  11   Ann.  hert  v.  Strange,  1  Macn.  $  C  2.").  42: 

Cas.  332;  Am.  Law  Book  Co.  v.  Ed-  McGowin  v.   Remington,  12  Pa.   St. 

ward  Thompson  Co..  Bishoff,  L,  X.  56. 
Y.    Special   Term.    1907.   The   Lloyd 
Sabaudo  v.  Cubicciotti,  159  Fed.  101. 
See  §  276,  supra. 


892 


INJUNCTIONS. 


[§  2S3 


essary  on  the  part  of  the  United  States ;  and  if,  upon  dissolving 
the  injunction,  it  appears  to  the  satisfaction  of  the  judge  that 
the  application  for  the  injunction  was  merely  for  delay,  the 
judge  may  add  to  the  lawful  interest  assessed  on  all  sums  found 
due  against  the  complainant  such  damages  as,  with  such  lawful 
interest,  shall  not  exceed  the  rate  of  ten  per  centum  a  year. 
Such  injunction  may  be  granted  or  dissolved  by  the  district 
judge  either  in  or  out  of  court."  1  "When  the  district  judge 
refuses  to  grant  an  injunction  to  stay  proceedings  on  a  distress 
warrant,  as  aforesaid,  or  dissolves  such  injunction  after  it  is 
granted,  any  person  who  considers  himself  aggrieved  by  the 
decision  in  the  premises  may  lay  before  the  circuit  justice,  or 
circuit  judge  of  the  circuit  within  which  such  district  lies,  a 
copy  of  the  proceedings  had  before  the  district  judge;  and 
thereupon  the  circuit  justice  or  circuit  judge  may  grant  an  in- 
junction, or  permit  an  appeal,  as  the  case  may  be,  if,  in  his 
opinion,  the  equity  of  the  case  requires  it.2  "Whenever  an  as- 
sociation against  which  proceedings  have  been  instituted,  on  ac- 
count of  an  alleged  refusal  to  redeem  its  circulating  notes  as 
aforesaid,  denies  having  failed  to  do  so,  it  may,  at  any  time 
within  ten  days  after  it  has  been  notified  of  the  appointment 
of  an  agent,  as  provided  in  section  fifty-two  hundred  and 
twenty-seven"  of  the  Revised  Statutes  of  the  United 
States,  "apply  to  the  nearest  District,  or  Territorial 
court  of  the  United  States  to  enjoin  further  proceed- 
ings in  the  premises;  and  such  court,  after  citing  the  Comptrol- 
ler of  the  Currency  to  show  cause  why  further  proceedings 
should  not  be  enjoined,  and  after  the  decision  of  the  court  or 
finding  of  a  jury  that  such  association  has  not  refused  to  redeem 
its  circulating  notes,  when  legally  presented,  in  the  lawful 
money  of  the  United  States,  shall  make  an  order  enjoining  the 
Comptroller,  and  any  receiver  acting  under  his  direction,  from 
all  further  proceedings  on  account  of  such  alleged  refusal."3 
A  district  attorney  of  the  United  States  acting  under  the  direc- 
tion of  the  Attorney-General  may  upon  a  petition  obtain  an  in- 
junction to  restrain  a  contract,  combination  in  the  form  of  a 
trust  or  otherwise,  or  a  conspiracy  in  restraint  of  trade  or  com- 


§  283.     1  U.  S.  R.  S.,  §  303G. 
8TJ.  8.  E.  S.,  §  3637. 


»U.  S.  R.  S-  §  5237. 


284} 


WHEN  DENIED. 


893 


meree,  or  a  monopoly  of  any  part  of  trade  or  commerce  among 
the  several  States  or  with  foreign  nations.4  Compliance  with 
the  interstate  commerce  act  may  also,  in  certain  cases,  be  com- 
pelled by  an  injunction.5 

§  284.  When  injunctions  will  not  issue.  As  a  general 
rule,  it  may  be  stated  that  an  injunction  will  not  issue  at  the 
prayer  of  one  who  will  suffer  no  pecuniary  injury  from  the 
act  which  he  wishes  to  prevent.1  Thus,  one  will  not  lie  granted 
at  the  suit  of  a  State  to  prevent  the  invasion  of  a  purely  political 
right;2  or  of  adjacent  property  owners  and  church  members  to 
prevent  a  railroad  from  outraging  their  religious  feelings  by 
running  cars  upon  Sunday  ;  °  nor  at  the  suit  of  a  minister  of  the 
gospel  to  prevent  the  use  of  his  building  for  theatrical  pur- 
poses, under  a  lease  the  validity  of  which  he  dispute*.4  The 
Emperor  of  Austria  and  King  of  Hungary,  however,  was  al- 
lowed an  injunction  to  prevent  Kossuth  and  his  associates  from 
manufacturing  in  England  paper  currency  not  purporting  to  be 
issued  by  imperial  authority,  intended  for  circulation  in  Hun- 
gary, upon  the  ground  that  his  property  rights  were  thereby 
injured,5  and  a  bill  was  sustained  when  tiled  by  the  consul  of 
Austria  and  Hungary,  to  restrain  a  beneficial  association  from 
using  the  name  of  the  Emperor  of  those  countries  as  a  part  of 
its  corporate  name,  and  from  the  use  of  that  Emperor's  portrait 
as  a  part  of  its  advertising  literature,  in  order  fraudulently  to 


*26  St.  at  L.,  ch.  647,  p.  209;  28 
St.  at  L.,  p.  570;  U.  S.  v.  Trans- 
Missouri  Freight  Ass'n,  106  U.  S. 
290,  41  L.  ed.  1007;  U.  S.  v.  Joint 
Trallic  Ass'n,  171  U.  S.  505,  43  L. 
«d.  259.;  Addyston  P.  &  S.  Co.  v.  U. 
S.,  175  U.  S.  211,  44  L.  ed.  136:  U. 
S.  v.  Alger,  62  Fed.  824.  It  lias 
been  held  that  this  statute  applies 
to  a  strike  intended  to  prevent  the 
operation  of  a  railroad  used  for  in- 
terstate commerce.  Thomas  v.  Cin- 
cinnati, X.  O.  &  T.  P.  Ry.  Co.,  62 
Fed.  803,  821;  U.  S.  v.  Alger,  62 
Fed.  824;  U.  S.  v.  Elliott.  62  Fed. 
801;  U.  S.  v.  Workingmen's  A.  C. 
of  N.  O.,  26  L.R.A.  15S,  54  Fed.  904; 
In  re  Lennon,  166  U.  S.  548,  41   L. 


ed.  1110.  But  see  U.  S.  v.  Patter- 
son, 55  Fed.  605,  §  276.  supra.  It 
was  held  that  an  injunction  will  not 
issue  to  compel  obedience  to  4j  3  of 
this  Act.  Central  Stockyards  Co.  \ . 
Louisville  &  N.  R.  Co.,  112  Fed.  S23. 

5  24  St.  at  L.,  380. 

§  2S4.  I  High  on  Injunctions;  § 
20. 

SGeorgia  v.  Stanton,  (i  Wall.  50, 
18   L.  ed.   721. 

3  Sparhawk  v.  Union  P.  R.  Co., 
54  Pa.  St.  401. 

*Bodwell  v.  Crawford,  26  Kan. 
292.  41)   Am.   Hep.  306. 

5  Emperor  of  Austria  v.  Pay.  2 
Giff.  628;  s.  c.  on  app<al.  3  De  G., 
P.  &  .1.  217. 


894 


INJUNCTIONS. 


[§  284 


induce  his  subjects  who  resided  in  the  United  States,  to  believe 
that  the  association  was  conducted  under  the  customs  of  their 
iiwn  country,  and  that  their  Emperor  was  identified  with  the 
same  and  a  patron  thereof.6  An  injunction  will  not  issue  to 
prevent  an  injury  which  is  not  actually  threatened  to  the  com- 
plainant.7 Thus  an  injunction  will  not  be  granted  to  prevent 
an  injury  to  a  navigable  stream,  at  the  suit  of  an  individual 
who  is  not  engaged  in  navigating  the  same;8  nor,  at  the  suit  of 
a  coupon  holder  who  is  not  liable  to  the  payment  of  taxes  to  a 
State,  to  prevent  the  State  officers  from  refusing  to  receive  his 
coupons,  when  tendered  by  others  to  whom  he  has  agreed  to 
assign  them  for  the  payment  of  their  taxes,  in  pursuance  of  a 
contract  made  by  the  State  with  its  creditors  and  their  succes- 
sors.9 "No  court  sits  to  determine  questions  of  law  in  thesi."  10 
A  threat  of  irreparable  injury  to  a  right  actually  enjoyed  and 
exercised  by  the  complainant,  or  acts  indicating  a  preparation 
to  commit  such  a  wrong,  are,  however,  always  a  ground  for  the 
issue  of  an  injunction.11  The  Circuit  Court  of  the  Southern 
District  of  New  York  has  refused  to  grant  a  preliminary  injunc- 
tion to  restrain  an  obstruction  to  navigation  in  a  navigable  chan- 
nel coming  up  from  the  Bay  of  New  York,  caused  by  a  structure 
projecting  from  the  New  Jersey  shore.12  An  injunction  cannot 
be  issued  against  the  United  States ; 13  nor  against  an  officer  to 
interfere  with  the  exercise  of  his  discretion :  14  nor  against  an 


6  Von  Tliodorovich  v.  Franz  Josef 
Beneficial  Ass'n,  154  Fed.  911. 

7  Slessinger  v.  Buckingham,  17 
Fed.  454. 

8  Spooner  v.  McConnell,  1  Mc- 
Lean, 337.  See  also  Mason  v.  Roll- 
ins, 2  Biss.  99.  Cf.  Works  v.  Junc- 
tion R.  Co.,  5  McLean,  425. 

9  Virginia  Coupon  Cases,  Marye 
v.  Parsons,  114  U.  S.  325,  29  L.  ed. 
205. 

10  Matthews,  J.,  in  Virginia  Cou- 
pon Cases,  Marye  v.  Parsons.  114 
U.  S.  325.  330.  29  L.  ed.  205,  206. 
An  injunction  against  the  enforce- 
ment of  an  order  of  a  Railroad  Com- 
mission was  denied  where  the  Com- 
mission had  suspended  the  operation 


of  the  order.  Grand  Trunk  Ry.  Co. 
v.  Michigan  R.  R.  Com.,  198  Fed. 
1009. 

H.St.  Louis  v.  Knapp  Co.,  104 
U.  S.  G58,  20  L.  ed.  883;  Sherman 
v.  Nutt,  35  Fed.  149;  Butz  Thermo- 
El.  Reg.  Co.  v.  Jacobs  El.  Co.,  3G 
Fed.  191;  McArthur  v.  Kelly,  5 
Ohio,  139;  Frearson  v.  Loe,  L.  R.  9 
Ch.  1).  48.  See  also  Piek  v.  C.  &  N. 
\V.  Ry.  Co.,  G  Biss.  177. 

12  Atlantic  D.  Co.  v.  Bergen  Xeck 
Ry.  Co.,  44  Fed.  208. 

13  U.  S.  v.  McLemore.  4  How.  286, 
11  L.  ed.  977;  Hill  v.  U.  S.,  9  How. 
386.  13  L.  ed.  185. 

14  Mississippi  v.  Johnson,  4  Wall. 
475,  IS  L.  ed.  437 ;  Walker  v.  Smith, 


§  284] 


WHEN  DENIED. 


895 


officer  of  the  United  States  to  prevent  the  infringement  of  a 
patent  by  him  while  in  the  exercise  of  his  official  duties.15  The 
Revised  Statutes  provide  that  "Xo  suit  for  the  purpose  of  re- 
straining the  assessment  or  collection  of  any  tax"  imposed  by 
the  United  States  for  purposes  of  internal  revenue, "  shall  be 
maintained  in  any  court."16  Under  this  provision,  it  has  been 
held  that  wherever  a  tax  is  imposed  by  a  person  in  office  having 
authority  over  the  assessment  of  taxes  for  the  United  States, 
and  acting  under  color  of  a  statute,  no  injunction  will  be  issued 
to  restrain  its  collection,  no  matter  how  erroneous  the  assess- 
ment may  be,  and  although  the  person  against  whom  the  assess- 
ment is  made  does  not  own  the  property  taxed.17  "It  is  suffi- 
cient that  a  statute  has  authorized  the  assessor  to  entertain  the 
general  subject  of  taxation;  that  it  was  in  fact  entertained,  and 
a  judgment,  lawful  or  unlawful,  was  rendered  concerning  it."  18 
It  seems  that  the  unconstitutionality  of  the  statute  imposing  the 
tax  will  not  authorize  the  issue  of  an  injunction;19  but  it  has 


21  How.  579,  16  L.  ed.  223;  McEl- 
rath  v.  Mvlntosh,  1  Law  R.  (N.  S.) 
309;  Warner  V.  S.  Co.  v.  Smith.  ]G5 
U.  S.  28,  41  L.  ed.  021;  Smith  v. 
Reynolds,  9  D.  C.  App.  287.  106  U. 
S.  717,  41  L.  ed.  1180.  An  injunc- 
tion has  been  issued  to  restrain  the 
Secretary  of  the  Interior  from  the 
commission  of  an  act  beyond  his 
jurisdiction  which  would  cause  an 
irreparable  injury  to  the  plaintiff. 
Noble  v.  Union  R.  L.  R.  Co.,  147 
U.  S.  165,  37  L.  cd.  123;  Cf.  V.  S.  v. 
Xourse,  9  Pet.  S,  9  L.  ed.  31;  Kir- 
wan  v.  Murphy,  C.  C.  A.,  83  Fed. 
275,  s.  c.  49  U.  S.  App.  659.  It  has 
been  held  that  a  State  court  has  no 
power  to  enjoin  an  officer  of  the 
United  States.  People  ex  rel.  Brew- 
er v.  Kidd.  23  Mich.  440.  It  has 
been  held  that  an  injunction  will 
not  is*sue  to  restrain  the  Commis- 
sioner of  Patents  from  issuing  let- 
ters-patent. See  .kii pr<i,  §§  95,  100; 
I  Hi  ni;  worth    v.    Atha,    42    Fed.    141. 

15.|:mies    v.    Campbell.    104    I".    S. 
350,  26  L.  ed.  780;  Ilollister  v.  Bene- 


dict &  B.  Mfg.  Co.,  113  U.  S.  59,  67, 
28  L.  ed.  901.  903;  Belknap  v. 
Schild,  161  U.  S.  10.  40  L.  ed.  599; 
supra,  §  95;   infra,  §  670. 

16  f.  S.  R.  S.,  §  3224.  It  has 
been  held  that  a  mandatory  injunc- 
tion requiring  a  collector  of  inter- 
nal revenue  to  accept  an  export 
bond  for  spirits  in  a  warehouse  and 
to  allow  their  withdrawal  for  ex- 
port, without  payment  of  taxes,  is- 
in  effect  a  bill  to  restrain  the  col- 
lection of  internal  revenue  and  can- 
not be  granted.  Miles  v.  Johnston,. 
59    Fed.   38. 

17  Kensett  v.  Stivers.  10  Fed.  517;. 
Pullan  v.  KinsiiiL'cr.  2  Abb.  V.  S. 
94:  Rowland  v.  Soule.  Deafly,  413: 
Delaware  R.  to.  v.  Prettyinan,  17 
Int.  Rev.  Rec.  W :  Alkan  v.  Bea'if,  23 
Int.  Rev.  Rec.  351  ;  Kissinger  v. 
Rean.  7  Riss.  00:  U.  S.  v.  Black,  11 
Blatehf.  538.  Rut  sec  Frayser  v. 
Russell.  :',  Hughes',  227. 

18  Fmnions.  J.,  in  Rullan  v.  Kin- 
Bihger,  2  Abb.  U.  S.  1)4,  99. 

19  Robbing     v.     Freehold.     14     Int. 


896 


INJUNCTION*. 


[§  284 


been  held  that  a  bill  to  restrain  a  trustee  from  voluntarily  mak- 
ing a  return  of  his  income  and  from  paying  an  unconstitutional 
income  tax  is  not  within  the  prohibition  of  the  statute.20  An 
injunction  cannot  issue  against  a  State  at  the  suit  of  a  citizen 
of  another  State  or  of  a  foreign  State.21  Xor  can  a  mandatory 
injunction  issue  against  an  officer  of  a  State  so  as  to  compel  the 
action  of  the  State  against  its  expressed  will.22  But  an  officer 
of  a  State  may  be  enjoined  from  an  invasion  of  private  rights 
which  would  cause  irreparable  injury,  when  about  to  act  under 
an  unconstitutional  State  statute.23  As  has  been  said  before, 
an  injunction  will  not  ordinarily  be  granted  to  stay  proceedings 
in  a  State  court.24  In  England,  a  person  may  be  restrained 
from  petitioning  or  applying  to  the  legislature  in  order  to  pro- 
cure the  passage  of  an  act  relating  solely  to  private  interests, 
provided  he  be  under  an  express  or  implied  agreement  not  to 
do  so,  or  his  doing  so  would  amount  to  a  breach  of  trust.25  This 
doctrine  has.  however,  never  been  upheld  in  the  United  States 
ami  in  a  well-considered  case  in  Xew  Jersey  was  expressly  re- 
pudiated.26 The  early  English  cases  held  that  an  injunction 
would  not  issue  to  restrain  the  publication  of  a  slander  or  libel, 
no    matter   how   injurious    it   might   be   to    the   complainant.27 


Rev.  Rec.  28;  Moore  v.  Miller,  5  D. 
C.  App.  413. 

20  Pollock  v.  Farmers'  L.  &  Tr. 
Co.,  157  U.  S.  429,  454,  Go?,,  39  L. 
ed.  759.  844. 

21  Eleventh  Amendment  of  the 
Constitution,  supra,  §   105. 

22  Louisiana  v.  .lumel.  107  U.  S. 
711.  27  L.  ed.  448;  Anton i  v.  Green- 
how,  107  U.  S.  709,  782-784,  27  L. 
ed.  4ii8,  474,  475:  Cunningham  v.  M. 
&  B.  R.  Co..  109  U.  S.  440,  27  L.  ed. 
992;  supra,  §  37.  But  see  MeCauley 
v.  Kellog,  2  Woods,  13. 

23  0sIk.hi  v.  Bank  of  U.  S.,  9 
Wheat.  738.  6  L.  ed.  204;  Davis  v. 
Gray,  16  Wall.  203,  21  L.  ed.  447; 
Board  of  L.  v.  McComh.  92  U.  S. 
531.  23  L.  ed.  023;  Virginia  Coupon 
Cases,  114  U.  S.  209.  29  L.  ed.  185; 
Louisiana  v.  Layarde,  00  Fed.  180; 
Ex   parte,  Young,  209  U.  S.  123,  52 


L.  ed.  714.  See,  however.  In  re  Ay- 
ers,  123  U.  S.  443,  31  L.  ed.  216; 
supra,  S  105. 

24  C.  S.  R.  S..  §  720;  supra, 
§  268;    infra,  §  554. 

25  Ware  v.  (hand  J.  W.  W.  Co., 
2  Russ.  &  M.  470;  Stockton  &  H. 
Ry.  Co.  v.  Leeds  &  Tli.  Ry.  Co.,  2 
Phil.  000;  Heathcote  v.  N.  S.  Ry. 
Co.,  2  Mac.  &  G.  100. 

26  St«»ry  v.  J.  C.  &  B.  P.  P.  R. 
Co.,  1  C.  E.  Green  (10  N.  J.  Eg,), 
13,  S4  Am.  Dec.  134. 

27  Prudential  Aasur.  Co.  v.  Knott, 
L.  R.  10  Ch.  142;  Clark  v.  Freeman, 
11  Beav.  112.  See  also  Brandreth 
v.  Lance,  8  Paige  (X.  Y.),  24,  34 
Am.  Dec.  308 ;  Mauger  v.  Dick,  55 
How.  Pr.  (X.  Y.)  132;  Singer  Mfg. 
Co.  v.  Domestic  S.  M.  Co.,  49  Ga. 
70,  15  Am.  Rep.  674;  Boston  D.  Co. 
v.  Florence  Mfg.  Co.,  114  Mass.  69, 


I  284] 


WHEN   DENIED. 


89' 


Since  the  passage  of  the  Judicature  Act.  however,  such  injunc- 
tions have  been  granted  there  in  order  to  protect  rial  its  of  prop* 
ertv.28  An  injunction  was  denied  when  sought  to  prevent  a 
defendant  from  advertising  that  a  patent  was  void,  and  it  ap- 
peared that  he  honestly  believed  it  to  be  so,  and  published  the 
.statement  for  the  sole  purpose  of  protecting  what  be  believe* I 
to  be  his  rights,29  but  after  the  decree  adjudging  that  a  patent 
was  void,  the  patentee  was  enjoined  from  threatening  complain- 
ant's customers  with  suits  for  an  infringement  thereof.30  A 
patentee  was  enjoined  from  continuing  similar  threats,  which  it 
had  made  for  two  years,  without  beginning  a  suit  for  an  in- 
fringement;31  and  an  injunction  was  granted  against  a  trade 
•circular,  issued  by  the  defendant  to  a  pending  suit  for  in- 
fringement, which  asserted  that  its  device  was  not  an  infringe- 
ment,  that  complainant's  patent  was  invalid,  and  contained 
■cuts  of  prior  devices  which  it  claimed  anticipated  such  patent.32 
Whether  a  Federal  court  will  grant  an  injunction  against  the 
publication  of  an  exaggerated  report  of  a  decision  in  a  patent 
case  is  uncertain,33  but  this  may  be  a  reason  for  dissolving  the 
injunction  against  infringement.34  Whether  a  Federal  court 
will  in  any  case  grant  an  injunction  against  the  publication  of 
a  libel  is  a  disputed  question'.35     It  has  been  held  that  an  in- 


]!»  Am.  Rep.  310;  Whitehead  v.  Kit- 
son.  110  Mass.  484;  Smith  v.  Hut- 
chinson S.  B.  Co.,  110  Mo.  402,  16 
L.R.A.  243,  33  Am.  St.  Rep.  47G. 

28Thorley's  C.  F.  Co.  v.  Massatn. 
L.  R.  6  Ch.  D.  582;  Saxby  v.  Easter- 
brook,  L.  R.  3  ('.  R.  D.  330;  Wren 
v.  Weild,  L.  R.  4  Q.  B.  730.  See  al- 
so brand  Rapids  S.  F.  Co.  v.  Haney 
S.  F.  Co.,  02  Mich.  558,  10  L.R.A. 
721,  31  Am.  St.  Rep.  611,  S.  c.  52 
N.  W.  1000.  Contra,  Marlin  Fire 
Arms  Co.  v.  Shields,  171  X.  Y.  384, 
59  L.R.A.  310:  Boston  Diatite  Co. 
V.  Florence,  etc.,  Co.,  114  Mass.  69, 
10  Am. 'Rep.  310.  See  Harv.  Law 
Review,  XVI,  <>7. 

29  Halsey  v.  Brotherhood,  45  L.  T. 

(X.  S.)    640;    Celluloid   Mfg.   Co.  v. 

Goodyear  D.  V.  Co.,  13  Blatchf.  375; 

Pentlarge    v.    Pentlarge,    14    Repr. 

Fed.   Prac.   Vol.  I.— 57. 


570;    X.   F.    Filter   Co.   v.  Schwartz- 
walder,  58  Fed.  577. 

30  Rubber  Tire  Wheel  Co.  v.  Good- 
year Tire  &  Rubber  Co.,  C.  C.  A., 
183  Fed.  078. 

31  Electric  Renovater  Mfg.  Co.  v. 
Vacuum  Cleaner  Co.,  180   Fed.  754. 

32  Lovell-McConnell  Mfg.  Co.  v. 
Automobile  S.  Mfg.  Co.,  103  Fed. 
658. 

33  H,, 1,1, s  Mfg.  Co.  v.  Gooding.  C. 
C.  A..  1  13  Fed.  615.  it  has  been 
held  that  this  may  be  done  by  a 
motion  in  the  original  case.  Asbes- 
tos Stiingle,  S.  &  S.  Co.  v.  II.  W. 
Johns-Man  vilb-    Co.,    ISO    Fed.    611. 

84  Meyers  v.  Skinner,  186  Fed. 
347. 

35  Hold  that  it  can,  in  Ide  v.  Ball 
Engine  Co.,  31  Fed.  901,  U.  S.  C. 
('.,     S.     D.     Illinois,    by     Allen.    J.; 


898 


INJUNCTIONS. 


[§  2S5 


junction  may  issue  against  the  publication  and  circulation  of 
posters  and  handbills  in  aid  of  a  boycott,36  and  of 
threats  to  commit  an  unlawful  act.37  An  injunction 
will    not     issue     in    the     maintenance     of     a    monopoly     in- 


case 


jurious  to  public  policy;  nor  in  any  other 
when  its  operation  would  be  repugnant  to  public  policy.39 
An  injunction  will  not  issue  when  the  removing-  party  has  a 
plain,  adequate,  and  complete  remedy  at  law.40  The  Revised 
Statutes  of  the  United  States  provide  that  "no  attachment,  in- 
junction or  execution  shall  be  issued  against  a  'national  bank' 
association  or  its  property  before  final  judgment  in  any  suit,  ac- 
tion, or  proceeding  in  any  State,  county,  or  municipal  court."'41 
An  injunction  will  never  be  issued  merely  because  it  will  do 
no  harm.42 

§  285.   Distinction  between  the  judicial  writ  and  the  writ 
remedial.  Injunctions  were  formerly  either  judicial  writs  or 


Emaek  v.  Kane,  34  Fed.  46;  U.  S. 
C.  C,  X.  D.  Illinois,  by  Blodgett, 
J. :  Home  Ins.  Co.  v.  Xobles,  63  Fed. 
642.  Cf.  Palmer  v.  Travers,  20  Fed. 
501,  U.  S.  C.  C,  S.  D.  X  Y.,  by 
Wheeler  J.;  Celluloid  Mfg.  Co.  v. 
Goodyear  D.  V.  Co.,  13  Blatchf.  375, 
U.  S*  C.  C,  S.  D.  X.  Y.,  by  Hunt 
J.;  Lewin  v.  Welsbach  Light  Co., 
81  Fed.  004,  E.  D.  Pa.:  A.  B.  Far- 
quhar  Co.  v.  Xational  Harrow  Co., 
C.  C.  A..  Third  Circuit.,  49  L.R.A. 
755.  102  Fed.  714.  See  Shoemaker 
v.  South,  etc.  Co..  135  Ind.  471,  22 
L.R.A.  332.  Held  that  it  cannot,  in 
Kidd  v.  Horry.  28  Fed.  773,  U.  S. 
C.  C.  E.  D.  Pa.,  by  Bradley  and 
McKennan.  JJ.;  Baltimore  C.  W. 
Co.  v.  Bemis.  29  Fed.  95.  U.  S.  C. 
C.  D.  Mass..  by  Colt  and  Carpenter, 
JJ. :  Fougeres  v.  Murbarger.  44  Fed. 
292.  U.  S.  C.  C,  D.  Indiana,  by 
Woods,  J.:  International  T.  C.  Co. 
v.  (  armichael,  44  Fed.  350.  351.  U. 
S.  ('.  C.  E.  D.  Wis.,  by  Jenkins.  J.; 
Davison  v.  Xational  Harrow  Co., 
103  Fed.  360,  X.  D.  X.  Y. ;  Edison 
v.  Thomas  A.  Edison,  Jr.,  Chemical 


Co.,  128  Fed.  957.  See  Francis  v, 
Flinn.  118  U.  S.  385.  30  L.  ed.  165; 
Kelley  v.  Ypsilanti.  D.  S.  M.  Co.  10. 
L.R.A.  686,  44  Fed.  19.  23. 

36  Casey  v.  Cincinnati  Typ.  Union 
Xo.  3,  12  L.R.A.  193.  45  Fed.  135; 
Coeur  d'Alene  Cons.  >&  Min.  Co.  v. 
Miners'  Union,  19  L.R.A.  382,  51 
Fed.  260;  High,  Injunctions, 
§  1415o. 

37  Continental  Ins.  Co.  v.  Board 
of   Fire   Underwriters,   67   Fed.   310. 

S8  Pullman  P.  C.  Co.  v.  Texas  & 
Pac.  Ry.  Co.,  11  Fed.  025:  s.  c,  4 
Woods.  317;  Foil's  Appeal,  91  Pa. 
St.  434,  438.  30  Am.  Rep.  671.  But 
see  Edison  El.  Lt.  Co.  v.  Sangerman 
El.  Co.,  C.  C.  A.,  53  Fed.  592:  supra. 
§  276. 

89  Bryant  v.  W.  U.  Tel.  Co.,  1? 
Fed.  S25;  Blake  v.  Greenwood-  Cem.r 
14  Blatchf.  342:  Denehey  v.  Harris- 
burg.  2  Pearson    (Pa.).  330.  334. 

40  U.  S.  R.  S.,  §  723;  High,  In- 
junctions, §  28. 

41  U.  S.  R.  S.,  §  5242. 

42  Teller  v.  U.  S.,  C.  C.  A-  11 3: 
Fed.  463. 


§  2S6] 


MANDATORY  INJUNCTIONS. 


80  It 


writs  remedial.  A  judicial  writ  was  a  direction  to  yield  up.  to 
([iiiet,  or  to  continue  the  possession  of  lands,  and  is  said  to  be 
in  the  nature  of  a  writ  of  execution.1  It  was  issued  in  aid  of, 
and  only  after  a  tinal  decree  in  equity;  and,  in  extraordinary 
circumstances,  in  aid  of  a  judgment  at  law.2  Under  the  equity 
rules,  however,  it  is  never  necessary;  and  it  had  previously 
fallen  into  disuse  in  England.     All  other  injunctions  are  writs 

remedial. 

§  286.  Distinction  between  mandatory  and  prohibitory 
injunctions.  Injunctions  are  either  mandatory  of  prohibitory. 
A  mandatory  injunction  is  one  that  commands  a  defendant  to 
perform  a  certain  act  or  acts;  a  prohibitory  injunction,  one  that 
forbids  a  defendant's  doing  a  certain  act  or  acts.  Mandatory 
are  far  less  common  than  are  prohibitory  injunctions.  Those 
most  frequently  issued  have  been  such  as  commanded  a  defend- 
ant to  abate  a  nuisance,1  or  to  deliver  the  possession  of  Ian. I.2 
Tbev  also  have  been  granted  to  compel  the  return  of  letters  and 
other  documents,3  the  delivery  of  personal  property  whose  loss 
could  not  be  compensated  in  damages.4  the  giving  of  collateral 


§  285.  1  Eden  on  Injunctions. 
chs.  i  and  xvii.  pp.  1,  2,  201,  202; 
Beamers'  Orders,  8,  16. 

2  Boult  v.  Blunt,  Cary,  72;  Eden 
on  Injunctions,  202. 

§  28G.  l  Lane  v.  Newdigate,  10 
Yes.  192;  Robinson  v.  Lord  Byron. 
1  Bro.  C.  C  58S;  Honey  v.  Smith, 
1  K.  &  J.  389;  Rankin  v.  Huskis- 
son.  4  Sim.  13;  Bickett  v.  Morris. 
L.  R.  1  II.  L.  Sc.  47;  Cole  S.  M. 
Co.  v.  Virginia  &  G.  H.  W.  Co.,  1 
Saw.  470. 

2  Hepburn  v.  Auld,  5  Craneh,  262. 
3  L.  ed.  90:  Hepburn  v.  Dunlop,  1 
Wheat.  179.  4  L.  ed.  03;  Find-lay 
v.  Hinde.  1  Pet.  241.  7  L.  ed.  128: 
Pokegama  S.  P.  L.  Co.  v.  Klamoth 
R.  L.  &  I.  Co.,  80  Fed.  528. 

3Evitt  v.  Price.  1  Sim.  483;  Seton 
on  Decrees  (4th  ed.),  179.  See  also 
(lark.-  v.  White,  12  Pet.  178,  9  L. 
od.  1040. 

4  Pusey    v.    Pusey,    1    Vern.    273: 


Duke  of  Somerset  v.  Cookson,  3  P. 
Wms.  389;  Greatrex  v.  Greatrex.  1 
De  G.  &  Sm.  002;  McGowin  v.  Rem- 
ington.  12  Pa.  St.  50,  51  Am.  Dec. 
584;  Dinsmore  v.  L.  C.  &  L.  Ry. 
Co.,  2  Fed.  465;  Dinsmore  v.  L..  X. 
A.  &  C.  R.  Co..  3  Fed.  593:  (oe  v. 
L.  &  X.  R.  Co..  3  Fed.  775:  Orinsbv 
v.  Union  Pac.  R.  Co.,  4  Fed.  706; 
Texaa  Exp.  Co.  v.  Texas  &  P.  Ry. 
Co.,  6  Fed.  426:  Chicago  &  A.  Ry. 
Co.  v.  X.  Y..  L.  E.  &  W.  R.  Co..  34 
Fed.  516;  C.  S.  M.  Co.  v.  V.  &  G. 
11.  W.  Co..  :  Saw.  085:  Chicago.  B. 
&  Q.  Ry.  Co.  v.  Burlington.  C.  1!.  & 
X.  Ry.  Co..  34  Fed.  4S1  ;  Southern 
Pac.  R.  Co.  v.  City  of  Oakland.  58 
Fed.  60;  In  re  Lennon.  160  U.  S. 
548.  41  L.  od.  1110:  Pokegama  S. 
P.  L.  Co.  v.  Klamuth  R.  L.  &  I.  Ry. 
Co.,  86  Fedi  52S:  Fairfield  Floral 
Co.  v.  Bradbury.  S7  Fed.  415;  Mot- 
ley v.  Southern  Ry.  Co.,  164  Ffed. 
956,  stock  in. a  corporation:  High  on 


900 


INJUNCTIONS. 


[§  286 


security  in  obedience  to  a  contract,5  the  making  of  a  policy  of 
insurance,6  the  stopping  and  receiving  freight  by  a  railroad 
company  at  a  particular  place,7  the  performance  of  a  contract 
by  one  railroad  company  to  send  freight  over  the  lines  of  an- 
other railroad.8  the  receipt  of  freight  cars  and  passengers  from 
one  railroad  company  by  another,  and  the  transportation  of  the 
same,9  the  furnishing  of  equal  facilities  by  a  railroad  company 
to  another  railroad  company,10  or  to  a  shipper,11  and  the  rescis- 
sion of  an  order  for  the  boycott  of  a  railway  company.12  and 
to  enjoin  a  reduction  of  charges  for  the  transportation  of  freight 
and  passengers,  which  deprived  the  complainant  of  its  property 
without  due  compensation.13  In  a  ease  involving  the  constitu- 
tionalitv  of  certain  Kentuekv  statutes,  the  court  refused  a  man- 
datory  injunction  compelling  a  distribution  of  the  money 
raised  by  a  tax  upon  white  people  partly  among  public  schools 
for  colored  children,  in  the  absence  of  any  contract  right  or 
legislative  authority  for  such  a  distribution ;  but  granted  "a  de- 
cree enjoining  and  restraining  the  proper  parties  from  apply- 
ing to  the  use  of  the  schools  organized  for  and  at  which  white 
children  only  are  allowed  to  attend,  one-fourth  of  the  money 
heretofore,  or  which  may  be  hereafter,  collected  under  the  au- 
thority of  the  act  of  1871  and  its  amendments."  14  Mandatory 
injunctions  are  usually  issued  in  a  negative  form,  restraining 


Injunctions,  (4th  ed.)  §§  2,  5a,  358, 
708,  &c.  See  Mandatory  Injunc- 
tions, by  Judge  Jacob  Klein.  12 
Harv.  Law  Rev.  95. 

5  Robinson  v.  Cathcart,  2  Crancli 
G.  C.  590. 

6  Union  M.  Ins.  Co.  v.  Commercial 
Mut.  M.  Ins.  Co..  2  Curt.  524. 

7  Coe  v.  Louisville  &  X.  R.  Co.,  3 
Fed.  775:  McCoy  v.  Cincinnati,  I., 
St.  L.  &   C.  R.  Co.,  13  Fed.  3. 

8  Chicago  &  A.  Ry.  Co.  v.  X.  Y., 
L.  E.  &.  \V.  R.  Co..  31  Fed.  51 G. 

9  CHicago,  B.  &  ().  Ry.  Co.  v.  Bur- 
lington. C.  R.  &  X.  Ry.  Co..  34  Fed. 
48]  I  Toledo.  A.  A.  &  X.  Mi.  R.  Co. 
v.  Pennsylvania  Co..  19  L.R.A.  38T, 
5    Inters.    Com.    Rep.    522,    54    Fed 


730;    In   re  Lennon,   166  U.  S.  548, 
41   L.  ed.  1110. 

10  Ibid. 

11  Butchers  &  D.  St.  Co.  v.  Louis- 
ville, S.  &  X.  R.  Co.,  C.  C.  A..  6.7 
Fed.  35;  Wells,  F.  &  Co.  v.  X.  Pac. 
Ry.  Co.,  23  Fed.  469. 

12  Chicago,  B.  &  Q.  Ry.  Co.  v. 
Burlington,  C.  R.  &  X.  Ry.  Co..  34 
Fed.  481 ;  Toledo.  A.  A.  &  X.  M.  R. 
Co.  v.  Pennsylvania  Co.,  54  Fed. 
730;  In  re  Lennon.  166  U.  S.  548, 
41  L.  ed.  1110.  See  So.  Cal.  Ry. 
Co.  v.  Rutherford,  62  Fed.  796. 

13  Love  v.  Atchison,  T.  &  S.  F.  Ry. 
Co..  C.  C.  A.,  185  Fed.  321. 

14  Barr,  J.,  in  Claj  brook  v.  Owens- 
boro,  23  Fed.  634,  636. 


287]       PROVISIONAL   AND   PERPETUAL    INJUNCTIONS. 


901 


a  defendant  from  desisting;  or  refusing  to  do  an  act.15    They  are 
very  rarely  granted  upon  interlocutory  motions.16 

§  287.  Distinction  between  provisional  and  perpetual  in- 
junctions. Provisional,  also  called  preliminary  or  interlocu- 
tory, injunctions  are  such  as  are  to  continue  until  a  certain  time 
usually  specified  therein;  for  example,  until  the  coming  in  of 
the  defendant's  answer,  the  hearing  of  the  cause,  the  master's 
report,  or  the  further  order  of  the  court.1  Perpetual  also  called 
final,  injunctions  are  those  which,  as  their  name  denotes,  per- 
petually restrain  the  defendant  from  the  same  act  or  acts.  Pro- 
visional injunctions  may  be  granted  at  any  time  during  the 
progress  of  a  suit.  Perpetual  injunctions  can  never  be  granted 
except  at  the  time  of  the  entry  of  the  decree.2  The  setting  up 
of  outstanding  terms  can,  it  has  been  said,  only  be  restrained  by 
a  perpetual  injunction.3  Mandatory  injunctions  also  will  very 
rarely  be  granted  before  a  decree.4  "It  is  a  rule  of  practice  in 
the  Circuit  Courts  of  the  United  States  not  to  allow  an  injunc- 


15  Southern  Exp.  Co.  v.  St.  Louis, 
I.  M.  &  S.  Ry.  Co..  10  Fed.  210,  869; 
Smith  v.  Smith,  L.  R.  20  Eq.  500, 
504:  Cole  S.  M.  Co.  v.  Virginia  & 
G.  H.  W.  Co..   1   Saw.  470. 

16  Denver  &  X.  O.  R.  Co.  v.  At- 
chison, T.  &  S.  F.  R.  Co..  13  Fed. 
546;  McCauley  v.  Kellogg,  2  Woods, 
13;  Camblos  v.  Phil.  &  R.  R.  Co.,  9 
Phila.  (Pa.)  411;  s.  c,  4  Brews. 
(Pa.)  563;  Rogers  L.  Works  v.  Erie 
Ry.  Co.,  5  C.  E.  Green  (20  X.  J. 
Eq.),  379;  Miles  v.  Johnston,  59 
Fed.  38:  Am.  Lead  Pencil  Co.  v. 
Sehpeegass,  178  Fed.  735;  Winton 
Motor  Carriage  Co.  v.  Curtis  Pub. 
Co.,  196  Fed.  906.  But  see  Bach- 
man  v.  Harrington,  184  X.  Y.  458, 
infra.  §  291.  But  see  Dinsmore  v. 
L.  C.  &  L.  Ry.  Co.,  2  Fed.  465; 
Dinsmore  v.  L.,  X.  A.  &  C.  R.  Co., 
3  Fed.  593 ;  Coe  v.  L.  &  X.  R.  Co.,  3 
Fed.  775;  Ormsby  v.  Union  Pac.  R. 
Co..  4  Fed.  706;  Texas  Exp.  Co.  v. 
Texas  &  P.  Ry.  Co..  6  Fed.  426; 
Chicago  &  A.  Ry.  Co.  v.  X.  Y.,  L. 
E.  &  W.  R.  Co..  34  Fed.  516;   C.  S. 


M.  Co.  v.  V.  &  G.  H.  W.  Co..  1  Saw. 
685:  Chicago.  B.  &  Q.  Ry.  Co.  v. 
Burlington,  C.  R.  &  X.  Ry.  Co.,  34 
Fed.  481;  Southern  Pac.  R.  Co.  v. 
City  of  Oakland.  58  Fed.  50:  In  re 
Lennon.  160  U.  S.  548.  41  L.  ed. 
1110;  Pokegama  S.  P.  L.  Co.  v. 
Klamoth  R.  L.  &  I.  Ry.  Co..  86  Fed. 
528;  Fairfield  Floral  Co.  v.  Brad- 
bury, 87  Fed.  415.  See  Mandatory 
Injunctions,  by  Judge  Jacob  Klein, 
12  Harv.  Law  Rev.  95. 

§  287.  1  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)  1810:  High.  Injunctions.  §  3; 
Eden.  Injunctions,  ch.  xv. 

ZDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1903:  Adams  v.  Crittenden.  17  Fed. 
42. 

SHylton  v.  Morgan.  6  Yes.  293: 
Byrne  v.  Byrne,  2  Sch.  &  Let.  537  : 
Barney  v.  Luckett,  1  Sim.  &  S.  419; 
Xortliey  v.  Pearce,    1    Sim.  &    S.  420. 

4  Camblos  v.  Phila.  &  R.  R.  Co.. 
9  Phila.  (Pa.i  411  :  s.  c.  4  Brcwst. 
( Pa.  i  563;  Rogers  I-  ML  Works  v. 
Erie  Ry.  Co..  5  C.  E.  Green  I  X  ■  !.  . 
379.     But  see  Dinsmore  v.  L..  C.  & 


902 


INJUNCTIONS. 


[§  288 


tion  to  stay  an  ejectment  suit  until  it  can  be  investigated  in 
equity,  unless  a  judgment  be  entered  therein."  5 

§  288.  Distinction  between  common  and  special  injunc- 
tions. Injunctions  were  formerly  of  two  kinds,  common  and 
special.  Common  injunctions  were  granted,  as  of  course,  upon 
the  defendant's  default  either  in  appearing  or  answering,  and 
were  only  applicable  to  restrain  proceedings  at  common  law.1 
Special  injunctions  were  those  granted,  not  as  a  matter  of 
course,  but  upon  the  special  circumstances  of  the  case  as  dis- 
closed by  the  answer  of  the  defendant  or  upon  affidavits.2  Com- 
mon injunctions  have  been  abolished  by  the  Revised  Statutes.3 
The  learning  upon  the  subject,  which  is  very  technical,  seems 
now,  therefore,  useless,  and  will  not  be  repeated  here.4 

§  289.  Time  and  place  of  applications  for  interlocutory 
injunctions.  An  injunction  may  be  obtained,  at  any  time,  as 
well  in  vacation  as  in  term,  and  whether  the  court  be  sitting  or 
not,  at  any  place  within  which  the  judge  granting  it  has  juris- 
diction and  at  almost  any  stage  of  the  cause.1  "But  no  justice 
of  the  Supreme  Court  shall  hear  or  allow  any  application  for  an 
injunction  or  restraining  order  in  any  cause  pending  in  the 
circuit  to  which  he  is  allotted,  elsewhere  than  within  such 
circuit,  or  at  such  place  outside  of  the  same  as  the  parties  may 
stipulate  in  writing,  except  when  it  cannot  be  heard  by  the  dis- 
trict judge  of  the  district."2  In  England  it  has  been  held,  that, 
in  a  very  extraordinary  case,  an  injunction  may  be  granted 
upon  petition  before  the  filing  pf  a  bill  or  the  service  of  a  sub- 
poena.3 In  a  court  of  the  United  States  an  injunction  has  been 
issued  upon  the  tiling  of  the  bill  and  before  service  of  the  sub- 


L.  Ry.  Co.,  2  Fed.  465;  Coe  v.  L. 
&  X.  R.  Co.,  3  Fed.  775,  and  other 
cases  cited  under  §   225. 

5  Billings,  J.,  in  Heirs  of  Szy- 
wauski  v.  Zunts,  20  Fed.  361,  363, 
citing  Turner  v.  Am.  B.  M.  Union, 
5  McLean.  344. 

§  288.  IDaniell's  Ch.  Pr.  (2d 
Am.  ed.)    1877. 

s'TJaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1833. 

SPerrv  v.  Parker,  1  W.  &  M.  280; 


Lawrence  V.  Bowman,  1  McAll.  419. 

4  See  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)    1811-1833. 

§  2S9.  IDaniell's  Ch.  Pr.  (5th 
Am.  ed.)  1663;  Kerr  on  Injunctions, 
543,  545 ;  Bacon  v.  Jones,  4  Myl.  & 
Cr.  433. 

2Jud.  Code,  §  264,  36  St.  at  L. 
1087. 

3  Mayor  of  London  v.  Bolt,  5  Ves. 
129. 


§  290]       INJUNCTIONS  NOT  PKAYED  IN  BILL.  903 

poena;4  and  a  restraining  order  was  granted  upon  the  present- 
ment of  a  bill  to  the  court  before  its  filing,  when  a  notice  of 
an  application  for  leave  to  file  the  same  had  previously  been 
given  to  the  defendants.5  It  has  been  held  that  a  aon-residen1 
defendant  who  cannot  be  served  with  process  may  be  enjoined 
from  infringing  a  patent  within  the  district.6  An  injunction 
will  ordinarily  be  refused  while  a  demurrer  or  plea  to  the  bill  is 
pending.7  But  in  cases  of  emergency,  the  court  may  order  the 
sufficiency  of  such  a  pleading  to  be  argued  before  the  regular 
time  for  such  a  proceeding,  together  with  the  motion  for  the  in- 
junction;8 or  even  grant  a  restraining  order  without  waiting 
for  the  argument.9  Should  a  motion  be  heard  while  a  de- 
murrer is  on  the  file  and  undisposed  of.  it  seems  that  upon  the 
hearing  of  the  motion  the  allegations  in  the  bill  will  be  con- 
sidered as  admitted.  An  application  for  an  injunction  has 
been  refused  because  the  bill  had  been  referred  for  scandal.11 

§  290.  Injunctions  not  prayed  for  in  the  bill.  The  Eng- 
lish rule  wTas  that  an  injunction  would  not  issue  against  a 
person  not  made  a  party  to  a  bill  specifically  praying  an  in- 
junction against  him;1  and  the  injunction  had  to  be  prayed 
for  not  only  in  the  prayer  for  relief,  but  also  in  the  prayer  for 
process.2  To  this,  however,  there  were  four  exceptional  classes 
of  cases.  If  the  court  had  by  its  decree  taken  the  distribution 
or  control  of  property  into  its  own  hands,  it  would  prevent  in- 
jury thereto  either  by  the  parties  litigant  or  others,  although 
no  injunction  had  been  prayed  by  the  bill.3  Thus,  in  a  fore- 
closure suit,  it  would  restrain  waste  by  the  mortgagor  after  a 
decree  for  an  account;4  and  after  a  decree  for  the  administra- 

*  Schermerhorn  v.  L'Espenasse,  2       Maltby  v.  Bobo,  14  Blatehf.  53;  Rre- 
Dall.  3G0,  1  L.  ed.  41.5.  mont    v.    Merced    M.    Co.,    1    McAU. 

5  St.  Louis  &  S.  F.  R.  Co.  v.  Had-       2<!7. 

ley,  155  Fed.  220.     Of.  U.  S.  R.  S.,  io  Bayerque  v.  Cohen,  McAlL   113, 

§   718:   infra,  §  2!ll.  11  Davenport      v.      Davenport.      6 

6  Kennedy  v.  Pcnn.  I.  &  Coal  Co.,       Madd.  251. 

67  Fed.  339.  §200.     1  Daniell's    Ch.    Pr.     (5th 

7  Cousins  v.  Smith,  13  Ves.  1G4;  Am.  ed.)    L614-1617* 
Ketchum  v.  Drigga,  6  McLean,   13.  2  Wood  v.  Beadell,  3  Sim.  273. 

8  Anon.  v.  Bridgewater  C.  Co.,  0  8  DanielFe  Ch.  Pr.   (5th  Am.  ed.) 
Sim.    378;    Daniell's    Ch.    Pr.     (5th  163,4. 

Am.  ed.)   167-1.  4  Wright  v.  Atkyns.  1  V.  &  B.  313. 

9  Frowd  v.   LawTence,   1   J.  &   W. 


904 


INJUNCTIONS. 


[§  291 


tion  of  the  assets  of  a  dead  man,  it  would  enjoin  a  creditor  not 
a  party  to  the  suit  from  proceeding  at  law  against  the  testator's 
or  intestate's  estate  to  satisfy  his  individual  claim,  provided 
that  the  executor  made  an  affidavit  stating-  what  assets  he  had  in 
his  hands,  or  had  previously  admitted  their  amount.5  If  the 
suit  were  brought  by  a  legatee,  such  a  statement  or  admission 
was  not  indispensable.6  Secondly,  an  injunction  was  granted 
without  a  bill  being  filed,  for  the  express  purpose  of  preventing 
a  plaintiff  from  suing  both  at  law  and  in  equity  at  the  same  time 
and  for  the  same  matter,  and  to  compel  him  to  make  an 
election.7  Thirdly,  an  injunction  could  always  be  obtained  to 
compel  respect  and  enforce  obedience  to  the  decrees  and  orders 
of  the  court:  Thus,  publications  which  were  disrespectful  to 
the  court,  or  which  unfairly  reported  its  proceedings,  could  be 
enjoined.8  So,  too,  an  injunction  could  issue  to  restrain  an 
action  at  law  to  recover  damages  for  false  imprisonment  under 
process  of  contempt  improperly  issued ; 9  to  compel  compliance 
with  the  terms  and  spirit  of  a  decree  by  one  who  had  bought 
land  under  it ; 10  to  compel  compliance  with  his  lease  by  the 
tenant  of  a  receiver ;  n  and  to  prevent  an  unauthorized  action 
against  a  receiver.12  And  fourthly,  there  seems  to  be  a  class 
of  cases  not  clearly  defined  in  which  the  court  granted  an  in- 
junction,  when  without  it  "the  whole  object  of  the  proceedings 
would  be  defeated,"  although  it  was  not  prayed  for  in  the  bill.13 
§  291.  Special  practice  of  the  Federal  courts  in  the  issue 
of  injunctions.  The  Equity  Rules  provide:  that  a  bill  in 
equity  shall  contain  "a  statement  of  any  prayer  for  any  special 
relief  pending  the  suit  or  on  final  hearing,  which  may  be  stated 


5  Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
1617;  Paxton  v.  Douglas,  8  Yes. 
520;  Thompson  v.  Brown,  4  J.  Ch. 
(X.  Y.)    619. 

6  Ratcliffe  v.  Winch,  16  Beav. 
57 6  •,  Daniell's  Ch.  Pr.  5th  Am.  ed.) 
1617. 

7  Rogers  v.  Yosburgh,  4  J.  Ch. 
<X.  Y.)   C4. 

8  Anon..  2  Yes.  Sen.  520:  Brook 
v.  Evans.  29  L.  J.  Ch.  GIG:  Cole- 
man v.  West  H.  Ry.  Co..  8  W.  R. 
734;    Mackett    v.    Com'rs    of    Heme 


Bay,  24  W.  R.  845.  But  see  U.  S. 
R.  S.,  §  725;  Hobbs  Mfg.  Co.  v. 
Gooding.  C.  C.  A.,  113  Fed.  615. 

9  Frowd  v.  Lawrence,  1  J.  &  W. 
G55;  Ex  parte  Clarke.  ]  R.  &  M. 
563;   Daniell's  Ch.  Pr.  51  It 

i°  Casamajor  v.  Strode.  1  Sim.  & 
Stu.  381;  Kerr  on  Injunctions,  543. 

11  Walton  v.  Johnson,  ]5  Sim.  352. 

12  Angel  v.  Smith,  9  Yes.  335. 

13  Blomfield  v.  Eyre,  8  Beav.  250. 
See  Shainwald  v.  Lewis,  6  Fed.  766. 


§    291]  SPECIAL   PRACTICE    IN   U.   S.    COT  IMS.  905 

and  sought  in  alternative  forms.  If  special  relief  pending  the 
suit  be  desired  the  bill  shc-.ild  be  verified  by  the  oath  of  the 
plaintiff,  or  someone  having  knowledge  of  the  facts  upon  which 
such  relief  is  asked.''1  The  Judicial  Code:  "Whenever  notice 
is  given  of  a  motion  for  an  injunction  out  of  a  District  Court, 
the  court  or  judge  thereof  may,  if  there  appears  to  be  danger 
or  irreparable  injury  from  delay,  grant  an  order  restraining 
the  act  sought  to  be  enjoined  until  the  decision  upon  the  motion ; 
and  such  order  may  be  granted  with  or  without  security,  in 
the  discretion  of  the  court  or  judge.''  z  The  Equity  Rules 
provide:  '"No  preliminary  injunction  shall  be  granted  without 
notice  to  the  opposite  party.  Nor  shall  any  temporary  restrain- 
ing order  be  granted  without  notice  to  the  opposite  party,  unless 
it  shall  clearly  appear  from  specific  facts,  shown  by  affidavit  or 
by  the  verified  bill,  that  immediate  and  irreparable  loss  or  dam- 
age will  result  to  the  applicant  before  the  matter  can  be  heard 
on  notice.  In  case  a  temporary  restraining  order  shall  be 
granted  without  notice,  in  the  contingency  specified,  the  matter 
shall  be  made  returnable  at  the  earliest  possible  time,  and  in 
no  event  later  than  ten  days  from  the  date  of  the  order,  and 
shall  take  precedence  of  all  matters,  except  older  matters  of  the 
same  character.  When  the  matter  comes  up  for  hearing  the 
party  who  obtained  the  temporary  restraining  order  shall 
proceed  with  his  application  for  a  preliminary  injunction,  and 
if  he  does  not  do  so  the  court  shall  dissolve  his  temporary  re- 
straining order.  Upon  two  days  notice  to  the  party  obtaining 
such  temporary  restraining  order,  the  opposite  party  may  ap- 
pear and  move  the  dissolution  or  modification  of  the  order,  and 
in  that  event  the  court  or  judge  shall  proceed  to  hear  and  deter- 
mine the  motion  as  expenditures  as  the  ends  of  justice  may  re- 
quire. Every  temporary  restraining  order  shall  be  forthwith 
filed  in  the  clerk's  office."  3  It  has  been  held :  that  such  a  re- 
straining order  may  be  mandatory  and  require  affirmative  ac- 
tion ; 4  but  the  usual  practice  is  to  grant  such  orders  only  to  pre- 

t 

§  291.     lEq.  Rule  25.  v.   Kansas  &   A.  V.   R.  Co.,  46  Fed. 

2Jud.   Code.    §   263,   36   St.   at  L.  546:   United  Railroads  of  San   Fran- 

1087,  re-enacting  U.  S.  R.  S.,  §  718.  cisco    v.    City    and    County    of    San 

See  Yuengling  v.  Johnson,  1  Hughes,  Francisco  et   al..   180   Fed.   048. 

607 ;    (..   B.  &   Q.   Ry.  Co.   v.   B.,   C.  3  Eq.  Rule  73. 

R.  &  X.  Ry.  Co.,  34  Fed.  481  ;  Payne  4  Pokegama   S.   R.   L.   Co.   v.    Kla- 


006 


INJUNCTIONS. 


[§  292 


serve  the  status  quo.5  An  injunction  suspending  or  restrain- 
ing the  enforcement,  operation,  or  execution  of  any  statute 
of  a  State  or  order  made  by  an  administrative  board  or  com- 
mission  created  by  an  act  under  the  statute  of  a  State,  or  re- 
straining the  action  of  an  officer  of  a  State  in  the  enforcement 
or  execution  of  such  statute  or  order,  cannot  be  issued  unless 
the  application  for  the  same  is  presented  to  a  Justice  of  the 
Supreme  Court  or  to  a  circuit  or  district  judge  and  is  heard 
and  determined  by  three  judges,  of  whom  at  least  one  must 
be  a  Justice  of  the  Supreme  Court  or  a  circuit  judge,  and  a  ma- 
jority of  such  three  judges  must  concur  in  the  grant  of  such  an 
application.6  The  cases  construing  the  statute  are  previously 
di -cussed.7  It  has  been  held,  that  the  statute  forbids  a  single 
judge  to  deny  a  motion  for  such  an  injunction  and  even  to 
vacate  such  a  restraining  order  previously  issued  by  himself.8 
The  statutory  provisions  concerning  copyright9  and  trade- 
mark 10  cases  are  previously  quoted. 

§  292.  Notice  of  application  for  interlocutory  injunc- 
tion. As  a  general  rule,  notice  of  an  application  for  an  in- 
junction must  always  be  given  to  the  person  against  whom  the 
injunction  is  desired ;  but  in  very  pressing  cases,  where  the  mis- 
chief sought  to  be  prevented  was  serious,  imminent,  and  irre- 
mediable, or  where  the  mere  act  of  giving  notice  to  the  defend- 
ant of  the  intention  to  make  the  application  might  have  been  of 
itself  productive  of  the  mischief  apprehended,  by  inducing  him 
to  accelerate  the  act  in  order  that  it  might  be  complete  before 
the  time  for  making  the  application  should  have  arrived,  the 
courts  have  from  the  earliest  time  awarded  injunctions  without 
notice.1  Under  the  peculiar  practice  of  the  Federal  courts, 
a  temporary  restraining  order  is  the  sole  relief  that  can  be 


math  R.  L.  &  I.  Co.,  86  Fed.  528.  Cf. 
■supra,  §  225. 

5  Cumberland  Telephone  &  Tele- 
graph Co.  v.  Railroad  Commission 
of  Louisiana,   156   Fed.   834. 

6Jud.  Code.  §  266.  36  St.  at  L. 
1087,  as  amended  by  Public  Law 
445.  62nd  Cong..  Third  Sess. 

7  See    §    105,    supra. 

8  Ex  parte  Metropolitan  Water 
Co..    220   U.   S.   539,   55   L.   ed.   575. 


»§§  156,  278,  supra. 

10  §§  148,  279,  supra. 

§292.  iDaniell's  Ch.  Pr.  (5th 
Am.  ed.)  1664;  High,  Injunctions, 
§  1578;  Kerr.  Injunctions,  545; 
Wing  v.  Fairhaven,  8  Cush.  (Mass.) 
363;  Schermerhorn  v.  L'Espenasse, 
2  Dall.  360.  1  L.  ed.  415;  Yueng- 
ling  v.  Johnson,  1  Hughes,  607. 


§  292] 


NOTICE  OF  APPLICATION. 


oo: 


granted  in  such  a  case.2  On  an  application  for  an  injunction 
without  notice,  the  plaintiff  should  state  in  his  affidavit  the 
time  when  he  first  learned  of  the  threatened  mischief,8  if  the 
injunction  desired  be  to  restrain  the  infringement  of  a  pateril 
that  he  believes  that  the  person  to  whom  the  patent  was  issued 
was  the  original  inventor  thereof,  or  that  the  thing  or  proa  - 
patented  was  new  or  had  not  been  introduced  into  public  use  in 
the  United  States  for  more  than  two  years  prior  to  the  appli- 
cation upon  which  the  patent  was  issued,4  and  every  material 
circumstance  connected  with  the  case,  whether  the  same  bears 
for  or  against  his  application.5  If  his  affidavit  be  defective  in 
any  of  these  particulars,  according  to  the  English  practice  an 
injunction  would  not  be  issued,  or  if  issued  the  order  for  it 
would  be  discharged.6  In  the  absence  of  any  local  rule  upon 
the  subject,  the  practice  in  giving  notice  of  an  application  for 
an  injunction,  and  of  proceeding  at  the  time  when  the  appli- 
cation is  made,  are  the  same  when  an  injunction  is  asked  for  as 
upon  any  other  interlocutory  application.  It  has  been  said 
that  an  application  for  an  interlocutory  special  injunction,  dur- 
ing term  and  after  the  beginning  of  a  suit  and  before  answer. 
can  only  be  made  by  motion;  but  that  in  vacation  a  judge  may 


2U.  S.  R.  S.,  §  718;  supra,  §§  289, 
291. 

3  Calvert  v.  Gray,  2  Cooper's  Ch. 
171.  n. 

4  Hill  v.  Thompson,  3  Meriv.  622: 
Sturz  v.  De  la  Rue,  5  Russ.  322, 
329;  Sullivan  v.  Redfield,  1  Paine, 
441.  See  also  U.  S.  R.  S.,  §§  4880, 
4887. 

5  Dalglish  v.  Jarvie,  2  Maen.  &  G. 
231. 

6  Dalglish  v.  Jarvie,  2  Macn,  & 
G.  231,  243,  244,  per  Baron  Rolfe: 
"The  application  for  a  special  in- 
junction is  very  much  governed 
upon  the  same  principles  which  gov- 
ern insurances,  matters  which  are 
said  to  require  the  utmost  degree 
of  good  faith,  'uberrima  fides.'  In 
cases    of    insurance    a    party    is    re- 


quired not  only  to  state  all  matters 
within  his  knowledge,  which  lie  be- 
lieves  to  be  material  to  the  question 
of  the  insurance,  but  all  which  in 
point  of  fact  are  so.  If  he  conceals 
anything  that  he  knows  to  be  mate- 
rial, it  is  a  fraud:  hut  besides  that, 
if  lie  conceals  anything  that  may 
influence  the  rate  of  premium  which 
the  underwriter  may  require  al- 
though he  does  not  know  that  it 
would  have  that  effect,  such  con- 
cealment entirely  vitiates  the  pol- 
icy. So  here,  if  the  party  apply- 
ing for  a  special  injunction,  ab- 
stain.- from  stating  tacts  which  the 
court  thinks  are  most  material  to 
enable  it  to  form  its  judgment,  he 
disentitles  himself  to  that  relief 
which   he  asks  the  court   to  grant." 


•MIS 


INJUNCTIONS. 


[§  293 


grant  such  an  application  upon  petition.7  The  usual  practice  is, 
however,  to  apply  by  motion.  It  has  been  held  that  a  mandatory 
injunction  can  only  be  granted  upon  notice.8  It  has  been 
further  held  that  the  evidence  which  would  prevent  the  issue 
of  an  interlocutory  injunction  will  be  sufficient  to  induce  the 
court  to  dissolve  one  previously  granted.9  A  temporary  in- 
junction may  be  granted  after  a  final  hearing  and  submission 
of  the  case  on  the  merits.1 

§  293.  Affidavits  upon  an  application  for  an  injunction. 
The  affidavits  upon  which  an  injunction  is  sought  are  usually 
sworn  to  by  the  plaintiffs  or  one  of  them,1  but  may  be  sworn 
to  by  any  person  acquainted  with  the  facts,2  in  which  latter  case 
the  affidavit  should,  it  seems,  state  a  good  reason  for  its  not 
being  sworn  to  by  one  of  the  plaintiffs.3  Except  in  extra- 
ordinary eases,  the  allegations  must  be  sworn  to  positively  and 
not  upon  information  and  belief,  unless  the  sources  of  the  in- 
formation are  stated  and  some  excuse  given  for  the  absence  of 
the  affidavit  of  the  informant.4  It  is  in  general  necessary  that 
a  plaintiff  should  swear  positively  to  his  title.5  An  injunction 
has  been  refused  when  a  plaintiff  merely  swore  upon  infor- 
mation and  belief  that  he  was  a  remainderman  under  a  settle- 
ment.6    Upon  an  application  for  an  injunction  to  stay  waste, 


7Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
1 666:  Smith  v.  Clarke.  2  Dick.  455; 
Nichols  v.  Kearsly,  2  Dick.  645. 

8  Chicago.  B.  &  Q.  R.  Co.  v.  Bur- 
lington, C.  R.  &  N.  R.  Co.,  34  Fed. 
481. 

9  Cnry  v.  Domestic  S.  Co..  26  Fed. 
38.  Contra.  Toledo,  A.  A.  &  N.  M. 
Ry.  Co.  v.  Pennsylvania  Co.,  19 
L.R.A.  387,  54  Fed.  730;  S,  c,  19 
L.R.A.  395,  54  Fed.  746,  supra, 
§  286. 

10  Cimiotti  Unhairing  Co.  v.  Amer- 
ican Fur  Ref.  Co.,  117  Fed.  623. 

§  293.  iDaniell's  Ch.  Pr.  (5th 
Am.  ed.)   1669. 

2  Lord  Byron  v.  Johnston,  2 
Meriv.  29;  Brooks  &  Hardy  v. 
O'Hara  Bros.,  8  Fed.  529. 


2  U.  S.  R.  S.,  §  718;  supra,  §§  289, 
291. 

3  Lord  Byron  v.  Johnston,  2  Meriv. 
29:  Spaulding  v.  Keely,  7  Sim.  377; 
Scotson  v.  Gaury,  1  Hare,  99; 
Kerr  on   lnj.  548. 

4  Lake  S.  &  X.  Ry.  Co.  v.  Felton, 
C.  C.  A.,  103  Fed.  227:  Murphy  v. 
Jack,  142  X.  Y.  215,  218;  Rosevelt 
v.  Edson,  51  X.  Y.  Super.  Ct.  227. 
In  Re  Debs,  158  U.  S.  564,  573,  the 
bill  tiled  by  a  railroad  company  was 
verified  only  by  the  affidavit  of  a 
person  not  shown  to  be  connected 
with  it,  stating  that  he  had  read  the 
bill  and  believed  the  statements 
therein  contained  to  be  true. 

CDaniell's  Ch.  Pr.  (5th  Am.  ed.) 
1669. 

6  Davis  v.  Leo.  6  Yes.  784. 


§  293] 


AFFIDAVIT  CPOX  APPLICATION. 


900 


he  must  set  out  his  title  with  particularity.  A  statement  "that 
the  plaintiff  was  entitled  to  the  fee  simple  of  the  estate"  has 
been  held  insufficient.7  It  has  been  said  that  if  fraud  is  relied 
upon  as  a  basis  for  an  injunction,  it  must  be  sworn  to  positively, 
and  not  merely  upon  information  and  belief.8  The  plaintiff 
should  also  in  the  affidavits  show  some  actual  violation  of  his 
rights,  or  a  sufficient  ground  to  apprehend  it.  A  verified  bill 
may  take  the  place  of  an  affidavit.10  An  injunction  may  be 
granted  though  the  bill  is  not  sworn  to,  provided  that  the  accom- 
panying affidavits  show  a  proper  case  for  it;11  but  not  unless  a 
proper  case  is  made  out  by  the  bill  itself.12  If  the  defendant 
in  his  opposing  affidavits  set  up  as  a  defense  new  matter  in 
avoidance  of  the  case  shown  by  the  plaintiff,  the  latter  may  have 
leave  to  file  further  affidavits  in  rebuttal;  but  generally  no 
subsequent  affidavits  can  be  filed  by  the  defendant.13  Rebutting 
affidavits  may  also  be  used  to  support  any  allegations  of  the  bill 
denied  in  the  answer  except  such  as  state  the  plaintiff's  title  to 
property  affected  by  the  litigation.14  Affidavits  in  rebuttal  can- 
not be  filed  without  leave  of  the  court,  which,  it  has  been  said, 
should  only  be  granted  under  special  circumstances.15  The  au- 
thorities are  conflicting  as  to  whether  or  not  the  plaintiff's  title, 
if  denied  in  the  answer,  can  be  supported  by  rebutting  affi- 
davits.16 The  court  has  permitted  the  use  of  affidavits  which 
were  not  entitled  and  which  were  made  and  signed  before  the 
bill  was  filed,  when  it  appeared  from  their  contents  that  they 


7\\'hitelegg  v.  Whitelegg,  1 
Brown.  Cli.  C.  57. 

8  Brooks  &  Hardy  v.  O'Hara  Bros., 
8  Fed.  529. 

9  Gibson  v.  Smith,  2  Atk.  182; 
Jackson  v.  Cator,  5  Ves.  688;  Han- 
son v.  Gardiner,  7  Ves.  305. 

io  City  of  Kankakee  v.  Am.  Water 
Supply  Co.,  C.  C.  A.,  199  Fed.  757. 

11  Smith  v.  Schwed,  6  Fed.  455. 

12  Cooper  v.  Mattheys,  8  Law  R. 
413;  Wilson  v.  Stolley.  4  McLean, 
272;  Leo  v.  Union  Pac.  By.  Co.,  17 
Fed.  273;  Land  Co.  v.  Elkins.  20 
Fed.  545;  St.  Lonis  T.  F.  v.  Carter 
&  G.  P.  Co..  31  Fed.  524. 

13  Day  v.  New   Eng.  C.   S.  Co.,  3 


Blatchf.  154.  See  Rule  107  and 
Rule  of  May.  1840.  of  U.  S.  C,  S. 
1).  X.  V..  quoted  supra,  $  291. 

14  Brooks  v.  Bicknell,  3  McLean, 
250;  Farmer  v.  Calvert  Lith.  Co., 
1  Flip.  228.  See  Rule  113  and  Rule 
of  May.  1840,  of  U.  S.  C.  C,  S.  D. 
N.  V. 

15  Benbow-Brammer  Mfg.  Co.  v. 
Simpson   Mfg.  Co.,  132  Fed.  014. 

IB  Compare  Poor  v.  Carleton,  3 
Siimn.  70;  Goodyear  v.  Mullee;  •'* 
Fisher,  420,  with  Farmer  v.  Calvert 
Lith.  Co..  1  Flip.  228;  Parker  v. 
Sears,  1  Fish.  Pat.  Cas.  93;  1.  S. 
v.  Parrott,   1   McAll.  271.     See  Rule 


mo 


INJUNCTIONS. 


[§  294 


were  made  for  the  purpose  of  being-  used  in  a  suit  between 
the  parties.17  Where  an  allegation  in  the  bill  is  not  denied  in. 
the  answer,  it  is  taken  as  admitted  for  the  purposes  of  a  motion, 
for  a  preliminary  injunction.18  Documentary  proof,  if  of  equal 
force  with  affidavits,  can  also  be  used  in  support  or  in  opposition, 
to  a  motion  for  an  injunction.19  Upon  the  hearing-  of  a  motion 
for  a  preliminary  injunction,  the  rules  of  evidence  are  applied 
less  strictly  than  upon  the  final  hearing  of  the  cause ;  and  con- 
sequently decrees  entered  in  suits  between  strangers  affecting 
the  validity  of  a  patent  in  question  may  be  offered  in  evidence, 
in  support  of  an  application  for  a  preliminary  injunction,  but 
not  in  support  of  an  application  for  one  that  is  to  be  perpetual.20 
Hearsay  evidence  may  also  be  used.21  In  one  case  statements  in 
a  proclamation  by  the  Governor  of  the  State  were  treated  as  evi- 
dence upon  such  a  motion.22  In  another,  campaign  speeches- 
by  the  Governor  of  the  State  were  treated  as  evidence  of  the 
proper  construction  of  a  law. 

§  294.  Rules  of  decision  upon  applications  for  inter- 
locutory injunctions.  The  issue  of  an  interlocutory  injunc- 
tion is  never  a  matter  of  right,  but  rests  in  the  sound  discretion 
of  the  court.  In  order  to  obtain  one,  the  plaintiff  must  show 
either  that  there  is  no  doubt  of  the  wrongful  nature  of  the  act 
sought  to  be  enjoined,1  or  that  his  own  ch.inis  of  right  have 
been  acquiesced  in  without  question  for  a  long  period  of  time, 


107   and  Rule  of  May,  1846,  of  U. 
S.  C.  C,  S.  D.  N.  Y. 

17  Modox  Co.  v.  Moxie  Nerve 
Food  Co.,  C.  C.  A.,  1G2  Fed.  649. 

18  Young  v.  Grundy,  6  Cranch,  51, 
3  L.  ed.  149.     See  §  146. 

19  Schermerhorn  v.  L'Espenasse,  2 
Pali.  360.  1  L.  ed.  415. 

20  Buck  v.  Hermance,  1  Blatehf. 
322;  Matthews  v.  Ironclad  Mfg.  Co., 
19  Fed.  321. 

21  Casey  v.  Cincinnati  Typ.  Union 
Xo.  3.  12  L.R.A.  193,  45  Fed.  135, 
147.  where  Judge  Sage  quotes  tliis 
passage  with  approval.  See  Merritt 
v.  Thompson,  3  E.  D.  Smith  (X.  Y.) 
283. 

22Coeur  d'  Alene  Cons.  &  M.  Co. 


v.  Miners'  Union,  19  L.R.A.  382,  51 
Fed.  260. 

23  Mercantile  Tr.  Co.  v.  Texas  & 
P.  Ry.  Co.,  51   Fed.  529,  542. 

§  294.  l  Minturn  v.  Larue,  1  Mc- 
A.11.  370;  Buchanan  v.  Rowland.  2 
Fish.  341  ;  Doughty  v.  West.  2  Fish. 
553;  Irving  v.  Joint  Dist.  Council, 
U.  B.  of •  Carpenters,  &c,  180  Fed. 
896.  See  Owsley  v.  Yerkes,  185  Fed. 
686. 

SYarick  v.  Mayor  of  X.  Y.,  4  J. 
Ch.  (X.  Y.)  53;  Kirhy  Bung  Mfg. 
Co.  v.  White,  1  Fed.  604;  McKay  v. 
Dihert,  5  Fed.  587;  W.  U.  Tel.  Co. 
v.  Union  Pac.  R.  Co..  3  Fed.  721; 
\tlantic  &  Pac.  Tel.  Co,  v.  Union 
Pac.  Rv.  Co.,  1   Fed.  745:   Cumber- 


294] 


RULES    OF   DECISION   UPON    APPLICATION. 


911 


or  that  the  injury  which  will  result  to  himself  from  a  refusal 
of  the  injunction  will  be  very  great,  and  that  to  the  defendant 
from  the  issue  thereof  very  slight.3  Otherwise,  an  interlocu- 
tory injunction  will  be  denied  him.4  Where  no  gfelal  financial 
loss  is  threatened  no  injunction  Avill  be  issued  to  restrain  the 
execution  of  an  act  of  Congress,  unless  the  invalidity  of  the 
statute  is  clear  beyond  a  rational  doubt.5  The  citation  of  a  rail- 
way company  to  show  cause  before  a  city  council  why  its  fran- 
chise should  not  be  forfeited,  was  held  to  be  a  sufficient  threat 
to  justify  the  issue  of  a  preliminary  injunction.6  An  inter- 
locutory injunction  may  be  granted  upon   evidence  not   surH- 


<and  Tel.  &  Tel.  Co.  v.  Railroad 
Commission  of  La.,  156  Fed.  823; 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  In- 
terstate Commerce  Commission.  182 
Fed.  189. 

3\V.  U.  Tel.  Co.  v.  St.  J.  &  W. 
Ry.  Co.,  3  Fed.  430;  \Y.  U.  Tel.  Co. 
v.  Burlington  &  S.  VV.  Ry.  Co.,  11 
Fed.  1;  Am.  U.  Tel.  Co.  v.  Union 
Pac.  Ry.  Co.,  1  McCrary,  188;  At- 
lantic &  Pac.  Tel.  Co.  v.  Union  Pac. 
Ry.  Co.,  1  McCrary,  541;  Allison  v. 
Corson,  C.  C.  A.,  88  Fed.  581 ;  Dim- 
ick  v.  Shaw,  C.  C.  A.,  94  Fed.  266; 
Cartersville  Light  &  Power  Co.  v. 
Mayor,  etc.,  of  Cartersville,  114 
Fed.  699;  Copper  King  v.  Wabash 
Min.  Co.,  114  Fed.  991;  Denver  & 
R.  G.  R.  Co.  v.  U.  S.,  C.  C.  A.,  124 
Fed.  156;  W.  U.  Tel.  Co.  v.  Phila- 
delphia, B.  &  W.  R.  Co.,  124  Fed. 
1)74;  Mercantile  Tr.  &  D.  Co.  v.  Co- 
lumbus, Waterworks,  130  Fed.  180; 
Jones  v.  Dimes,  130  Fed.  638:  Samp- 
son &  Murdpek  Co.  v.  Seaver-Rad- 
ford  Co.,  129  Fed.  761;  Gring  v. 
Chesapeake  &  Delaware  Canal  Co.. 
129  Fedv  996;  Harriman  et  al.  v. 
Northern  Securities  Co.,  132  Fed. 
464;  Seaboard  Air  Line  Ry.  Co.  v. 
Railroad  Commission,  155  Fed.  792; 
Colgate  v.  James  T.  White  &  Co., 
169  Fed.  887;  Arlington  Heights 
Fruit  Co.  v.  Southern  Pac.  Co.,  175 


Fed.  141;  Love  v.  Atchison,  T.  &  S. 
F.  Ry.  Co.,  C.  C.  A.,  185  Fed.  321  ; 
Indianapolis  Gas  Co.  v.  Indianapo- 
lis, 82  Fed.  245.  246,  per  Baker, 
J. :  "It  is  settled  that  upon  a  pre- 
liminary application  for  a  tempora- 
ry restraining  order  all  that  the 
judge  should,  as  a  general  rule,  re- 
quire is  a  case  of  probable  right, 
and  of  probable  danger  to  that  right 
without  the  interference  of  the 
court,  and  its  discretion  should  then 
be  regulated  by  the  balance  of  in- 
convenience or  injury  to  the  one 
party  or  the  other."  Citing  New 
Memphis  G.  &  L.  Co.  v.  Memphis. 
72  Fed.  952;  High,  Injunctions,  §  13. 

4  Coffeen  v.  Brunton,  5  McLean, 
256;  Kryptok  Co.  v.  Stead  Lens  Co., 
C.  C.  A..  190  Fed.  767:  Markov  Tel. 
&  Cable  Co.  v.  City  of  TexarkaHa, 
Ark..  199  Fed.  347:  Smith  v.  Cinn- 
mings,  1  Fish.  Pat.  Cas.  152; 
French  v.  Brewer.  3  Wall.  Jr.  346; 
Pentlarge  v.  Beeston.  1  Fed.  862; 
Kirby  Bung  Mfg.  Co.  v.  White,  1 
Fed.  604;  Texas  &  Pac.  Ry.  Co.  v. 
Interstate  Tr.  Co..  45  Fed.  5. 

6  International  Mercantile  Marine 
Co.  v.  Stranahan.  155  Fed.  428. 

6  Knickerbocker  Tr.  Co.  v.  City  of 
Kalamaoo,  182  Fed.  865.  where  the 
complaint  charged,  and  the  answer 


912 


INJUNCTIONS. 


[§   29± 


ciently  strong  to  justify  a  permanent  injunction  upon  the  final 
hearing,7  hnt  it  should  usually  be  denied  when  the  proofs  are 
equally  balanced.8  It  has  been  said  to  be  no  objection  to  the 
grant  of  a  preliminary  injunction,  that  it  involves  the  decision 
of  an  issue  of  law  which  virtually  determines  the  case.9  An 
injunction  was  granted  against  an  illegal  ordinance  regulating 
water  rates  for  one  year,  although  an  appeal  from  the  order 
could  not  be  determined  before  the  end  of  the  year.10  In  a 
suit  under  the  act  to  protect  trade  and  commerce  against  unlaw- 
ful monopolies,  a  preliminary  injunction  was  refused  when 
doubtful  questions  of  law  and  fact  were  involved,  partly  upon 
the  ground  that  as  the  United  States  tendered  no  bond,  jnore  in- 
jury  would  result  to  the  defendant  from  the  issue  than  to  the 
plaintiff  from  the  refusal  of  the  writ.  Unless  the  validity  of 
a  patent  has  been  adjudicated  in  another  case,  a  preliminary 
injunction  to  restrain  its  infringement  will  nearly  always 
be  refused,  if  the  defendant  has  ample  pecuniary  respon- 
sibility, or  gives  security  against  loss  to  the  plaintiff,  and 
is  willing  to  keep  an  account  of  his  manufacture,  use,  and  sale  > 
of  the  article  claimed  to  be  patented,  and  the  damages  which  the 
plaintiff  will  suffer  can  be  readily  reckoned  in  money.11  Danger 
of  inconvenience  to  the  public  is  a  ground  for  refusing  a  pre- 


did   not  deny,   the    intention   of   the 
city  to  declare  the   forfeiture. 

7  Ford  v.  Taylor,  140  Fed.  356; 
McCarthy  v.  Bunker  Hill  &  S.  Min. 
&  C.  Co..  et  al..  147  Fed.  981:  Gold- 
field  Consol.  Mines  Co.  v.  Goldfield 
Miners'  Union  Xo.  220,  159  Fed. 
50,0;  Central  of  Georgia  Ry.  Co.  v. 
Railroad  Com.  of  Ala..  161  Fed. 
925:  Andrae  v.  Redfield.  12  Blatchf. 
407,  Fed.  Cas.  Xo.  367.  Contra, 
Henry  Gas  Co.  v.  U.  S„  C.  C.  A., 
191   Fed.  132. 

8  Woodside  v.  Tonopah  &■  G.  R. 
Co..  1S4  Fed.  358;  Mackay  Tel.  & 
Cable  Co.  v.  City  of  Texarkana, 
Ark..  199  Fed.  347.  See  Corcoran 
v.  Xat.  Tel.  Co.  of  West  Virginia, 
C.  C.  A..  175  Fed.  761  :  Jackson  Co. 
v.  Cardiner  Inv.  Co.,  C.  C.  A.,  200 
Fed.   113. 


9  Minneapolis  General  El.  Co.  v. 
City   of   Minneapolis,   194   Fed.  215. 

10  Los  Angeles  C.  \Y.  Co.  v.  Los 
Angeles,  88  Fed.  720;  U.  S.  v.  Jel- 
lico  M.  C.  &  C.  Co.,  43  Fed.  898. 

11  Foster  v.  Moore,  1  Curt.  279; 
Morris  v.  Shelbourne,  8  Blatchf. 
266;  Gilbert  &  B.  Mfg.  Co.  v.  Buss- 
ing. 12  Blatchf.  426:  Swift  v.  Jenks, 
19  Fed.  641;  Hoe  v.  Boston  D.  Adv. 
Co.,  14  Fed.  914;  V.  S.  Annunciator 
Co.  v.  Sanderson.  3-  Blatchf.  i84. 
But  see  Gibson  v.  Van  Dresar.  1 
Blatchf.  532:  Tracy  v.  Torrey.  2 
Blatchf.  275;  Parkhurst  v.  Kins- 
man. 2  Blatchf.  78:  McYVilliams 
Mfg.  Co.  v.  Blundell.  11  Fed.  419. 
The  rules  of  decision  upon  motions 
for  injunctions  in  patent  suits  are 
explained  in  §  277.  supra. 


205] 


WKIT   OF   IXJ  INC'l'ION. 


913 


liminarv  injunction.12  A  preliminary  injunction  may  also  be 
refused  when  the  plaintiff  has  been  guilty  of  laches  in  apply 
ing  for  it;  even  though  his  delay  has  not  been  such  as  t<>  dis- 
entitle him  to  a  perpetual  injunction  after  the  hearing.1*  If 
an  injunction  has  been  obtained  by  an  interlocutory  order,  and 
it  is  desired  to  continue  it  provisionally  after  a  hearing,  a 
direction  to  that  effect  should  be  inserted  in  the  interlocutory 
decree  then  entered.14  The  court  may  refuse  to  continue  an 
injunction  when  the  cause  for  which  it  was  granted  has  been 
removed  before  the  hearing-.15  In  such  a  case,  the  decree  should 
usually  declare  that  the  injunction  has  properly  been  issued 
and  award  the  complainants  costs.16  Upon  the  argument  of  a 
motion  for  an  injunction  the  defendant  can  raise  any  defense 
to  the  substance  of  the  hill  that  would  he  set  up  by  a  demurrer.17 
Upon  an  interlocutory  application  a  decision  of  a  Federal  court 
in  another  circuit  will  usually  he  followed,18  but  not  necessarily 
the  decision  of  a  State  court  which  was  made  after  the  contro- 
versy between  the  parties  to  the  suit  in  the  Federal  court  had 
arisen.19  The  court  may  refuse  to  grant  an  injunction  although 
all  parties  consent  that  one  shall  issue.20 

§  295.  The  writ  of  injunction.  Immediately  upon  the 
entry  of  an  order  for  an  injunction,  the  party  who  obtained  it. 
is  entitled  to  have  the  writ  issued  from  the  clerk's  office  and 
served.1  He  should  attend  to  this  within  a  reasonable  time. 
Where  the  writ   was   tested  six  weeks  after  the  entry  of  the 


12  Southwestern  B.  El.  L.  &  P.  Co. 
v.  Louisiana  El.  L.  Co..  45  Fed.  893; 
supra.  S   277. 

13  Gordon  v.  Cheltenham  Ry.  Co., 

5  Beav.  2-20:  Mundy  v.  Kendall,  23 
Fed.  591  :  Kerr  on  fnj.  22.  23.  A 
delay  of  several  months  while  the 
railway  company  was  testing  the  ef- 
fect of  a  reduct  ion  of  rates,  is  not 
such    laches.      Love    v.    Atchison.    T. 

6  S.  F.  Ry.  Co;,  C.  C.  A.,  18.")  Fed. 
321       ' 

WDaniell's  Ch.  Pr.  (2d  Am.  ed.i 
1902;  Gardner  v.  Gardner,  87  X.  Y. 
14. 

15  Lewis  Pub.  Co.  v.  Wyman,  108 
Fed.  756. 

V  Fed.  Prac.  Vol.  L— 58. 


16  Smith  v.  Engersoll  Sergeant 
Roek  Drill  Co.,  7  Misc.  I  \.  Y.) 
374.  377:  Williams  v.  United  Wire- 
less Teleg.  Co..  1  N.  Y.  Sup.  Ct.; 
Bischoff,  J.,  X.  Y.  L.  J.  April  24. 
1912,  in  which  the  author  was  coun- 
sel. 

17  Ladd  v.  Oxnard.  75  Fed.  703. 

is  Dady  v.  Sa.  4  A.  Itv..  112  Bed. 
838:  'supra,  §  277. 

W  Jackson  t'o.  v.  Gardiner  Inv. 
Co..  c.  C.  A..  2(i(i  Fed.  113. 

20  Nat.  Phonograph  Qo.  v.  Schle- 
gel,   1 17   Fed.  624. 

§  295.  1  Daniell's  Ch.  Pr.  (2d 
Am.  ed.)    1810.   1817,  19(14. 


914 


INJUNCTIONS. 


[§  295 


order  granting  it  and  was  not  served  till  nearly  a  year  after- 
wards, the  court  refused  to  punish  the  defendant  for  disobed- 
ience, saving  that,  after  the  lapse  of  so  much  time,  the  plain- 
tiff should  have  applied  for  leave  to  use  the  writ.2     Like  all 
other  writs  and  process  issuing  from  the  courts  of  the  United 
States,  writs  of  injunction  must  be  under  the  seal  of  the  court 
from  which  they  issue,  and  signed  by  the  clerk  thereof.     Those 
issuing  from  the  Supreme  Court  or  a  Circuit  Court  must  bear 
teste,  from  the  date  of  such  issue,  of  the  Chief  Justice  of  the 
United  States,  or,  when  that  office  is  vacant,  of  the  associate 
Justice  next  in  precedence,  and  those  issuing  from  a  District 
Court  must  bear  teste  of  the  judge,  or,  when  that  office  is  vacant, 
of  the  clerk  thereof.3    "The  orders  pronounced  by  the  court  in 
cases  of  special  injunctions  before  answer,  have  varied  at  dif- 
ferent periods.    The  form  most  frequently  adopted  enjoined  the 
party  'till  further  order/    In  some  cases  the  injunction  has  been 
till  'appearanre  and  further  order;'  in  other  till  'answer  and 
further  order.'     But  the  form   at  present  used,   and  which  is 
established  by  a  rule  laid  down  by  Lord  Eldon,  is  'till  answer  or 
further  order.'     This  has  been  adopted  as  giving  defendant  the 
liberty  to  move,  if  necessary,  to  dissolve  upon  affidavit,  before 
he  has  answered  the  bill."4     The  writ  should  contain  a  concise 
description  of  the  particular  acts  or  things  in  respect  to  which 
the  defendant  is  enjoined ; 5  and  should  conform  to  the  direc- 
tions of  the  order  granting  the  injunction.6     If,  however,  the 
writ  is  broader  than  the  order  warrants,  the  defendant  should 
apply  to  the  court  for  an  order  setting  it  aside  or  modifying  it.7 
It  seems  that  he  is  not  justified  in  disobeying  it  and  raising 
the  objection  when  a  motion  is  made  for  an  attachment  against 
him.8     "The  defendants  ought  to  be  informed  as  accuratelv  as 
the  case  permits  what  they  are  forbidden  to  do."  9     It  seems 


2  McCormick  v.  Jerome,  3  Blatehf. 
48G. 

3  1'.  S.  R.  S.,  §§  911,  912. 

*  Darnell's  Ch.  Pr.  (2d  Am.  ed.) 
1895;  Read  v.  Consequa,  4  Wash. 
174.  See  Bolton  v.  London  School 
Board,  7  Ch.  D.  700,  771;  Gardner 
v.  Gardner.  87  X.  Y.  14;  State  v, 
Wakeley,  -28  Neb.  431..  437. 


5  Whipple       v.       Hutchinson,       4 
Blatch.  190. 

6  Sickles  v.  Borden,  4  Blatehf.  14. 

7  Ibid. 

8  Ibid. 

9  Swift  &  Co.  v.  U.  S.,  196  U.  S. 
375,  401,  49  L.  ed.  518,  52G. 


§  295] 


WRIT   OF  INJUNCTION. 


015 


that  a  writ  is  insufficient,  which  designates  the  acts  sought  to 
be    enjoined,    by   a   reference   to    the    bill,    without    describing 
them.10    When  a  carrier  has  been  adjudged  to  have  violated  the 
interstate  commerce  law,  the  court  should  only  enjoin  certain 
specific  violations.     An  injunction  should  not  be  granted  com- 
manding the  carrier,  in  general  terms,  not  to  violate  the  act 
in  the  future  in  any  particular.11     The  injunction  should  not 
include   a  direction,   after  specific   inhibitions,   forbidding   the 
defendant  to  act  by  any  other  method  or  device,  the  purpose  and 
effect  of  which  is  to  restrain  commerce  as  aforesaid.'' 12     The 
English  practice  was  to  mention  in  the  writ  a  money  penalty  to 
be  incurred  by  the  defendant  if  he  disobeyed  it ;  but  that  docs 
not  seem  to  be  necessary  here.13     The  writ  should  be  addressed 
to  the  persons  whom  it  is  desired  to  enjoin.14     If  the  injunction 
is  against  waste,  or  forbids  the  continuance  of  a  nuisance,  or 
some  other  similarly  inequitable  act,  it  is  usually  addressed  to 
the  defendant,  his  servants,   workmen,   and   agents.15      No  re- 
straint is  laid  upon  the  agent,  servant  or  employee  personally, 
but  merely  as  the  agent,  servant  or  employee  of  the  enjoined 
defendant.16     Notwithstanding  the  injunction,  upon  ceasing  to 


10  Whipple  v.  Hutchinson,  4 
Blatchf.  190;  Sullivan  v.  Judah,  4 
Paige    (X.  Y.),  444. 

11  N.  Y.,  X.  H.  &  H.  R.  R.  Co.  v. 
Interstate  Commerce  Commission, 
200  U.  S.  361,  404,  50  L.  ed.  515, 
526. 

12  Swift  &  Co.  v.  U.  S.,  196  U.  S. 
375,  401,  49  L.  ed.  518,  526. 

13  Low  v.  Hauel,  1   Wall.  Jr.  345. 
HDaniell's  Ch.  Pr.    (2d  Am.  ed.) 

1817. 

15  Kerr  on  Injunctions.  559;  Dan- 
iell's  Ch.  Pr.  (5th  Am.  ed.)  1673; 
Humphreys  v.  Roherts,  Seton's  De- 
crees ( 4th  ed.),  173;  in  re  Lennon, 
166  U.*S.  548.  41  L.  ed.  1110.  In 
Dadirrian  v.  Gullian,  79  Fed.  784: 
"The  writ  is  directed  specifically  to 
the  defendants  in  the  suit,  and  then 
generally,  without  naming  them,  to 
their     servants,     agents,     and     em- 


ployees. The  ohject  of  this  general- 
iation  is  to  prevent  the  defendants 
from  doing  by  others  that  which 
the  court  has  forbidden  them  to  do 
personally;  from  accomplishing  in- 
directly a  result  prohibited  by  the 
court.  The  full  effect  of  the  order 
is  that  the  defendant  shall  not  do 
the  unlawful  act  himself,  neither 
shall  his  agent,  servant,  or  employee 
do  it  for  him.  nor  shall  the  defend- 
ant do  it  as  the  agent,  servant  or 
employee  of  another.  Potter  v.  Mul- 
ler.  1  Bond.  601.  Fed.  (as.  No. 
11.333."  See  People  ex  rel.  Stearns 
v.  Marr.  181  X.  Y.  463,  106  Am.  St. 
I vc-i ..  .-)(i:2.  74  X.  E.  431.  3  Ann.  Oas. 
■2.")-.  infra,  §  428. 

16  Dadirrian  v.  (Jullian.  79  Fed. 
7S4:  Slater  v.  Merritt,  75  X.  Y. 
268;  Wellesley  v.  .Mornington,  17 
E-eav.   181. 


910 


INJUNCTIONS. 


[§   295 


be  the  agent,  servant  or  employee  of  the  defendant,  a  person  not 
named  in  the  injunction  is  free  to  act  for  himself  in  the  pro- 
tection of  his  own  rights,  although  it  involves  his  doing  the 
very  thing  forbidden  him  when  in  the  employ  of  his  former 
master.17  He  may  avoid  obedience  to  a  mandatory  injunction, 
which  does  not  name  him,  bv  actually  ceasing  to  be  an  em- 
ployee  of  the  defendant.18  He  may  enter  the  service  of  another 
master,  who  is  a  stranger  to  the  suit,  and  then  be  as  free  as  the 
latter  from  the  obligation  to  obey  the  court's  decree.19  It  has 
been  said:  that  "those  who  are  followers  or  companions  of  de- 
fendants, who  are  strikers,  are  and  will  be  bound  by  the  writ 
of  injunction  issued  herein,  to  the  same  extent  and  as  fully  as 
if  named  in  the  writ."20  Where  an  injunction  restrained  the 
defendants,  "and  all  other  persons  having  knowledge  of  this 
injunction  order;''  it  was  held:  that  it  affected  only  the  agents 
or  servants  of  the  defendants,  or  those  acting  in  combination  or 
collusion  with  them,  or  in  assertion  of  their  rights  or  claims; 
and  that  persons  not  in  any  way  connected  with  them  were  not 
restrained,  and  could  not  be  punished  for  Contempt  because  they 
committed  the  forbidden  act.21  In  a  suit  to  restrain  proceedings 
in  another  court,  the  injunction  usually  is  directed  against  the 
defendants,  his  attorneys  and  agents,  even  though  the  bill  prays 
for    an    injunction    against    the   defendant    alone.22      But    the 


17  Mexican  Ore  Co.  v.  Mexican  G. 
M.  Co..  47  Fed.  351  :  Dadirrian  v. 
Gullian,  79   Fed.   784. 

18  Toledo,  A.  A.  &  X.  M.  Ry.  Co. 
v.  Pennsylvania  Co..  19  L.R.A.  395, 
54  Fed.  746;  Dadirrian  v.  Gullian, 
70  Fed.  784. 

19  Dadirrian  v.  Gullian.  79  Fed. 
7S4:  People  v.  Randall.  73  X.  Y. 
410:  Slater  v.  Merritt,  75  X.  Y.  268. 

20  Union  Pac.  R.  Co.  v.  Ruef,  120 
Fed.  102,  100.  In  Anderson  v.  In- 
dianapolis Drop  Forging  Co.,  34 
Did.  App.  100.  72  X.  E.  277,  it  was 
held  that  pickets  for  a  labor  union, 
although  not  made  defendants  in  an 
injunction  suit,  are  amenable  to  the 
injunction  restraining  the  union, 
and  all  persons  confederated  or  con- 


spiring with  it,  from  obstructing 
the  business  of  plaintiff  and  its  em- 
ployes, where  they  have  actual  no- 
tice of  such   injunction. 

21  Rigas  v.  Livingston.  178  X.  Y. 
20.  [n  State  v.  Porter,  76  Kan.  411, 
13  L.R.A.  (X.S.)  402.  91  Pac.  1073, 
held:  that  the  purchaser  of  land, 
with  knowledge  of  an  injunction  en- 
joining his  grantor  and  the  former's 
agents,  successors,  assigns,  and  all 
persons  whomsoever  from  maintain- 
ing a  liquor  saloon  on  such  land 
could  be  punished  for  contempt  of 
the  injunction.  This  case  was  criti- 
cised in  xxi  Harv.  Law  Rev.  220. 
See  infra,  $  428. 

22DanieU'8  Ch.  Pr.  (5th  Am. 
ed.)    1673. 


§    296]  DISSOLUTION   OF   IX. JUNCTIONS.  917 

latter's  tenants  cannot  l>e  thus  enjoined,  unless  they  have  be- 
come such  after  the  commencement  of  the  suit  or  have  been 
made  parties  to  it.23  In  one  case  an  injunction  was  granted 
against  all  persons  acting  in  concert  with  the  defendants  named 
and  under  their  direction  and  control.^4  The!  writ  should  be  in- 
dorsed or  subscribed  with  the  name  and  office  address  of  the 
plaintiff's  solicitor,  or  with  the  name  and  residence  of  the 
plaintiff  if  he  appears  in  person.25 

§  296.  Dissolution  and  modification  of  interlocutory  in- 
junctions. The  common  injunction  was  dissolved  as  of  course 
upon  the  defendant's  putting  in  a  sufficient  answer  to  the  bill. 
The  practice  in  such  a  ease  was  for  him  to  obtain  an  order  nisi, 
npon  the  return  of  which  the  injunction  was  always  dissolved, 
unless  the  plaintiff  could  show  that  the  answer  was  insufficient 
for  the  purpose  either  of  defense  or  of  discovery.1  A  special 
injunction  can  only  be  dissolved  by  a  special  motion,  either  in 
open  court  or  at  a  special  hearing  appointed  elsewhere  for  that 
purpose  by  a  judge  of  the  court.2  The  motion  may  be  made  at 
any  time  before  decree,3  even,  it  seems,  before  the  defendant  has 
been  served  with  process,4  and  before  he  has  appeared.5  When 
a  special  injunction  has  been  granted  against  several  defendants, 
any  of  them  may  move  to  dissolve  it  as  against  himself;  but 
he  should  in  that  case  serve  the  others  as  well  as  the  plaintiff 
with  a  notice  of  his  motion.6  Tn  one  case  after  answer,  a  notice 
left  at  the  office  of  the  solicitor  for  the  plaintiff  during  his 
absence  from  the  city  three  days  before  the  motion  was  held 
sufficient.7     Tf  the  motion  to  dissolve  is  made  before  answer,  it 

23  Hudson  v.  Coppard,  21)  Beav.  3  Kerr  on  Inj.  500;  Darnell's  (li. 
4;  Kerr  on  Inj.  543.  Pr.    (5th    Am.   ed.)     1.675s    Met.    G. 

24  U.  S.  v.  Elliott,  64  Fed.  27,  35.  &  S.   Excli.  v.  Chicago  B.  of  T.,   15 

25  Kerr  on  Inj.  550;   Daniell's  Ch.  Fed.  847. 

Pr.    (5th   Am.  ed.)    1074.  4  Shields    v.    McClung.    6    W.    Va. 

§  296.     i  Daniell's    Ch.     Pr.     (2d  7!>. 

Am.  ed.)    1820-1821);   Poor  v.  Carle-  5  Menzies    v.    Rodrigues.    1     Priee, 

ton,  3  Sumn.  70;  New  York  v.  Con-  92. 

necticut,  4   Dall.   1,  3,   note   1,  1   L.  6  Thompson  v.  Geary.  5  Beav.  131  ; 

ed.  715,  716,  per  Washington.  J.  Kerr  on  Inj.  504.     But  sec  Daniell's 

2  Kerr  on   Inj.  501 :   Daniell's  Ch.  Ch.  Pr.   (5th  Am.  ed. )    1070.  note   1. 

Pr.     1675;     Wilkins     v.    Jordan,     3  7  Caldwell   v.    Walters,   4    Craneh. 

Wash.   C.  C.  226;   Caldwell  v.  Wal-  C.  C.  577. 
ters,  4  Crancli,  C.  C.  577. 


918 


INJUNCTIONS. 


[§  296 


must  be  supported  by  affidavits  or  documentary  proof  contra- 
dicting the  statements  upon  which  the  injunction  was  obtained,8 
unless  the  defendant  can  show  that  it  is  plain  upon  the  face 
of  the  plaintiff's  bill  and  affidavits  that  he  was  not  entitled  to 
the  injunction,  when  the  motion  will  be  granted.9  When  the 
injunction  has  been  irregularly  issued,  the  defendant  should 
move  to  discharge  the  order  "ranting  it.10  If  he  should  move  to 
dissolve  it,  he  might  be  held  to  have  by  so  doing  recognized  its 
regularity.11  It  was  held  that  after  a  demurrer  put  in  by  him 
to  the  bill  had  been  overruled  a  defendant  could  only  move  to 
dissolve  by  leave  of  the  court ;  which  was,  in  one  case,  only 
granted  upon  his  affidavit  that  the  demurrer  was  not  interposed 
for  delay,  and  his  giving  security  to  pay  all  damage  to  the  plain- 
tiff thereby  caused.12  "Where  the  application  for  dissolution  was 
made  after  answer,  it  was  originally  thought  that  the  plaintiff 
could  not  show  that  any  of  the  allegations  therein  contained 
were  false ; 13  but  that  doctrine  has  been,  in  this  country  at 
least,  exploded,14  and  it  is  well  settled  that  the  plaintiff  not 
only  may  dispute  the  truth  of  such  allegations,  whether  they  are 
positive  or  negative,  but  is  at  liberty  to  file  counter  affidavits 
in  reply  to  new  matter  contained  in  the  defendant's  affidavits 
or  answer.15  It  has  been  held:  that  a  preliminary  injunction 
will  not  be  dissolved  upon  an  answer  admitting  the  material 
equities  of  the  bill  and  setting  up  new  matter  in  avoidance.16 
When  a  stay-order  has  been  made,  and  simultaneous  appli- 
cations, by  the  defendant  to  discharge  the  stay-order,  and  by  the 
plaintiff  for  an  injunction,  are  heard  together  the  plaintiff  has 


SDaniell's  Cr.  Pr.  (5th  Am.  ed.) 
1676;  Young  v.  Grundy,  6  Cranch, 
51,  3  L.  ed.  149. 

9  Hudson  v.  Maddison,  12  Sim. 
416;  Kidwell  v.  Masterson.  3 
Cranch,  C.  C.  52:  Fenwick  Hall  Co. 
v.  Town  of  Old  Saybrook,  66  Fed. 
389. 

lOAngier  v.  May,  3  W.  R.  330; 
DanielPs  Ch.  Pr.  (5th  Am.  ed.) 
1676:   Kerr  on  Inj.  564. 

11  Vipan  v.  Mortlock,  2  Meriv. 
476;   Kerr  on   Inj.  564. 

12  Woodw -orth  v.  Edwards,  3  W. 
&  M.  120. 


iSDaniell's  Ch.  Pr.  (5th  Am.  ed.) 
1676,  note  4. 

14  Poor  v.  Carleton,  3  Sumn.  70; 
U.  S.  v.  Parrott.  1  McAll.  271;  Orr 
v.  Littlefield,  1  \Y.  &  M.  13;  Orr  v. 
Merrill.  1  W.  &  M.  376;  Clum  v. 
Brewer,  2  Curt.  506. 

15  Day  v.  New  Eng.  C.  S.  Co..  3 
Blatchf.  154;  Daniell's  Ch.  Pr.  (5th 
Am.  ed.)  1676;  Shoemaker  v.  Nat. 
Mech.  Bank,  1  Hughes.  101. 

16  Pere  Marquette  R.  Co.  v.  Brad- 
ford, 149  Fed.  492. 


296] 


DISSOLUTION   OF   INJUNCTIONS. 


919 


the  right  to  open  and  close  the  argument.17  If  upon  the  appli- 
cation to  dissolve  an  injunction  the  court  is  not  satisfied  that 
the  plaintiff  is  entitled  to  retain  it,  it  will  dissolve  the  injunc- 
tion, and  may  then  direct  an  issue,  an  action  at  law,  or  a  refer-, 
ence  before  the  hearing.18  If,  however,  it  is  satisfied  that  the 
plaintiff  is  entitled  to  the  writ,  the  court  will  direct  the  in- 
junction to  be  continued  until  the  hearing.19  Formerly 
where  the  court  dissolved  the  injunction  upon  the  ground 
that  it  appeared  upon  the  face  of  the  bill  that  the  plaintiff  was 
not  entitled  thereto,  and  that  was  the  only  relief  prayed  for  by 
him,  it  could  at  the  same  time  dismiss  the  bill;  for  the  plain- 
tiff had  still  the  right  to  bring  the  suit  to  a  hearing.20  If  the 
question  is  left  in  doubt  upon  the  motion  to  dissolve,  it  seems 
that  the  motion  will  be  denied.21  A  modification  of  an  injunc- 
tion may  be  refused  in  a  case,  where  if  asked  before  the  in- 
junction was  issued  it  might  have  been  allowed  but  equities 
have  since  arisen.22  The  ambiguity  of  the  order  granting  the 
injunction  is  sufficient  ground  for  its  dissolution  or  modifi- 
cation.23 The  defendant's  delay  in  moving  to  dissolve  the  in- 
junction may  deprive  him  of  his  right  to  have  it  dissolved.24 
When  a  special  injunction  has  been  granted  after  a  full  hearing, 
it  will  not  be  dissolved  except  on  new  evidence.25  It  has  been 
held  that  a  preliminary  injunction  will  not  be  dissolved  after 
answer  upon  grounds  shown  by  affidavits,  wdiich,  from  their 
not  having  been  set  up  in  the  answer,  cannot  be  used  at  the  hear- 


17  Fraser  v.  Whalley,  2  Hem.  & 
M.  10. 

iSDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
3897. 

19  Packington  v.  Packington,  1 
Dick.  101;  Daniell's  Ch.  Pr.  (5th 
Am.  ed.)    1678. 

20  Brooke  v.  Clarke,  1  Swanst. 
550;  Blow  v.  Taylor.  4  Hen.  &  Muni. 
(Ya.)   150.   But  see  infra,  §  300. 

21  Cooper  v.  Mattheys,  5  Penn.  L. 
J.  38;  s.  c,  Law  R.  413;  Fisher  v. 
Lord,  6  West  L.  J.  137;  Woodworth 
v.  Hall.  1  W.  &  M.  389;  Woodworth 
v.  Rogers,  3  W.  &  M.  135;  Spark- 
man  v.  Higgins,  1  Blatchf.  205.  But 
see   Edison   El.   L.   Co.   v.   Westing- 


house  El.  &  Mfg.  Co.,  54  Fed.  504. 

22  Sperry  &  Hutchinson  Co.  v.  .Me- 
chanics' Clothing  Co.,  128  Fed.  loi;,. 
It  has  been  said  that  a  modification 
of  the  order  will  usually  he  refused 
when  its  effect  would  be  to  change 
the  position  of  the  property  affected 
by  the  suit.  Ulman  v.  Ritter.  72 
Fed.  1000. 

23  Dalglish  v.  Jarvie,  2  Macn.  & 
G.  231. 

24  Florence  S.  M.  Co.  v.  Grover  & 
Baker  S.  M.  Co..  110  Mass.  1;  Kerr 
on  Inj.  565.;  Antisdel  v.  Chicago  H. 
C.  Co..  S9  Fed.  308.  311. 

25  Woodworth  v.  Hall,  1  W.  &  M. 
389. 


020 


IXJUXCTIOXS. 


[§   20(> 


ing  of  the  whole  case.26  A  judge  will  very  rarely  dissolve  an 
injunction  granted  by  one  of  his  judicial  brethren.27  It  has 
been  said  that,  in  case  of  the  death  of  the  judge  who  made  the 
order,  the  motion  to  dissolve  it  should  be  made  before  two 
judges.28  A  temporary  injunction  may  be  modified  or  dissolved 
bv  a  District  Court  after  it  has  been  affirmed  upon  appeal.29  It 
has  been  said  that  a  Court  of  first  instance  has  no  power  to 
modify  or  dissolve  a  perpetual  injunction  contained  in  an  in- 
terlocutory decree  which  has  been  affirmed  upon  appeal.30  It  is 
the  safer  practice  for  the  defendant  to  obtain  a  clause  in  the 
order  of  affirmance  granting  leave  to  the  District  Court  to  mod- 
ify the  injunction  order.31  After  an  injunction  has  been  dis- 
solved, if  evidence  subsequently  taken  shows  that  it  was  prop- 
erly issued,  it  may  be  issued  anew.32  The  dissolution  of  an  ex 
parte  injunction  on  account  of  a  suppression  of  material  facts 
does  not  preclude  the  plaintiff  from  applying  for  another  in- 
junction on  the  merits.33 

An  injunction  may  also  be  dissolved  if  the  plaintiff  is  guilty 
of  gross  and  inexcusable  delav  in  taking  testimony  or  in  bring- 
ing  the  cause  to  a  hearing ; 34  or  by  inequitable  conduct,  such 
as  a  misrepresentation  concerning  the  contents  of  the  injunction 
made  to  the  trade,35  and  in  general  if  from  a  change  of  circum- 
stances its  continuance  would  no  longer  serve  any  useful  pur- 
pose.36   The  subsequent  passage  of  an  act  of  Congress  legalizing 


26  Union  P.  B.  M.  Co.  v.  Newell, 

11   Blatchf.  .349. 

27  Cole  S.  Min.  Co.  v.  Virginia  & 
G.  H.  W.  Co..  1  Saw.  685;  Preston 
v.  Walsh,  10  Fed.  315;  Reynolds  v. 
Iron  S.  Min.  Co..  33  Fed.  354;  Klein 
v.  Fleetford,  35  Fed.  98. 

28  Westerly  Waterworks  v.  Town 
of  Westerly,  77   Fed.   783. 

29  Edison  El.  L.  Co.  v.  U.  S.  El. 
L.  Co..  C.  C.  A.,  59  Fed.  501;  An- 
drews v.  National  F.  &  P.  Works, 
61  Fed.  7S2.  790:  s.  c,  10  C.  C. 
A..  (JO,  68;  s.  c,  24  U.  S.  App.  81. 
Gf.  Standard  El.  Co.  v.  Crane  El. 
Co.,  C.  C.  A.,  76  Fed.  707,  794. 

30  p.issell  C.  S.  Co.  v.  Goshen  S. 
Co.,  72  Fed.  545. 


3lHadden  v.  Dooley.  C.  C.  A.,  74 
Fed.  429. 

32  Tucker  v.  Carpenter,  Ilempst. 
440. 

33  Fitch  v.  Rochfort.  18  L.  J.  Ch. 
45S:   High,  Injunctions.  §  1474. 

34  Read  v.  Consequa.  4  Wash.  C. 
C.  174;  Bradley  v.  Reed,  12  Pitts. 
L.  J.  65;  Schermerhorn  v.  L'Es- 
penasse,  2  Ball.  360,  1  L.  ed.  415; 
In  re  Matter  of  Schwarz,  14  Fed. 
787. 

35  Meyers  v.  Skinner.  186  Fed. 
347.     See  supra.  §  284. 

36  In  re  Jackson,  9  Fed.  493;  Re 
Pitts.  9  Fed.  542. 


§  296] 


DISSOLUTION    OF   INJUNCTIONS. 


921 


a  structure  which  has  been  enjoined  as  a  nuisance  is  a  reason 
for  the  dissolution  of  an  injunction.37     It  has  been  held   thai 
an   injunction  staying  proceedings  at  law  against   a   bankrupt 
is   dissolved    ipso   facto   by   his   discharge;38    but    remains   un- 
affected by  his  delay  in  applying  for  his  discharge.39      It  has 
been   held   that   at   the  expiration   of  a   patent    the   court   will 
dissolve  an  injunction  against  its  infringement,  and  leave  the 
complainant  no  remedy  except  his  claim  for  damages  against 
the  subsequent  sale  and  use  of  articles  manufactured  while  the 
patent   was    alive    in    infringement    thereof.40      An    injunction 
is   not    dissolved    by   an    amendment    of   the    bill41    unless    the 
amendment     substantially     changes     the     cause     of     action.42 
or  abandons  the  prayer  for  the  injunction.43     But  it  is  custom- 
ary to  include  in  the  order  allowing  an  amendment  a  direc- 
tion  that   it  be   "without   prejudice  to  the   injunction."      The 
allowance  of  a  demurrer  to  the  whole  bill   put  an  end  to  an 
injunction   which   has   previously   been    obtained;44   but   leave 
was     usually     given     to     amend     without     prejudice     to     the 
injunction,   when  the  demurrer  was   allowed   on  account   of   a 
defect  in  form,45  such  as  multifariousness;46  or  for  the  omis- 
sion of  an  allegation  that  could  readily  be  supplied  even  if  the 
same   were  essential   to  the   jurisdiction.47      The   allowance   of 
a  plea  did  not  dissolve  an   injunction.      "There  may  be  some 
equity  shown  to  continue  it.     An  order  for  its  dissolution  must 
be  obtained."48    An  injunction  is  not  dissolved  by  an  abatement 
or  bv  a  defect  in  the  suit,  but  the  defendant  must,  if  he  wishes 


37  Baird  v.  Shore  L.  Ry  Co.,  6 
Blatchf.  401  ;  Hadden  v.  Dooley,  C. 
C.   A.,   74   Fed.   429. 

38  In  re  Thomas.  3  X.  B.  R.  7. 

39  In  re  Schwartz.  14  Fed.  787, 
789. 

40  YYestinghouse  v.  Carpenter,  43 
Fed.  894,  Miller  and  Love.  J.T.;  Am. 
C.  Ry.  Co.  v.  Chicago  C.  Ry.  Co., 
41    Fed!    522.      But    see    Am.    D.    R. 

B.  Co.  v.  Rutland  U.  Co..  2  Fed. 
356;  supra,  §§  79.  277. 

41  Reed   v.   (onsequa,  4  Wash.  C. 

C.  174;  Warburton  v.  L.  &  1',.  Ry. 
Co..  2  Beav.  253.  But  see  Sharp  v. 
Ashton,  3  V.  &  B.  144. 


«  Atty.  Gen.  v.  Marsh.  16  Sim. 
572;   Kerr  on   In j.  566. 

«  Westcott    v.    Mulvane,    58    Fed. 

31)5. 

44  Schneider  v.  Lizardi,  !)  Beav. 
401.  408;  Five  &  Bruhn  v.  Cars- 
tens.  C.  C.  A.,  130  Fed.  700. 

«  Riverside  &  A.  Ry.  Co.,  v. 
Riverside.   1  IS   Fed.   730,  740. 

4e  Rawlinga  v.  Lambert,  1  J.  & 
H.  458:  Kerr  on  Inj.  505,  500;  Le- 
high Z.  &  I.  Co.  v.  V  .1.  Z.  &  I.  Co., 
43   Fed.   515.   550. 

*1  Lehigh  Z.  &  I.  Co.  v.  X.  .1.  Z. 
&   1.  Co.,  -13   Fed.  545.  5511. 

48  KiTr    on    Inj.    500;    Phillips    v. 


922 


INJUNCTIONS. 


[§  297 


to  be  freed  from  the  restraint  thereby  imposed,  move  that  the 
plaintiff  or  his  representatives  be  required  to  revive  or  take 
such  other  steps  as  may  be  necessary  within  a  limited  time, 
and  that  if  he  fail  to  do  so  the  injunction  may  be  dissolved.49 
Generally  an  interlocutory  injunction  is  dissolved  by  the  entry 
of  a  final  decree  which  does  not  continue  the  same.50 

§  297.  The  imposition  of  terms  upon  the  issue,  denial, 
dissolution,  or  continuance  of  an  injunction.  As  the  issue 
of  a  special  injunction  is  in  its  discretion,  the  court  may  impose 
terms  upon  the  plaintiff  or  defendant  when  granting  or  refusing 
the  issue,  dissolution,  or  continuance  of  the  same.1  The  usual 
terms  are  the  giving  of  a  bond  or  undertaking  with  good  se- 
curity to  indemnify  the  other  party  against  all  loss  that  may 
result  from  the  issue  or  withholding  of  the  injunction.2  These 
undertakings  were  invented  by  Vice-Chancellor  Knight  Bruce, 
and  originally  they  were  required  only  upon  ex  parte  injunc- 
tions, being  designed  to  protect  the  court  as  well  as  the  de- 
fendant from  improper  ex  parte  applications.  Later  the  prac- 
tice was  extended  to  interlocutory  injunctions  granted  upon 
notice  to  the  defendant,  first  in  special  cases,  then  generally; 
•and  now  they  are  usually  required  as  a  matter  of  course  in 
England  and  in  most  of  the  United  States,  although  in  some  of 


Langhorn,    Dick.     148:     Ferrand    v. 
Hamer,  4  M.  &  C.  143. 

49  Chowick  v.  Dimes.  3  Beav.  200 ; 
Lee  v.  Lee,  1  Hare,  622;  Chester  v. 
Life  Ass'n  of  Am.,  4  Fed.  4S7. 

50  Sweeney  v.  Hanley,  C.  C.  A., 
120  Fed.  97,  99;  Gardner  v.  Gard- 
ner. 87  N.  Y.  14.  For  a  case  where 
an  injunction  was  not  dissolved 
by  the  dismissal  of  the  hill,  see 
rndianapolis  &  X.  W.  Tr.  Co.  v. 
Consol.   Tr.   Co.   125   Fed.  247. 

§  297.  1  Russell  v.  Farley,  105  U. 
S.  433,  20  L.  ed.  1000 ;  N.  J.  &  X.  C. 
Land  &  Lumber  Co.  v.  Gardner-Lacy 
Lumber  Co..  113  Fed.  395;  Marvel 
Co.  v.  Pearl,  114  Fed.  940;  Carpen- 
ter v.  Knollwood  Cemetery.  195  Fed. 
96,  100;  Coca-Cola  Co.  v.  Nashville 
Syrup    Co.,   200    Fed.    153.    a   trade- 


mark   case   where   the    complainant 
was  required  to  give  a  bond. 

2  Russell  v.  Farley.  105  U.  S.  433, 
26  L.  ed.  1060;Kirby  Bung  Mfg.  Co. 
v.  White,  1  Fed.  604;  Northern  Pac. 
R.  Co.  v.  St.  P.,  M.  &  M.  R.  Co.. 
2  McCrary,  260;  s.  c,  4  Fed.  688. 
In  a  suit  by  a  minority  stockholder 
to  enjoin  a  sale  of  the  corporation's 
assets,  where  it  appeared  that  the 
complainant's  damage,  if  any.  was 
purely  pecuniary;  it  was  held  to  be 
proper  for  the  court  to  authorize  the 
substitution  of  a  bond  by  the  defend- 
ant, instead  of  a  preliminary  in- 
junction. Jackson  Co.  v.  Gardiner 
Inv.  Co.  C.  C.  A.,  200  Fed.  113.  See 
supra.  §  145;  and  cases  arising 
under  "Bills  to  enjoin  the  infringe- 
ment of  patents,"  supra,  §§  146, 
277. 


§  297]  INJUNCTION  BONDS.  923 

the  circuits  the  Federal  judges  are  accustomed  to  grant  in- 
junctions without  such  a  requirement.  The  reason  for  the  re- 
quirement is  that  upon  an  interlocutory  application  but  a  shorl 
time  is  allowed  for  the  preparation  of  the  case,  and  it  is  im- 
possible for  the  court  to  obtain  a  complete  knowledge  of  the 
facts.  Moreover  these  applications  are  heard  upon  affidavits,  so 
that  it  is  impossible  to  say  which  side  will  ultimately  prove 
to  be  right.  Consequently  the  court  reserves  the  right  to  in- 
demnify the  defendant  in  case  it  should  have  been  induced, 
upon  an  incomplete  state  of  facts,  to  make  a  wrong  order.3 
It  is  not  usual  to  require  security  from  the  United  States  when 
a  preliminary  injunction  is  granted  at  their  request  in  a  suit 
in  which  they  are  plaintiffs.4  It  has  been  said  that  a  bond 
should  not  be  required  unless,  the  court  is  not  reasonably  satis- 
fied of  the  right  to  the  relief  prayed  and  is  satisfied  that  the 
granting  of  the  injunction  may  cause  irreparable  injury  to  the 
defendant.5  This  doctrine  has  been  the  source  of  great  in- 
justice and  is  not  usually  followed  in  the  State  courts.6  It  has 
been  held  that,  where  there  is  proof  that  the  defendant  has  been 
guilty  of  bad  faith  in  connection  with  the  subject  of  the  suit. 
no  bond  should  be  required.7  The  court,  instead  of  requiring  a 
bond  from  the  complainant,  may  impose,  as  a  condition  of  the 
injunction  order,  that  he  pay  any  damages  sustained  by  the 
defendant  in  case  it  should  be  determined  that  the  injunction 
should  not  have  issued.  In  such  a  case,  if  complainant  avails 
himself  of  the  writ,  he  is  bound  by  the  condition;  and,  upon 
the  dissolution  of  the  injunction,  he  may  be  directed  to  pay 
the  defendant's  damages.8  In  one  ease,  where  no  such  con- 
dition was  reserved,  upon  the  dissolution  of  a  restraining  order 
the  court  directed  the  complainant  to  pay  the  defendant's  dam- 
ages, which  it  then  assessed.9  Where  the  defendant  to  an  action 
at  law  obtained,  after  verdict,  an  injunction  staying  the  pro- 
ceedings, upon  his  giving  a  bond  for  the  payment  of  the  amount 

3  Smith   v.    Day.   21    Ch.    D.    421.  '  Pasteur   C.    F.   Co.   v.   Funk,   5? 

See  Lowenfeld  v.  Curtis.  72  Fed.  105.  Fed.   14(>.   147. 

4C.*S.  v.  Jellico.  M.  C.  &  C.  Co.,  » Mica   Insulator  Co.   v.   Commer- 

43  Fed.  898.  cfal   Mica  Co..   1">7    Fed.  02. 

5  Carpenter    v.    Knolhvood    Ceme-  9  National      Phonograph      Co.     v 
terv.  105  Fed.  96.  American     Graphophone     Co.,     136 

6  See    Bigh    on    Injunctions.    (4th  Fed.    23J~ 
ed.)    SS  1619-i634a. 


924 


INJUNCTIONS. 


[§  297 


of  the  verdict  with  interest  should  the  injunction  finally  be  dis- 
solved and  judgment  entered  thereupon ;  it  was  held,  that  he 
therein-  waived  any  errors  in  the  action  at  law  previous  to  the 
grant  of  the  injunction,  and  that  he  could  not.  after  its  dissolu- 
tion, prosecute  a  writ  of  error  to  review  the  judgment  at  law 
for  alleged  errors  at  the  trial.10  The  court  often  withholds  an 
injunction  to  restrain  the  infringement  of  a  patent,11  copy- 
right,12 upon  the  filing  of  a  bond  by  the  defendant;  and  even 
upon  his  merely  undertaking  to  keep  an  account  of  his  sales 
during  the  pendency  of  this  suit.13  In  England,  injunctions 
have  been  withheld  in  other  cases  upon  the  defendants  giving 
undertakings  to  abide  by  the  further  order  of  the  court.14  The 
court  has  power,  when  dissolving  the  injunction,  to  absolve  the 
bondsman  from  liability.15  An  injunction  will  never  be  issued 
to  restrain  the  collection  of  State  taxes,  unless  the  plaintiff  first 
pays  "what  is  conceded  to  be  due,  or  what  can  be  seen  to  be  due 
on  the  face  of  the  bill,  or  be  shown  by  affidavit,  whether  conceded 
or  not."16  Interlocutory  injunctions  to  restrain  the  execution 
of  a  statute  or  order  reducing  the  price  of  gas  have  been  accom- 
panied with  the  provision  that  the  excess  over  the  rate  fixed  by 
statute,17  or  order,18  should  be  deposited  in  court  to  abide  the 
event  of  the  suit.  Interlocutory  injunctions  against  the  en- 
forcement of  statutes  reducing  the  charges  for  freight  or  passen- 
gers have  been  accompanied  by  the  provision  that  the  railway 
company  should  execute  a  bond,  conditioned  to  pay  into  the  reg- 
istry of  the  court,  at  such  times  as  ordered,  money  equal  to  the 


10  Leigh  v.  Kewanee  Mfg.  Co..  C 
C.  A..  ]47  Fed.  G93. 


ll  Supra, 

§ 

277. 

12  S  upra. 

§ 

278. 

13  Furl ni: 

sli 

v.    Bradford. 

1 

F 

ish. 

Pat.    (as. 

31 

7;    McCrary 

v. 

Perm. 

C.  Co..  .1   Fed 

.  367-;   -Mclnt; 

i- re 

v. 

W. 

U.   Tel.   Co..   113    Fed.   1022,   supra, 
§  277. 

"Atty.  Gen.  v.  M.  &  L.  Ry.  Co., 
1  (Eng.)  Ry.  Cas.  436;  Jones  v.  G. 
W,  Ry.  Co..  1    (Eng.)   Ry.  Cas.  684. 

15  Russell  v.  Farley.  105  U.  S. 
403,  26  L.  ed.  1000.  Of.  Allen  v. 
Jones,  70   Fed.  (198. 

16  State    Railroad   Tax    Cases,    92 


F.  S.  575,  617,  23  L.  ed.  003.  (174; 
National  Bank  v.  Kimball.  103  U.  S. 
732.  26  L.  ed.  469:  Albuquerque  Nat. 
Bank  v.  Perea.  147  U.  S.  87.  37  ii 
ed.  91  ;  Parmley  v.  Railroad  Cos.,  3' 
Dill.  25;  Huntington  v.  Palmer.  8 
Fed.  449;  supra.  §  153. 

17  Consolidated  Gas  Co.  v.  Mayer, 
146  Fed.   150. 

18  Buffalo  Gas  Co.  v.  Buffalo,  156 
Fed.  370;  Lincoln  Gas  Co  v.  Lin- 
coln. 223  U.  S.  349.  56  L.  ed.  466; 
San  Francisco  Gas  &  FI.  Co.  v.  City 
and  County  of  San  Francisco,  lu'4 
Fed.  884;  Pacific  Tel.  &  Tel.  Co.  v. 
City  of  Los  Angeles,  192  Fed.  1009. 


§  298] 


INJUNCTION    BONUS. 


925 


difference  between  the  amount  collected  and  that  which  would 
have  been  received  had  the  statute  been  obeyed  ;  and  that  each 
ticket  buyer  should  receive  a  coupon  for  the  payment  by  the  reg 
istry  clerk  of  the  court  of  the  excess  stated,  if  the  act   should 
be  finally  sustained.19 

§  298.  Collection  of  injunction  bonds.  It  lias  been  held 
at  Circuit,  that  when  the  court  upon  the  final  hearing  dissolves 
an  injunction  previously  granted,  or  grants  an  injunction  pre 
viously  denied  upon  the  giving  of  a  bond  or  undertaking,  the 
successful  party  can  have  his  damages  assessed  and  the  bond  or 
undertaking  enforced  bv  the  court  in  the  same  suit,  without  be- 
ing  required  to  bring  a  new  action  at  law.1  Where  the  amount 
of  the  recovery  is  uncertain,  the  sureties  should  have  notice 
of  the  application  to  enforce  the  bond.2  A  District, 
Court  has  jurisdiction  of  an  action  at  law  upon  the 
bond  where  it  exceeds  $3,000,  irrespective  of  the  citizenship 
of  the  parties,  because  the  suit  arises  under  the  laws  of  the  Tint- 
ed States.3  The  validity  of  the  injunction  bond  is  not  affected 
by  the  fact,  that  it  was  dated  prior  to  the  order,  where  the 
sureties  justified  and  the  bond  was  filed  after  the  order  was 
made.4  The  bond  or  undertaking  inures  to  the  benefit  of  the 
defendant  who  suffers  injuries,  irrespective  of  the  exact  time 
when  he  has  knowledge  of  the  pendency  of  the  action  or  ap- 
pears therein.5  The  fact  that  the  defendant  is  a  woman,  and 
that  the   undertaking  is   to   make  good  to  the   defendant   "all 


19  Hunter  v.  Wood,  209  U.  S.  205, 
207,  52  L.  ed.  747,  748. 

§  298.  iLea  v.  Deakin,  13  Fed. 
5] 4;  Coosaw  Mini  Co.  v.  Farmers' 
Min.  Co..  51  Fed.  107:  Lamb  v. 
Ewing.  C.  C.  A..  54  Fed.  209;  st<i>ra. 
§51.  See  also  Russell  v.  Farley.  105 
U.  S.  433,  26  L.  ed.  1060;  Leslie  v. 
Brown,  C.  C.  A..  90  Fed.  171; 
Deakin  v.  Stanton,  3  Fed.  435*; 
Grundy  v.  Young,  2  Craneli.  C.  C. 
114:  Bentley  v.  Joslin.  ILmpst.  218; 
Moore  v.  Moore.  25  Beav.  S:  Sud- 
den v.  Hull.  28  Beav.  263.  Contra, 
Curtis.  J..  In  Merrylield  v.  Jones,  2 
Curt.  300;  West  v.  Fast  Coast  Cedar 
Co.,    C.    C.    A.,    113    Fed.    742.      See 


also  Bein  v.  Heath.  12  How.  1(38.  13 
L.  ed.  939;  Cimiotti  Unhairing  Co. 
v.  Am.  Fur  Refining  Co..  158  Fed. 
171  ;  afTd.  C.  C.  A.  108  Fed.  529, 
where  the  bond  provided  that  the 
damage  should  he  "•ascertained  as 
the  court  shall  direct." 

2  Coosaw  M.  Co.  v.  Carolina  M. 
Co..  74  Fed.  S(il):  Leslie  v.  Brown, 
('.  ('.  A..  9(1   l\-d.   171. 

3  Leslie  v.   Brown;  90   Fed.  171. 

4 Sailors'  Union  of  the  Pacific  v. 
Hammond  Ltirtiber  Co..  ('.  < '.  A..  15fi 

Fed.   45(1. 
5  Hutching  v.  Muim.  299  I'.  S.  2  Hi, 


L 


u. 


926 


INJUNCTIONS. 


[§  298 


damages  by  him  suffered,"  does  not  debar  her  from  recovering 
upon  the  same.6  An  undertaking  given  to  secure  a  restraining 
order  is  superseded  by  an  order  or  decree  granting  an  injunc- 
tion, which  does  not  provide  for  the  continuance  of  the  liabil- 
ity of  the  sureties ;  and  the  parties  to  the  same  are  not  liable 
for  any  damages  subsequently  accruing,  although  the  injunc- 
tion order  or  decree  is  afterwards  reversed.7  The  liability  on 
the  bond  is  not  fixed  until  the  final  decree.8  Xo  action  can  be 
maintained  upon  the  bond  until  that  time,9  and  until  then  the 
court  has  power  to  modify  or  relax  the  condition  of  the  bond 
or  to  discharge  the  same  when  the  equities  require  it.10  Only 
direct  and  proximate  damages  can  be  recovered  upon  the  bond 
or  undertaking.  Remote,  conjectural  and  speculative  damages, 
are  disallowed.11     When  the  injunction  enjoined  a  house  owner 


6Hutcliins  v.  Munri,  209  U.  S. 
246,  52  L.  ed.  770. 

7  Houghton  v.  Meyer,  208  U.  S. 
14!).  52  L.  ed.  432. 

8  Nashville.  C.  &  St.  L.  Ry.  v. 
"Railroad  Commission  of  Alabama, 
171  Fed.  223;  Southern  Ry.  Co.  v. 
Railroad  Commission  of  Alabama, 
196  Fed.  558. 

9  Nashville.  C.  &  St.  L.  Ry.  v. 
Railroad  Commission  of  Alabama, 
171    Fed.  223. 

10  Southern  Ry.  Co.  v.  Railroad 
Commission  of  Alabama,  10G  Fed. 
558.  • 

11  Smith  v.  Day,  21  Ch.  D.  421: 
Chicago  C.  R.  Co.  v.  Howison.  80 
111.  215:  Hotcbkiss  v.  Piatt.  8  Hun 
( N.  Y.),  40;  Livingston  v.  Exum, 
1!)  S.  C.  223.  See  Swift  &  Co.  v. 
Kortrecht,  C.  C.  A..  112  Fed.  709: 
Baer  v.  Fidelity  &  D.  Co.,  130  Fed. 
94.  Where  the  injunction  forbade 
interference  with  the  possession  of 
personal  property,  it  was  held  that 
the  defendant  upon  the  dissolution 
■could  recover  all  damages  caused  by 
bis  delay  in  obtaining  possession  of 
the  property,  including  any  loss 
caused  by  a  fall  in  the  market  price, 


if  it  had  a  market  price  and  could 
have  been  sold  at  once  on  the  market 
for  a  sum  nearly  equal  to  its  value, 
but  not  if  it  had  no  market  price 
and  could  not  have  been  sold  imme- 
liately  for  a  sum  "anything  like  its 
value;"  and  that  the  price  which 
the  defendant  might  have  made  by 
the  use  of  the  property  in  his  busi- 
ness was  too  remote  and  speculative 
to  be  recovered.  Lehman  v.  Mc- 
Quown.  31  Fed.  138.  It  has  been 
held:  that  "an  injunction  bond  in  an 
action  in  the  District  Court  of  the 
United  States  for  the  District  of 
Louisiana,  conditioned  that  the 
obligors  'will  well  and  truly  pay  the' 
obligee,  "defendant  in  said  injunc- 
tion, all  such  damages  as  be  may 
recover  against  us,  in  case  it  should 
be  decided  that  the  said  writ  of  in- 
junction was  wrongfully  issued,' 
which  bond  was  made  under  an  or- 
der of  the  court  'that  the  injunction 
be  maintained  on  the  complaining 
creditor's  giving  bond  and  security 
to  save  the  parties  harmless  from 
the  effects  of  said  injunction,'  is  a 
sufficient  compliance  with  the  order 
of    the    court,    and    when    construed 


298] 


INJUNCTION    BONDS. 


927 


from  completing  alterations,  without  which  the  house  was  only 
partly  habitable,  she  \v;is  allowed  to  recover  on  the  undertaking 
the  reasonable  rental  value  of  the  house  for  the  season.18  When 
an  order  restrained  the  Postmaster  General  from  refusing  to 
transmit  mail  at  second-class  rates,  the  liability  on  the  under 
taking  wa& the  difference  in  postage  on  the  matter  mailed,  while 
the  restraining  order  was  in  force.13  li  has  been  held  by  the  Su- 
preme Court  that  the  fees  of  counsel  in  procuring  the  dissolu- 
tion of  the  injunction  cannot  be  included  in  the  damages  upon 
the  bond.14  This  decision  is,  however,  in  conflict  with  the 
weight  of  authority  in  the  United  States.15  The  liability  of  the 
complainant  is  limited  to  the  amount  of  the  bond.16  It  has 
been  held  that  no  further  damages,  interest,  nor  eosts,  can  be 
awarded  against  him.17  The  court  might  direct  the  insertion 
of  a  clause  in  the  bond  providing  that  counsel  fees  should  be 
included  in  the  damages.  It  has  been  held  :  that  where  no  se- 
curity is  given,  the  defendant  has  no  remedy  to  recover  dam- 
ages caused  by  an  injunction  improperly  issued,  unless,  per- 
haps, where  the  facts  will  support  an  action  for  malicious  prose- 
cution.18 It  seems  to  be  doubtful  in  England,  whether  the  un- 
dertaking can  be  enforced  upon  the  dissolution  of  the  injunc- 
tion on  the  ground  that  the  court  erred  as  to  the  law.19    An  in- 


with  reference  to  the  rule  prevailing 
in  the  Federal  courts  (contrary  to 
that  prevailing  in  the  State  courts 
of  Louisiana.),,  that  without  a  bond 
and  in  the  absence  of  malice  no 
damages  can  he  recovered  in  such 
case  means  that  the  obligors  will 
pay  such  damages  as  the  obligee 
may  recover  against  them  in  a  suit 
on  t lie  bond  itself,  whether  incurred 
before  or  after  the  giving  of  the 
bond."  Meyers  v.  Block,  120  U.  S. 
206,  30  L.  ed.  642. 

12  1!utchins  v.  Munn,  200  U.  S. 
246,  52  L.  ed.  776. 

13  Houghton  v.  Meyer,  208  U.  S. 
HO,  52  L.  ed.  432. 

HOelrichs  v.  Spain,  15  Wall.  211. 
21  L.  ed.  43.  This  rule  lias  been  ap- 
plied to  an  action  upon  an   injunc- 


tion bond,  given  in  a  court  in  the 
territory  of  Alaska.  Lindeberg  v. 
Howard,  C.  C.  A.,  140  Fed.  467. 

15  See  High  on  Injunctions.  §  16Sf>. 
and  cases  cited. 

16  Cimiptti  Unhairjng  Co.  v.  Am. 
Fur  Refining  Co..  C.  C.  A..  168  Fed. 
520:  affirming  158  Fed.  171. 

17  [bid. 

MScheck  v.  Kelly.  95  Fed.  041  ; 
City  of  St.  Louis  v.  St.  Louis  Gas- 
light  Co..  82  Mo.  354.  Contra,  Na- 
tional Phonograph  Co.  v.  Am. 
Graphophone  Co.,  136  Fed.  23  1.  See 
supra,  §  2!i7. 

19  Smith  v.  Day.  21  Cli.  D.  421. 
424.  426,  12s.  i29,  43  1.  Bui  3ee 
Nbvejlo  v.  James,  5  De  G.,  M.  &  G. 
876. 


928 


INJUNCTIONS. 


[§  299 


junction  bond,  which  is  expressed  to  be  for  the  benefit  of  the 
defendant,  imposes  no  liability  upon  the  surety  for  damages 
caused  by  the  injunction  to  a  person  not  a  party1  to  the  suit.20 
The  surety  cannot,  pending  an  appeal  from  a  decree  for  the 
defendant  to  the  injunction  suit,  maintain  a  hill  of  <jnia  timet 
to  obtain  indemnity  from  the  principal  before  the  bond  has  been 
paid  or  the  amount  of  the  liability  upon  the  same  has  been 
adjudicated.21 

§  299.  Perpetual  injunctions.  Perpetual  injunctions  can 
only  be  granted  at  the  entry  of  a  decree.1  It  is  irregular  to  grant 
one  upon  affidavits.2  In  patent,  trade-mark  and  copyright  cases, 
however,  injunctions  that  are  permanent  until  the  expiration 
of  the  plaintiff's  monopoly  are  often  granted  by  an  interlocutory 
decree  which  also  directs  a  reference  to  a  master  for  an  ac- 
counting;3 but  the  court  has  the  power  to  suspend  the  injunc- 
tion until  an  appeal  can  be  had.4  A  perpetual  injunction  is 
either  originally  granted,  or  continued.  Thev  mav  be  granted 
originally  in  all  cases  in  which  temporary  injunctions  might 
have  been  granted,  and  also  to  restrain  the  setting  up  of  out- 
standing terms  when  it  would  be  inequitable  to  do  so.5  In  order 
to  obtain  a  perpetual  injunction,  it  is  not  necessary  that  a  pro- 
visional injunction  should  have  been  asked  for.6  For  after  the 
commencement  of  a  suit  asking  to  prevent  an  act  upon  the  de- 
fendant's part,  he  is  said  to  proceed  at  his  peril,  and  if  the 
court  finally  decides  in  favor  of  the  plaintiff  it  may  order  him 
to  undo  the  result  of  his  acts  since  he  first  had  notice  of  the 
suit.7    A  perpetual  injunction  may  be  obtained  in  a  case  where  a 


20  Hays  v.  Fidelity  &  D.  Co.,  C. 
C.  A.,  112  Fed.  872. 

21  Am.  B.  &  Tr.  Co.  v.  Logans- 
port  &  M.  G.  Co..  95  Fed.  49. 

§  299.  i  Darnell's  Ch.  ;  Pr.  I  2d 
Am.  ed.)    1903. 

2  Adams  v.  Crittenden.  17  Fed.  42. 

3  Rum  ford  Cliem.  Works  v.  Heck- 
er.  11  Off.  Gaz.  330 ;  Brown  v.  Deere, 
i;  Fed.  4S4:  s.  c.  2  McCrary,  425. 

4  Barnard  v.  Gibson.  7  How.  050, 
0.-)S,  12  L.  ed.  S57.  860;  Potter  v. 
Mack,  3  Fish.  428;   Brown  v.  Deere, 

•6    Fed.   487;    Munson    v.   Mayor,    19 
Fed.  313. 


5  Askew  v.  Poulterers'  Co..  2  Ves. 
Sen.  89;  Dnke  of  Buckingham  v. 
Duchess  of  Buckingham,  2  Eq.  Cas. 
Abr.  527. 

6DanielPs  Ch.  Pr.  (2d  Am.  ed. ) 
1900.  See  also  Bailey  v.  Taylor,  1 
R.  &  M.  73. 

1  Charles  River  Bridge  v.  War- 
ren Bridge.  6  Pick.  (Mass.)  376; 
Wing  v.  Faii-haven.  8  Cush.  (Mass.) 
363;  Winslow  v.  Xayson.  113  Mass. 
411:  Smith  v.  Day,  L.  R.  13  Ch.  D. 
651. 


§    300J  APPEALS  FROM  INJUNCTION   OEDEES.  92ll 

preliminary  injunction  has  been  asked  for  and  refused,  Or  ob- 
tained and  dissolved.8  If.  however,  the  plaintiff  Has  nut  pre- 
viously obtained  a  preliminary  injunction,  and  at  the  hearing 
fails  to  make  out  a  clear  title,  he  usually  will  not  be  allowed  td 
use  the  facts  proved  by  him,  as  evidence  of  a  prima  [uric  case. 
entitling-  him  then  to  a  temporary  injunction  till  he  can  estab- 
lish his  ease  beyond  a  doubt;9  unless  indeed,  the  injunction 
sought  be  one  that  is  never  granted  before  a  hearing.10  Perpet- 
ual injunctions  may  continue  or  extend  and  make  perpetual 
preliminary  injunctions  at  the  hearing.  This  can  only  be  don*3 
by  inserting  a  direction  to  that  effect  in  the  decree.11  In  order 
to  support  a  decree  for  a  perpetual  injunction,  it  has  been  said 
that  the  court  requires  that  there  should  be  nothing  like  a  doubt 
in  the  case.12  The  granting  of  such  an  injunction  is  in  the  dis- 
cretion of  the  court,  and,  like  a  provisional  injunction,  it  may 
lie  allowed  13  or  refused  u  upon  terms.  On  account  of  the  weight 
as  a  precedent  given  to  a  decree  for  a  permanent  injunction 
in  a  patent  case,  the  court  may  refuse  to  grant  one  when  the  case 
has  been  compromised  and  the  defendant  abandons  it  at  the 
hearing.15 

§  300.  Appeals  from  injunction  orders.  ''Where  upon  a 
hearing  in  equity  in  a  district  court,  or  by  a  judge  thereof  in 
vacation,  an  injunction  shall  be  granted,  continued,  refused,  or 
■dissolved  by  an  interlocutory  order  or  decree,  or  an  application 
to  dissolve  an  injunction  shall  be  refused,  or  an  interlocutory 
order  or  decree  shall  be  made  appointing  a  receiver,  an  appeal 
may  be  taken  from  such  interlocutory  order  or  decree  granting 

8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  12 WMttirigham  v.  Woler.  2 
1900:  Bailey  v.  Taylor.  1  Pv.  &  M.  Swanst.  42S.  n.;  Troy  &  B.  R.  Co. 
73:  P.acon  v.  Spottiswoode,  1  Beav.  v.  Boston.  II.  'I'.  &  \Y.  By.  Co..  86 
382;  Bacon  v.  Jones,  4  M.  &  C.  433:  X.  Y.  107:  Daniell's  Ch.  Br.  (2(1 
Tucker   v.    Carpenter,    Hempst.    440.  Am.  ed.)    1000. 

9  Bacon  v.  S|iottiswoode.  1  Beat:  is  Southern  Exp.  Co.  \.  St  Louis, 
382;  s.  c.  on  appeal  Stt&  mm.  Ba-  I.  M.  &  S.  By.  Co..  10  Fed.  glO; 
con   v.   Jones.   4   M.   k   C.   433,   43S :  s.  c.  10  Fed.  SliO. 

Daniell's,  Ch.  Pr.  (2d  Am.  ed.)   1001.  "MeCrary  v.   Penii.  Canal   C«...  5 

BIGGAR  Foster  Comp.  3-24  1'e.l.  307:    Brown  v.  Deere,  Sf .  &  Co., 

lODaniell's  Ch.  Pr.    (2d  Am.  ed.)        6  Fed!  487. 
1001.     See  supra.  §  287.  15  Hayes   v.   Leton,   5    Fed.    521. 

"Daniell's  Cli.  Pr.  (2d  Am.  ed.) 
1002;  Gardner  v.  Gardner,  87  N. 
Y.  14.     Supra,  §  296. 

Fed.  Prac.  Vol.  I.— 59. 


930 


INJUNCTIONS. 


[§  300 


continuing,  refusing,  dissolving,  or  refusing  to  dissolve,  an  in- 
junction, or  appointing  a  receiver,  to  the  circuit  court  of  ap- 
peals, notwithstanding  an  appeal  in  such  case  might,  upon  final 
decree  under  the  statutes  regulating  the  same,  be  taken  directly 
to  the  Supreme  Court:  Provided,  That  the  appeal  must  be 
taken  within  thirty  days  from  the  entry  of  such  order  or  decree, 
and  it  shall  take  precedence  in  the  appellate  court ;  and  the  pro- 
ceedings in  other  respects  in  the  court  below  shall  not  be  stayed 
unless  otherwise  ordered  by  that  court,  or  the  appellate  court, 
or  a  judge  thereof,  during  the  pendency  of  such  appeal :  Pro- 
vided, however,  That  the  court  below  may,  in  its  discretion,  re- 
quire as  a  condition  of  the  appeal  an  additional  bond."  *  In 
the  case  of  an  injunction,  the  appeal  will  lie  from  any  order 
granting,  continuing,  refusing,  dissolving,  or  refusing  to  dis- 
solve the  same.2  There  is  no  appeal  to  the  Supreme  Court  of 
the  United  States  from  any  of  such  orders ; 3  but  the  Circuit 
Court  of  Appeals  can  certify  to  the  Supreme  Court  any  question 


§  300.  l  Jud.  Code,  §  129,  36  St. 
at  L.  1087.  Under  the  former  stat- 
ute, which  only  authorized  appeals 
"from  such  interlocutory  order  or 
decree  granting  or  continuing  such 
injunction,  or  appointing  such  re- 
ceiver," it  was  held  that  orders  were 
not  appealable  which  denied  motions 
to  dissolve  an  injunctilon  without 
specifically  providing  for  the  con- 
tinuance of  the  same.  Pioneer  Lace 
Mfg.  Co.  v.  Dodd,  C.  C.  A..  181  Fed. 
688;  Lewis  v.  Hitchman  Coal  & 
Coke  Co.,  C.  C.  A..  176  Fed.  54H. 
But  that  appeals  would  lie  from  an 
order  which  expressly  continued  the 
injunction  iipon  a  motion  for  a  re- 
hearing, Arm  at  Moving  Picture  Co. 
v.  Edison  Mfg.  Co..  C.  C.  A..  125 
Fed.  030.  from  an  order  repeating  an 
outstanding  injunction  without  ref- 
erence to  the  same.  Louis  Metzger 
&  Co.  v.  Berlin.  C.  C.  A..  104  Fed. 
426;  and  from  a  final  order  which 
when  dissolving  an  injunction  deter- 
mined that  the  complainant  had  no 
right   to  any   relief   in   the   suit   al- 


though it  did  not  in  terms  dismiss 
the  bill.  Bailey  v.  Willeford,  C.  C. 
A..  131  Fed.  242.  It  was  also  held 
that  the  complainant  could  not  ap- 
peal from  an  order  modifying  an  in- 
junction which  it  had  obtained. 
Vicksburg  Waterworks  Co.  v.  May- 
or, etc..  of  Vicksburg,  C.  C.  A..  153, 
Fed.    116. 

2  The  jurisdiction  of  the  Circuit 
Court  of  Appeals  for  the  Ninth  Cir- 
cuit of  an  appeal  from  an  interlocu- 
tory order  granting  or  dissolving  an 
injunction,  or  refusing  to  grant  or 
dissolve  an  injunction,  under  Code 
Alaska,  §  507,  giving  the  right  of  ap- 
peal from  such  orders  without  limi- 
tations as  to  the  amount  involved. 
is  not  limited  by  the  provision  of 
section  504  of  such  Code  respecting 
appeals  from  final  judgments  or  or- 
ders, and  which  limits  such  appeals 
to  cases  in  which  the  amount  or 
value  involved  exceeds  $500.  J.  P. 
Jorgenson  Co.  v.  Rapp.  157  Fed.  732. 

3  Kir  was  v.  Murphy,  170  U.  S. 
205,  42  L.  ed.  1009. 


300] 


APPEALS  FROM  INJUNCTION  ORDERS. 


931 


involved  upon  said  appeal,  even  a  question  of  jurisdiction;4 
and  the  Supreme  Court  may  by  certiorari  bring  the  decision  of 
the  Circuit  Court  of  Appeals  before  it  for  review.5  A  Circuit 
Court  of  Appeals  has  jurisdiction  of  such  an  appeal,  when  the 
only  question  in  dispute  is  one  of  jurisdiction6  and  when  the 
construction  of  the  Constitution  of  the  United  States,  or  when 
the  validity  or  construction  of  a  treaty  made  by  the  United 
States,  is  the  sole  question  involved.7  It  seems  that  where  such 
a  question  is  combined  with  other  questions  of  a  different  char- 
acter, a  Circuit  Court  of  Appeals  may,  if  the  constitutional 
or  treaty  question  is  controlling',  decline  to  take  jurisdiction  of 
the  appeal,  or  may  certify  the  constitutional  or  treaty  question 
to  the  Supreme  Court,  and  after  that  question  is  there  decided 
proceed  to  judgment  upon  the  appeal,  or  may  decide  the  whole 
case  in  the  first  instance.8  Under  this  act  the  Circuit  Courts  of 
Appeals  have  jurisdiction  to  review,  not  only  orders  granting 
preliminary  injunctions,  but  also  interlocutory  decrees  made 
after  a  hearing  upon  the  merits  which  grant  perpetual  injunc- 
tions and  refer  the  cases  to  a  master  to  ascertain  profits  and 
damages.9  And  such  appeals  are  entitled  to  a  preference  upon 
the  calendar.10  It  was  held  that  a  docket  entry  in  a  suit  to 
enjoin    the    infringement    of   a   patent,    "Opinion — decree   for 


4  In  re  Tampa  S.  R.  Co.,  168  U. 
S.  58.3.  42  L.  ed.  589. 

5  Harrhhan  v.  Northern  Securities 
Co.,  196  V.  S.  (141,  49  L.  ed.  631. 

6  In  re  Tampa  S.  R.  Co.,  108  U. 
S.  583.  42  L.  ed.  589;  Lake  Xat. 
Bank  v.  Wolfeborbugli  Sav.  Rank, 
C.  C.  A.,  7S  Fed.  517;  Northern  Pac. 
Ry.  Co.  v.  Pacific  Coast  Lumber 
Mfrs.'  Ass'h,  C.  C.  A.,  165  Fed.  1. 
But  see  Carson  v.  Com  lie,  C.  C.  A., 
86  Fed.  202;  Lake  Street  El.  R.  Co. 
v.  Farmers'  L.  &  Tr.  Co.,  C.  C.  A.,  77 
Fed.   769. 

7  Westerly  v.  Westerly  Water 
Works,  76  Fed.  407  ;  S.  <  ..  22  C.  ('. 
A..  278:  Mayor,  etc.,  of  Macon  v.  Ga. 
P.  Co.,  C.  C.  A.,  60  Fed.  781 ;  Hast- 
ings v.  Ames.  C.  C.  A.,  68  Fed.  726; 
Central  Tr.  Co.  v.  Citizens'  St.  Ry. 


Co.,  82  Fed.  1  ;  Indianapolis  v.  Cen- 
tral Tr.  Co.,  C.  C.  A.,  83  Fed.  529; 
Illinois  Cent.  R.  Co.  v.  Adams.  C. 
C.  A.,  93  Fed.  852;  Seattle  Electric 
Co,  v.  Seattle,  R.  &  S.  Ry.  Co.,  185 
Fed.  365. 

8  Carter  v.  Roberts.  177  l".  S.  490. 
500,  44  L.  ed.  801,  863;  Cincinnati, 
H.  &  D.  R.  Co.  v.  Thiebard,  177  U. 
S.  615-620,  4t  L.  ed.  911-913; 
Pike's  P.  P.  Co.  v.  Colorado 
Springs.  C.  C.  A..  105  Fed.  1.  7. 

9Lockwood  v.  Wickes.  C.  C.  A..  75 
Fed.  1  18-.  Raymond  v.  Royal  1'..  1'. 
Co.,  C.  C.  A..  70  Feil.  405.  Bn!  see 
Standard  HI.  Co.  v.  Crane  El.  Co., 
C.  C.  A..   76  Fed.  707. 

10  Star  Brass  Works  v.  General 
Flee.  Co.,  C.  C.  A.,   129  Fed.   192. 


93.2 


INJUNCTIONS. 


[§  ^oo 


complainants, "  did  not  constitute  a  decree  for  an  injunction, 
although  the  opinion  tiled  directed  that  an  injunction  be  grant- 
ed ;  and  that  no  appeal  could  be  taken  until  a  decree  was  en- 
tered.11 It  has  been  held  that  an  appeal  will  not  lie  from  an 
order  granting  an  injunction,  in  the  alternative  unless  the  de- 
fendant gives  a  bond,  which  has  been  given.12  In  such  a  case, 
where  no  bond  was  tiled  by  the  defendant  and  the  complainant 
filed  one  required  as  a  condition  to  the  writ,  an  appeal  was  en- 
tertained by  the  Circuit  Court  of  Appeals,  although  the  order 
was  affirmed.13  The  phrase  "upon  a  hearing  in  equity, "  is  not 
used  in  its  technical  meaning  of  the  trial  of  the  cause.14  As 
originally  used  in  the  statutes,  it  related  to  injunctions  only. 
The  words  seem  to  haye  been  designed  to  distinguish  a  tem- 
porary restraining  order  from  an  injunction  granted  upon  no- 
tice.15 Such  a  restraining  order,  when  granted  withmit  notice, 
is  not  appealable.16     If  the  defendant  wishes  to  bring  its  pro- 


11  Herrick  v.  Cutcheon.  C.  C.  A., 
55  Fed.  6;  s.  c.  5  C.  C.  A.  21. 

12  United  Blue  Flame  Oil  Stove 
Co.   v.    Silver   &    Co.,   C.   C.   A..    128 

'  Fed.  925. 

13  City  of  Grand  Rapids  v.  War- 
ren Bros.  Co.,  C.  C.  A.,  196  Fed.  892. 

14  Joseph  Dry  Goods  Co.  v.  Hecht. 
C.  C.  A..  120  Fed.  760,  763;  North- 
ern Pae.  Ry.  Co.  v.  Pacific  Coast 
Lumber  Mfrs.'  Ass'n.  C.  C.  A..  165 
Fed.  1;  Root  v.  Mills,  C.  C.  A..  168 
Fed.  688;  Pressed  Steel  Car  Co.  v. 
Chicago  &  A.  R.  Co.,  C.  C.  A..  192 
Fed.  517. 

15  Joseph  Dry  Goods  Co.  v.  Hecht, 
C.  C.  A..  120  Fed.  760,  763. 

16  Pressed  Steel  Car  Co.  v.  Chica- 
go &  A.  R.  Co..  C.  C.  A..  192  Fed. 
517.  There,  an  appeal  was  dis- 
missed from  an  order  providing  as 
follows  (51S):  "This  cause  having 
heretofore  come  on  before  the  court 
for  argument  upon  the  demurrer  of 
defendant  to  complainant's  bill  of 
complaint  herein,  and  the  said  de- 
murrer having  been  overruled  by 
the  court  on  the  25th  day  of  May. 


A.  D.  1911,  and  the  defendant  hav- 
ing been  given  30  days  from  said 
date  within  which  to  answer  said 
bill  of  complaint,  now  comes  the 
defendant,  by  Isaac  M.  Jordan  and 
Russel!  H.  Wiles,  its  solicitors,  and 
suggests  to  the  court  that  hereto- 
fore, by  oral  agreement  of  counsel 
in  open  court,  the  defendant  has 
refrained  from  prosecuting  its  suit 
at  law  against  the  complainant 
pending  on  the  law  side  of  this- 
court  and  referred  to  and  described, 
in  said  bill  of  complaint,  but  that 
it  does  not  wish  to  be  further  bound 
by  said  agreement  of  its  counsel. 
Thereupon,  in  consideration  of  the 
premises  and  upon  reading  the  bill 
of  complaint,  it  is  hereby  ordered 
that  the  defendant.  Pressed  Steel 
Car  Company,  its  agents  and  attor- 
neys, be  and  it  is  hereby  enjoined 
and  restrained  from  further  pro- 
ceedings in  said  suit  against  the 
complainant  described  in  the  bill  of 
complaint  herein,  being  Xo.  30.039 
on  the  law  side  of  this  court,  until 
the  further  order  of  this  court." 


§  300] 


APPEALS  FKO.M  INJUNCTION  OBDEKS. 


9 


33 


priety  before  a  court  of  review,  he  must  move  to  sel  the  same 
aside.  But  an  interlocutory  order  staying  proceedings  in  an  ac- 
tion at  law  is  equivalent  to  an  injunction,  and  if  granted 
after  hearing  is  appealable.17     Whenever  proof,   by  affidavits 

or  otherwise,  is  submitted  to  the  court  and  counsel  <>n  both  sides 
are  heard,  the  order  granting  an  injunction  or  appointing  a  re- 
ceiver, after  a  consideration  of  the  same,  is  appealable.18  An 
appeal  was  entertained  in  such  a  case,  although  counsel  for  the 
defendant  appeared  specially  to  object  to  the  jurisdiction  and 
were  heard  upon  the  merits  as  amid  ciir'nr}9  It  seems  that 
in  every  case  where  counsel  appears  in  opposition  to  a  motion 
for  an  injunction  or  receiver,  there  is  a  hearing  and  the  order 
is  appealable.20  It  has  been  held  that  an  ex  /"trie  order  ap- 
pointing a  receiver  is  appealable.21  The  fact  that  the  order  or 
decree  which  grants  an  injunction  also  gives  other  relief,  such  as 
an  accounting,  which,  if  granted  alone,  could  not  be  reviewed 
until  the  final  decree;  does  not  prevent  a  review  of  the  entire 
order.22  The  Circuit  Court  of  Appeals  can  in  every  case  re- 
verse the  whole  order  and  dismiss  the  bill  or  grant  such  other 
final  relief  on  the  merits  as  the  case  before  it  may  Justify. 
Such  final  disposition  of  the  case  will  not.  however,  ordinarily 


I'Griesa  v.  Mutual  Life  Ins.  Co., 
C.  C.  A..  165  Fed.  48. 

18  Shubert  v.  Woodward,  C.  C.  A., 

167  Fed.  47;  Root  v.  Mills,  C.  C.  A., 

168  Fed.  688. 

19  Northern  Pac.  Ry.  Co.  v.  Pacific 
Coast  Lumber  Mfrs,'  Ass'n,  C.  C.  A., 
16.5  Fed.  1. 

20  Shubert  v.  Woodward.  C.  C.  A., 
167   Fed.   47. 

21  Joseph  Dry  Goods  Co.  v.  Hecht, 
C.  C.  A..  120  Fed.  760.  Contra, 
Root  v.  Mills.  C.  C.  A..  168  Fed. 
68S;  where  it  was  held  that,  by 
moving  to  modify  such  an  ex  \><\rt< 
order,  the  defendant  acquiesced  in 
the  same,  and  that  such  application 
constituted  a  hearing,  and  that  up- 
on the  denial  of  the  latter  motion 
the  time  to  appeal  began  to  run. 

22  Smith  v.  Vulcan  Iron  Works. 
165   U.    S.   518.    41    L.    ed.   810;    lie 


Tampa  S.  R.  Co..  168  U.  S.  583,  42 
L.  ed.  58!);  Highland  Class  Co.  v. 
Schmertz  Wire  Class  Co..  C.  C.  A., 
178  Fed.  944:  Sheffield  Car  Co.  v. 
D'Arcy,  C.  C.  A..  194  Fed.  686. 

23  Smith  v.  Vulcan  Iron  Works, 
165  I".  S.  518,  41  L.  ed.  810:  AY 
Tampa  Suburban  R.  R.  Co..  168  V. 
S.  .vs.!.  42  L.  ed.  589;  Metropolitan 
Co.  v.  Kaw  Valley  District.  223  U. 
S.  519.  M\  L.  ed.  5.33:  Highland 
Glass  Co.  v.  Schmertz  Wire  Glass 
(<>..  C.  C.  A..  ITS  I'ed.  944:  l.a 
Hogue  Drainage  Diet.  No.  1  of  Iro- 
quois County.  111.  v.  Watt-.  C.  Q. 
A..  179  led.  690;  Henry  Cas  Co. 
v.  l\  S..  C.  C.  A..  191  Fed.  132; 
Sheffield  Car  Co.  v.  D'Arcy.  ('.  < '. 
A..  194  Fed.  6S6 :  Texas  Tract  inn 
Co.  v.  Barron  G.  Collier.  C.  C.  A, 
195   Fed.  65. 


9JU 


INJUNCTIONS. 


[§    300 


be  made  where  the  evidence  has  not  been  taken  by  deposition, 
unless  the  pleadings  or  the  undisputed  facts  show  that  there 
can  either  be  no  right  to  relief  or  no  defense  to  the  bill.24  The 
fact  that  previously  to  the  granting  of  an  injunction  a  demurrer 
to  the  equity  of  the  bill  had  been  overruled  and  an  answer  filed, 
does  not  prevent  the  consideration  of  that  question  by  the  appel- 
late court  in  such  a  case.25  It  has  been  held  that  a  party  who  has 
not  been  enjoined  cannot  take  such  an  appeal.26  Upon  an  ap- 
peal from  an  order  granting  or  continuing  an  injunction  the 
Circuit  Court  of  Appeals  will  ordinarily  not  review  disputed 
questions  of  fact  arising  from  contradicting  affidavits  when 
there  has  been  no  cross-examination,  especially  before  issue  is 
joined.27  But  is  has  been  held  that  this  rule  does  not  apply 
to  an  appeal  from  an  order  granting  an  injunction  restraining 
the  enforcement  of  a  statute  regulating  railroad  rates.28  Upon 
an  appeal  from  an  order  enjoining  the  infringement  of  a  pat- 
ent which  had  been  adjudged  valid  in  a  previous  suit,  where 
the  record  contained  only  the  affidavits  used  upon  the  motion 
below,  it  was  held  that  the  question  of  infringement  was  pre- 


24  Highland  Ave.  &  B.  R.  Co.  v. 
Columbian  Eq.  Co.,  3  68  U.  S.  627, 
42  L.  ed.  605;  Lake  Nat.  Bank  v. 
Wolfeborough  Saw  Bank,  C.  C.  A., 
7S  Fed.  517:  U.  S.  Rubber  Co.  v. 
Am.  0.  L.  Co.,  C.  C.  A.,  82  Fed.  248; 
Stearns-Roger  Mfg.  Co.  v.  Brown,  C. 
C.  A..  114  Fed.  939.  But  see  Fidel- 
ity I.  T.  &  S.  D.  Co.  v.  Dixon.  C. 
C.  A.,  78  Fed.  205.  Nor  in  a  suit 
to  enjoin  the  infringement  of  a  pat- 
ent which  contains  a  large  number 
of  claims  not  previously  adjudi- 
cated. Nat.  El.  Signaling  Co.  v. 
Telefunken  Wireless  Tel.  Co.,  C.  C. 
A..  200  Fed.  591.  Where  the  in- 
junction was  granted  by  the  Dis- 
trict Court  because  of  a  prior  adju- 
dication between  other  parties. 
without  considering  the  questions 
upon  the  merits,  the  appellate  court 
will  usually  make  the  same  disposi- 
tion of  the  matter  upon  an  appeal. 
Fireball  Gas  Tank  &  I.  Co.  v.  Com- 


mercial Acetylene  Co.,  C.  C.  A.,  198 
Fed.  650.     See  §  364,  infra. 

25  Henry  Gas  Co.  v.  U.  S.,  C.  C. 
A.,   191   Fed.   132. 

26  Stearns-Roger  Mfg.  Co.  v. 
Brown,  C.  C.  A.,  114  Fed.  939,  942. 

27  Kerr  v.  New  Orleans,  C.  C.  A., 
126  Fed.  920;  Railroad  Commission 
v.  Rosenbaum,  C.  C.  A.,  130  Fed. 
110;  James  v.  Wild  Goose  Mining 
&  Trading  Co.,  143  Fel.  868;  Mc- 
Carthy v.  Bunker  Hill  &  Sullivan 
Mining  and  Concentrating  Co.,  C. 
C.  A.,  164  Fed.  927;  King  Lumber 
Co.  v.  Benton,  C.  C.  A.,  186  Fed. 
458. 

28  Railroad  Commission  of  Alaba- 
ma v.  Central  of  Georgia  Ry.  Co.. 
C.  C.  A.,  170  Fed.  225.  This  excep- 
tion was  not  applied  to  an  appeal 
from  an  injunction  against  a  mu- 
nicipal ordinance  regulating  tele- 
phone charges.     City  of  Owensboro 


§  300] 


APPEALS  FROM  LXJ  L'^CTIO.N  ORDERS. 


9:55 


sented  for  review.29  The  Circuit  Court  of  Appeal-  may.30  but 
rarely  will  review  the  exercise  if  its  discretion  by  the  Circuit 
Court  upon  the  grant  or  continuance  of  an  injunction  or  the 
appointment  of  a  receiver;31  but  if  there  is  no  equity  in  the 
bill  it  will  dissolve  the  injunction32  or  the  receiver-hip.33  as 
the  case  may  be,  even  it  has  been  held  when  the  point  is  nol 
suggested  in  the  assignment  of  errors34  noj*  raised  in  the  court 
below.35  Where  the  bill  states  a  case  that  might  justify  relief, 
the  defendant  is  amply  protected  by  a  bond  and  a  dissolution 
of  the  injunction  would  cause  irreparable  injury  to  the  com- 
plainant; the  Circuit  Court  of  Appeals  will  rarely  disturb  the 
status  quo  until  after  the  final  decree.36  It  has  been  said  that 
the  Circuit  Court  of  Appeals  should  not  consider  questions  con- 
cerning the  scope  of  the  injunction  which  were  not  called  to  the 


v.    Cumberland    Telephone    &    Tele- 
graph Co.,  C.  C.  A.,  174  Fed.  739. 

29  Ferry-Halloek  Co.  v.  Herman, 
C.  C.  A.,  ]78  Fed.  550. 

30  Charles  E.  Hires  Co.  v.  Con- 
sumers* Co.,  C.  C.  A..  100  Fed.  809. 

31  Bartholomew  v.  Union  Paper  & 
Bag  Co.,  C.  C.  A.,  113  Fed.  289;  U. 
S.  Gramaphone  Co.  v.  Seaman,  C. 
C.  A.,  113  Fed.  745;  Stearns-Roger 
Mfg.  Co.  v.  Brown.  C.  C.  A.,  114 
Fed.  939;  Am.  Fur  Ref.  Co.  v. 
Cimiotti  Unhairing  Co.,  C.  C.  A., 
118  Fed.  838;  Harding  v.  Corn 
Products  Refining  Co..  C.  C.  A.,  168 
Fed.  658;  City  of  Owensboro  v. 
Cumberlanl  Telephone  &  Telegraph 
Co.,  C.  C.  A..  174  Fed.  739:  Kings 
County  Raisin  &  Fruit  Co.  v.  U.  S. 
Consol.  Seeded  Raisin  Co.,  C.  C.  A., 
182  Fed.  59;  City  of  Shelbyville, 
Ky.  v.  Glover,  C.  C.  A.,  184  Fed. 
234:  Love  v.  Atchison.  T.  &  S.  F. 
Ry.  Co.>  C.  C.  A..  185  Fed.  321; 
Interurban  Ry.  &  Terminal  Co.  v. 
Westinghouse  Electric  &  Mfg.  Co., 
C.  C.  A.,  180  Fed.  166;  King  Lum- 
ber Co.  v.  Benton,  C.  C.  A..  186  Fed. 
458;  Acme  Acetylene  Appliance  Co. 
v.  Commercial  Acetylene  Co.,  C.  C. 


A.,  192  Fed.  321:  Texas  Traction 
Co.  v.  Barron  G.  Collier.  C.  C.  A., 
195  Fed.  65;  City  of  Grand  Rapids 
v.  Warren  Bros.  Co.,  C.  C.  A..  196 
Fed.  892. 

32  Xew  Albany  Waterworks  v. 
Louisville  Banking  Co..  C.  C.  A., 
122  Fed.  776;  Kerr  v.  New  Orleans, 
C.  C.  A.,  126  Fed.  920;  Continuous 
Glass  Press  Co.  v.  Schmertz  Wire- 
Glass  Co..  C.  C.  A..  153  Fed.  577: 
Bush  v.  Pioneer  Mining  Co..  C.  C. 
A..  154  Fed.  481);  Shelbyville  v. 
Glover,  C.  C.  A..  184  Fed.  234: 
Love  v.  Atchison.  T.  .V-  S.  F.  Ry.  Co., 
C.  C.  A..  185  Fed.  321:  Acme  Ace- 
tylene Appliance  Co.  v.  Commercial 
Acetylene  Co.,  C.  C.  A..  192  Fed. 
321. 

33  Northern  Securities  Co.  v.  Tlar- 
riman.  C.  C.   A..   134    IVd.  :V.U  ;    s.  C, 

ad'.  196  U.  S.  641,  49  L.  ed.  631; 
Cabaniss  v.  Reco  Min.  Co.,  C.  C.  A.. 
116  Fed.  318. 

34  Cabaniss  v.  Reco  Min.  Co..  C. 
C.   A..    116    Fed.   31  s.  323. 

BSShuberl  v.  Woodward,  C.  C.  A., 
167   Vv<\.  47. 

86  Coram  \.  Ingersoll,  C.  C.  A.. 
133    Fed.   226.      See    City    of   Grand 


:•:;<; 


INJUNCTIONS. 


[§   304 


attention  of  the  court  below.  Where  the  court  refuses  to  read 
or  hear  affidavits  and  letters  that  are  pertinent  evidence  in  op- 
position to  an  application  for  an  injunction,  they  must  be  con- 
sidered by  the  Circuit  Court  of  Appeals.37  Where,  on  the 
hearing  of  a  petition  for  injunction  against  infringement,  affi- 
davits used  on  a  prior  hearing  are  referred  to  and  used,  they 
should,  under  the  circumstances  of  this  case,  be  incorporated 
in  the  record  on  an  appeal.38  Such  an  appeal  does  not  affect 
the  jurisdiction  of  the  District  Court  to  proceed  with  the  cause 
in  every  respect,  not  involved  in  the  appeal.39  The  grant  or 
denial  of  a  supersedeas  upon  such  an  appeal  is  within  the  dis- 
cretion of  the  court  below.40  A  supersedeas  may  be  allowed 
upon  the  filing  of  a  bond  by  the  appellant,41  but  such  a  bond  is 
not  indispensable.42  Where  the  appeal  is  taken  in  open  court, 
there  need  be  no  summons  nor  severance.43  If  it  is  necessary  to 
bring  in  parties  not  duly  served  with  the  citation,  the  defect 
may  be  corrected  in  the  court  of  review.44  Where  the  contro- 
versy between  the  parties  had  been  substantially  settled  pend- 
ing an  appeal,  the  order  was  affirmed  without  passing  upon  the 
equity  of  the  bill.45 


Rapids   v.   Warren   Bros.   Co..   C.   C. 
A..    196   Fed.    S92. 

37  Xew  Albany  Waterworks  v. 
Louisville  Banking  Co..  C.  C.  A., 
122  Fed.  776.  See  Tunstall  v. 
Stearns  Coal  Co..  C.  C.  A..  192  Fed. 
808;  X.  J.  Patent  Co.  v.  Schaefer, 
178  Fed.  276:  Shubert  v.  Woodward. 
€.  C.  A.,  167  Fed.  47. 

38  Staples  &  Hanford  Co.  v.  Lord. 
C.  C.  A.,  148  Fed.   15, 

39  Cuyler  et  al.  v.  Atlantic  &  X. 
C.  R.  Co..  132  Fed.  568;  Foote  v. 
Parsons  Xon-Skid  Co..  C.  C.  A..  196 
Fed.  951. 

40  City  of  Shelbyville  v.  Clover, 
C.  C.  A.,  184  Fed.  234.  240. 

41  Cotting  v.  Kansas  City  Stock- 
Yards   Co.,  82   Fed.   850,   857.     See 


infra,    Chapter    on    Writs    of    Error 
and  Appeals. 

42  Pneumatic  Scale  Corporation  v. 
Automatic  Weighing  Mach.  Co.,  C. 
C.  A.,  200  Fed.  572.  There  the  com- 
plainant failed  to  apply  for  a  bond 
in  the  court  below,  and  it  was  held 
that  the  appellate  court  would  not 
require  one  to  be  filed  because  of 
matters  of  which  such  complainant 
had  knowledge  when  the  stay  was 
granted. 

43  Williams  v.  City  Bank  &  Trust 
Co..  C.  C.  A.,  186  Fed.  419. 

44  Ibid. 

45  Victor  Talking  Mach.  Co.  v. 
American  Graphophone  Co.,  C.  C. 
C,  192  Fed.  1023. 


CHAPTER  XIX. 


RECEIVKKS. 


§  301.  Definition  of  receiver.  A  receiver  is  an  officer  ap- 
pointed by  a  court  of  equity  to  assume  the  custody  of  property 
pending  litigation  concerning  the  same.  The  effect  of  the  ap- 
pointment of  a  receiver  is  to  put  the  property  in  his  custody  as 
an  officer  of  the  court,  for  the  benefit  of  the  party  ultimately 
proved  to  be  entitled,  but  not  to  change  the  title  or  even  the 
right  of  possession  to  the  property.1  In  England  the  term  is 
usually  applied  only  to  those  appointed  to  receive  the  rents  and 
profits  of  land  and  to  get  in  outstanding  property;  and  one 
selected  to  carry  on  or  superintend  a  trade  or  business  is  usual ly 
denominated  "a  manager,"  or  ua  receiver  and  manager." 
But  in  the  United  States  both  classes  of  officers  are  called  re- 
ceivers. The  Revised  Statutes  authorize  the  Comptroller  of  the 
Currency  to  appoint  in  certain  cases  a  receiver  of  a  national 
banking  association,  whose  powers  and  duties  are  in  many  re- 
spects analogous  to  those  of  a  receiver  appointed  by  a  court  of 
equity.3  But,  as  the  learning  upon  this  subject  does  not  concern 
the  practice  of  the  courts,  it  will  not  be  considered  here. 

§  302.  When  receivers  will  be  appointed.  A  receiver 
may  be  appointed  to  provide  for  the  safety  of  property  pending 
litigation  to  determine  the  title  to  the  same:  to  preserve  prop- 
erty in  danger  of  being  dissipated  or  destroyed  by  those  haying 
the  legal  title  to  its  possession;  to  preserve  the  property  of  in- 
fants during  their  minority,  when  they  have  no  guardian  and 
their  parents  are  dead  or  untir  to  be  trusted  with  it ;  to  preserve 
the  property  of  idiots  and  lunatics  when  it  is  impossible  to  ob- 

§  30l/l  Union    Bank    v.    Kansas  »See    V.   S.    R.   S.,    S*   5234-5237; 

CBank,   136  €1  S.  223.  236-,  34  L.  19    St.    at    L.    63;    1st    Supp,    U.    S. 

ed    341.  3461     See   High   on   RecfeiV-  R;  S.  216;  24  St.  a,   I,.,  ch.  28,  p.  8: 

ers,    (4th  ed.)    §  1.  |,,i(<'  v-  Abbott,  17  Fed.  506;  swpra, 

ZDaniell's   Ch.  Pr.    (2d   Am.  ed.)  g§  SI   and  94;   infra.  §  302. 
2006. 

937 


<»:},s 


RECEIVERS. 


[§   302 


tain  a  proper  person  as  committee;  and  when  the  appointment 
is  authorized  by  statute.1  A  receiver  may  be  appointed  to  pro- 
vide for  the  safety  of  property  pending  litigation  to  determine 
the  title  to  the  same,  whether  the  litigation  is  in  a  court  of 
equity,2  or  probate,3  or  of  bankruptcy,4  in  a  foreign  court,5  or 
sometimes,  though  very  rarely,  in  a  court  of  law.6  The  most 
usual  cases  where  a  receiver  is  appointed  are  suits  in  equity  to 
obtain  equitable  assets,  for  the  foreclosure  of  a  mortgage,  and 
for  the  dissolution  or  winding  up  of  the  affairs  of  a  partnership. 
It  was  the  English  rule  that  a  receiver  could  not  be  appointed 
at  the  suit  of  a  first  mortgagee,  since  he  had  it  in  his  power 
to  take  possession  himself.7  In  this  country,  however,  receivers 
are  frequently  appointed  in  such  a  case.8  Ordinarily,  a  receiver 
of  the  effects  of  a  partnership  will  not  be  appointed  unless  the 
bill  prays  a  dissolution  and  shows  a  proper  case  for  the  same.9 
But  where  suits  have  been  instituted  to  compel  partners  to  act 
according  to  the  provisions  of  instruments  into  which  they  have 
entered,  the  court  will  take  care  that  the  decree  shall  not  be 
defeated  by  anything  to  be  done  in  the  meantime,  and  may  ap- 
point a  receiver  to  protect  the  property.10    Receivers  may  be  ap- 


§  302.  l  Kerr  on  Receivers  (2d 
Am.  ed.) ,  3. 

2  Davis  v.  Duke  of  Marlborough, 
2  Swanst.  108;  Curling  v.  Marquis 
Townshend,  19  Ves.  628.  But  see 
Moore  v.  Bank  of  Br.  Columbia,  106 
Fed.  574. 

3  King  v.  King;  6  Ves.  172;  Mat- 
ter of  Colvin.  3  Md.  Ch.  Dec.  279; 
Robinson  v.  Taylor,  42  Fed.  803; 
Underground  El.  Rys.  Co.  v.  Owsley, 
169  Fed.  67]  ;  aff'd.  C.  C.  A.,  176 
Fed.  26.  where  it  was  held  that  the 
receivership  should  be  provisional 
until  an  application  to  the  Surro- 
gate's Court  for  the  appointment  of 
a  temporary  administrator  could  be 
made  and  determined,  and  should 
then  terminate,  unless  that  court 
refused  to  make  such  appointment. 

4  Sedgwick  v.  Place.  3  X.  B.  R. 
35;  Alabama  &  C.  R.  Co.  v.  Jones, 
5  X.  B.  R.  97:   Keenan  v.  Shannon, 


9  N.  B.  R.  441.  See  30  St,  at  L. 
544,  546,  §  2. 

5  Transatlantic  Co.  v.  Pietroni, 
Johns.  604. 

6Talbott  v.  Scott,  4  K.  &  J.,  96; 
Fingal  v.  Blake,  2  Molloy,  50; 
Whitney  v.  Buckman,  26  Cal.  447; 
Horton  v.  White,  84  X.  C.  297 ;  Jef- 
freys v.  Smith,  1  J.  &  W.  298;  Rob- 
inson v.  Taylor,  42  Fed.  803.  But 
see  Tornanses  v.  Melsing,  C.  C.  A., 
106  Fed.  775. 

7  Berney  v.  Sewell,  1  J.  &  W.  647. 

8  See,  for  example,  Stanton  v. 
Alabama  &  C.  R.  Co.,  2  Woods,  506 ; 
Allen  v.  D.  &  W.  R.  Co.,  3  Woods, 
316,  326. 

9  Goodman  v.  Whitcomb,  1  J.  & 
W.  589;  Oliver  v.  Hamilton,  2  Anst. 
453:  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1966,  ]967;  Kerr  on  Receivers  (2d 
Am.  ed.).  93. 

10  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1967;  Const,  v.  Harris,  T.  &  R.  496. 


§   302] 


APPOINTMENT    OF    RKf FIVERS. 


939 


pointed  to  preserve  property  in  danger  of  being  dissipated  or 

destroyed  by  those  having  the  local  title  to  its  possession,  at  the 
suit  of  beneficiaries,  legatees,  next  of  kin.  <>r  creditors,  whore  a 
trustee,11  executor,12  or  administrator13  is  insolvent  and  has 
not  given  bonds,  or  is  guilty  of  misconduct;  of  where  two 
trustees  or -executors  disagree  so  that  it  is  impossible  for  them 
to  act  together;14  at  the  suit  of  the  United  States  to  cancel  a 
land  patent.15  or  at  the  suit  of  remaindermen.16  where  the  holder 
of  the  particular  estate  or  party  in  possession,  as  the  case  may 
be,  is  guilty  of  voluntary  or  permissive  waste,  or  in  a  suit  by 
a  remainderman  when  he  improperly  refuses  to  renew  a  lease- 
hold.17 In  the  case  of  trustees,  the  court  will  thus  interfere 
whether  the  trust  is  express  or  implied.18  Upon  an  interlocu- 
tory application,  in  a  suit  to  enjoin  the  infringement  of  a  ] tal- 
ent by  an  insolvent  defendant,  a  Circuit  Court  appointed  a  re- 
ceiver of  the  profits  made  by  such  infringement.19  A  receiver 
may  be  appointed  over  the  property  of  an  infant,20  when  the 
latter  has  no  guardian,  or  his  guardian  is  insolvent  or  has  been 
guilty  of  misconduct,21  and  he  has  no  parents,  or  his  parents  are 
unfit  to  be  intrusted  with  the  case  of  his  estate.22  Receiver- 
may  be  appointed  over  the  property  of  idiots  and  lunatics,  when 


11  Hagenbeek  v.  Hagenbeck  Z.  A. 
Co.,  59  Fed.  14;  McC'osker  v.  Brady. 
1  Barb.  Ch.  (N.  Y.)  329;  Brodie 
v.  Barry,  3  Meriv.  695;  Janeway 
v.  Green,  16-  Abb.  Pr.  (N,  Y.)  215, 
note. 

12  Utterson  v.  Mair,  2  Yes.  Jr. 
95;  Scott  v.  Becher,  4  Price,  346. 
But  see  Gladdon  v.  Stoneman,  1 
Madd.  143,  n.;  Langley  v.  Hawk, 
5  Madd.  46;  Kerr  on  Receivers  (2d 
Am.  ed.)   20. 

13  Hervey  v.  Fitzpatrick,  Kay, 
421  ;   YYaue  v.  Ware,  42  Ga.  408. 

"Ball  v.  Tompkins.  41  Fed.  486. 

15  U.  S.  v.  Whitmire,  C.  C.  A.,  188 
Fed.  422. 

16  Yose  v.  Reed.  1  Woods,  647, 
650. 

"Bennett   v.    Collev.   2    M.    &    K. 


225;  s.  c,  5  Sim.  181,  192;  Lord 
Montford  v.  Lord  Cadogan,  17  Yea. 
485. 

is  Pritchard  v.  Fleetwood,  1 
Meriv.  54;  Daniell's  Ch.  Pr.  (5th 
Am.  ed.)    1724. 

19  Parkhurst  v.  Kinsman,  2 
Blatchf.  78. 

80 Hicks  v.  Hicks.  3  Atk.  277; 
Union  Tr.  Co.  v.  111.  M.  R.  Co..  117 
U.  S.  434,  29  L.  ed.  963;  Sage  v. 
M.  &  L.  R.  Co.,  L25  L.  s.  36],  31 
L.  ed.  694:  Kerr  on  Receivers  (2d 
Am.  ed.),  16-18. 

21  Pitcher  v.  Helliar,  Dick.  580; 
High  on  Receiveus,  S$  725-732. 

22  Butler  \.  Freeman,  Amb.  301  ; 
Kitl'm  v.  Kill'm.  cited  in  1  1'.  Wins. 
705;  Kerr  on  Receivers  (.2,1  Am. 
ed.),  16-18. 


940 


RECEIVERS. 


[§   302 


no  person  can  be  found  disposed  to  act  as  committee;23  or,  it 
seems,  when  the  committee  is  infirm,  or  the  management  of  the 
estate  is  very  onerous,  or  the  committee  lives  far  from  the 
estate.24  The  statutes  of  the  several  States  authorize  the  ap- 
pointment of  receivers  in  numerous  cases,  especially  in  provid- 
ing for  the  dissolution  of  corporations.  In  so  far  as  State  stat- 
utes authorize  the  appointment  of  receivers,  they  will  usually 
be  followed  by  the  Federal  courts,  provided  at  least  that  they 
no  not  deprive  a  party  of  a  trial  by  jury  to  which  he  would  have 
been  entitled  at  common  law ;  and  the  Federal  courts  will  also 
observe  the  statutory  conditions  required  for  such  appointments. 
but  not  the  State  practice.25  State  statutes  forbidding  the  ap- 
pointment of  receivers  or  the  taking  of  possession  by  a  mort- 
2'affee  in  certain  cases  will  not  be  followed  by  the  Federal 
courts.26  The  statutes  of  the  United  States  authorize  the  ap- 
pointment of  a  receiver  of  a  national  bank  by  the  Comptroller 
of  the  Currency  in  certain  specified  cases.27  Until  the  Comp- 
troller has  acted,  a  court  of  the  United  States  may  appoint  a 
receiver  of  the  assets  of  such  a  corporation.28  After  the  appoint- 
ment by  the  Comptroller  of  such  a  receiver,  it  is  doubtful  wheth- 
er a  court  of  the  United  States  would  appoint  another ;   and 


23  Ex  parte  Warren,  10  Yes.  022; 
Anon.,  1  Atk.  578:  Ex  parte  Rad- 
ctiffe,  J.  &  W.  631).;  Kerr  on  Re- 
ceivers  (2d  Am.  ed.),  113.  114. 

24  Kerr  on  Receivers  (2d  Am. 
ed.).  113,  114,  citing  Re  Birch, 
Shelf,  on  Lun.  140;  Re  Seaman, 
Shelf,  on  Lun.   140. 

25  Bates  v.  International  Co.  of 
Mexico.  84  Fed.  518;  Flash  v.  Wil- 
kerson,  22  Fed.  6S0 ;  Fechheimer  v. 
Baum.  37  Fed.  107;  Tomlinson  & 
W.  Mfg.  Co.  v.  Shatto.  34  Fed.  380; 
Davis  v.  Gray,  16  Wall.  203,  219, 
220,  21  L.  ed.  447,  452,  453:  supra, 
§  82.  In  Daneel  v.  Goodyear  Shoe 
Machinery  Co.,  U.  S.  C.  C,  S.  D. 
X.  V..  April  8th.  1905.  in  which  the 
author  was  counsel,  Judge  La  com  be 
appointed  a  receiver  of  the  prop- 
erty within  the  State  of  a  for- 
eign   corporation,    the   defendant   to 


a  suit  in  equity,  after  a  decree  for 
the  payment  of  money  by  it  and  the 
return  of  an  execution  unsatisfied. 
The  appointment  was  made  by  a 
petition  at  the  foot  of  the  decree, 
which  complied  with  the  provisions 
of  the  New  York  Code  of  Civil 
Procedure  and  also  with  the  require- 
ments of  Federal  equity  practice. 
Xo  opinion  was  rendered. 

26  American  Nat.  Bank  v.  Xorth- 
western  M.  I.  Co..  89  Fed.  610; 
siifira,  §  S3. 

27  V.  S.  R.  S..  §§  5141.  5191.  5195, 
5201,  5205.  5234.  5235:  5236;  Laws 
of  1870.  ch.  150  (19  St.  at  L., 
p.  03);  1st  Supp.  U.  S.  R.  S., 
p.  216;  fin  pro.  §  5. 

28  Wright  v.  Merchants'  Xat. 
Bank,  1  Flippin,  568;  Irons  v.  Mfrs. 
Xat.  Bank,  6  Biss.  30L 


$  302] 


APPOINTMENT    OF    RECEIVERS. 


941 


after  the  appointment  of  a  receiver  by  a  court  of  competent  ju- 
risdiction, it  is  doubtful  whetlier  the  Comptroller  of  the  Cur- 
rency could  thus  interfere.29  A  court  of  equity  may  appoint  a 
receiver  of  the  assets  of  a  national  hank  at  the  suit  of  unse 
cured  creditors,  without  a  judgment  at  law,  although  the  Comp- 
troller of  the  Currency  has  refused   to  make  such  an  appoint- 


ment 


30 


Independently  of  statutory  authority,  a  court  of  equity  will 
ordinarily  appoint  a  receiver  of  the  property  of  a  corporation 
in  onlv  eight  classes  of  cases:  First! v.  at  the  suit  of  mort- 
gagees,81  or  other  holders  of  liens  upon  it,32  or  those  whose 
claims  against  the  owner  are  purely  equitable  and  cannot  other- 
wise be  enforced  or  protected.33  Secondly,  at  the  suit  of  judg 
ment  creditors  seeking  equitable  assets  after  executions  have 
been  returned  unsatisfied,  and  the  return  shows  that  there  is  no 
corporate  property  upon  which  a  levy  can  be  made.34     Thirdly, 


29  Harvey  v.  Lord.  10  Fed.  236. 

30  Ki„o  v.  Pomeroy,  C.  C.  A.,  121 
Fed.  287.  289. 

31  Milwaukee  &  M.  R.  Co.  v. 
Soutter.  2  Wall.  510.  17  L.  ed.  900; 
Mercantile  Tr.  Co.  v.  Missouri.  K. 
&  T.  Ry.  Co.,  1  L.R.A.  397,  3G  Fed. 
221  ;  Farmers'  Loan  &  Trust  Co.  v. 
Meridian  Waterworks  Co.,  139  Fed. 
661  ;  Strain  v.  Palmer.  C.  C.  A.,  159 
Fed.  G2S.  But  see  Trust  &  D.  Co. 
of  Onondaga  v.  Spartanburg  Water 
Works.  91  Fed.  324.  For  such  cases 
where  a  receivership  was  denied,  sec 
Farmers'  Loan  &  Tr.  Co.  v.  Central 
Park.  N.  &  E.  R.  R.  Co.,  163  Fed. 
503 ;  Burroughs  v.  Toxaway  Co.,  C. 
('.  A.,  185  Fed.  435.  A  court  of 
equity  will  often  appoint  a  receiver 
of  a  railroad  in  a  suit  for  the  fore- 
closure of  a  mortgage  containing  a 
clause  pledging  its  tolls  and  income, 
when  it  would  not  do  so  if  no  such 
clause  were  included  in  the  mort- 
aa«e.  Tyseri  v.  Wabash  R.  Co.,  8 
Biss.  247.  "The  rights  of  holders 
of  negotiable  bonds  issued  by  a  rail- 
road   company    and    secured    by    a 


mortgage  on  its  property  are  not  to 
be  measured  by  the  same  rules  as 
are  applied  to  an  ordinary  mort- 
gage on  a  farm  or  house  and  lot, 
to  secure  one  or  two  notes  held  by 
one  mortgagee."  Allen  v.  I).  &  W. 
R.  Co.,  3  Woods,  31 G,  326.  per 
Woods,  J. 

32  Park  v.  X.  Y..  L.  E.  &  W.  R. 
Co..  70  Fed.  641;  Hird  v.  People's 
Gas  &  Eli   Light  Co..    15S    Fed.  903. 

33  D.  A.  Tompkins  Co.  v.  Catawba 
Mills.  82  Fed.  780.  7S3:  Farmers' 
L.  &  Tr.  Co.  v.  Winona  &  Str.  Ry. 
Co..  59  Fed.  957;  Park  v.  X.  1.  V. 
&  S.  W.  R.  Co..  7U  Fed.  641  ;  Darnel 
v.  Goodyear  Shoe  Machinery  Co..  S. 
1).  \.  Y..  supra,  note  25.  Haight 
&  Freese  Co.  v.  Weiss.  C.  C.  A..  156 
Fed.  328;  certiorari  denied  2<»7  I'. 
S.   594.   52    L.   ed.   356. 

34  Covington  1).  Co.  v.  Shepherd, 
21  How.  112.  16  L.  ed.  3S;  Shain- 
wald  v.  Lewis,  I)  Fed.  166,  775: 
Buckeye  E.  Co.  v.  Donau  Br.  Co.. 
47  Fed.  li.  See  I'.rown  v.  Lake  B. 
I.  Co..  134  I  .  S.  530,  534.  33  L.  ed. 
1021.    1024:    Sage    v.    Memphis   A    L. 


942 


RECEIVERS. 


[§   302 


at  the  suit  of  a  creditor  with  or  without  a  judgment  when  a  re- 
ceiver has  been  appointed  in  another  jurisdiction  ; 35  and  in  some 
cases,  such  as  ancillary  appointment  has  been  made  upon  the 
application  of  the  foreign  receiver.36  Thirdly,  at  the  suit  of 
persons  interested  in  the  property,  whether  as  stockholders37  or 
creditors,  even,  it  has  been  held,  creditors  without  judgments  or 
liens,38  where  there  is  a  breach  of  duty  by  the  directors,  and 
an  actual  or  threatened  damage39  of  a  serious  nature,  although 
there  is  no  insolvency.40     Fourthly,  where  a  corporation  has 


R.  R.  Co.,  125  U.  S.  361,  31  L.  ed. 

094. 

35  Sands   v.   E.   S.   Greeley   &   Co., 

C.  C.    A.,    88    Fed.    130,    132,    133; 
Bowker  v.   Haight  &  Freese  Co.,   S. 

D.  N.    Y.,    May    10,    1905,    per    La 
Combe,  J.,  infra,  %  242. 

36  In  the  Third  Circuit.  Re 
Haight  &  Freese  Co.,  May,  1005  per 
McPherson,  J. 

37  Evans  v.  Coventry,  5  De  G.,  M. 
&  G.  911;  Powers  v.  Blue  Grass  B. 
&  L.  Ass'n,  86  Fed.  705.  But  see 
Edwards  v.  Bay  State  Gas  Co.,  91 
Fed.  942;  Hunt  v.  American  Gro- 
cery Co.,  80  Fed.  70;  Becker  v. 
Hoke,  80  Fed.  973;  Texas  C.  C.  & 
Mfg.  Ass'n  v.  Storrow,  92  Fed.  5; 
Ranger  v.  Champion  C.  P.  Co.,  52 
Fed.  609;  Aiken  v.  Colorado  River 
Irr.  Co.,  72  Fed.  591;  Columbia 
Nat.  Sand  Dr.  Co.  v.  Washed  Bar 
Sand  Dr.  Co.,  136  Fed.  710:  Glover 
v.  Manila  Gold  Min.  &  Mill  Co.,  19 
S.  D.  559,  104  X.  W.  261;  Wayne 
Pike  Co.  v.  Hammons.  129  Ind.  308; 
Supreme  Sitting,  etc.,  Order  v. 
Raker,  134  Ind.  293,  20  L.R.A.  210. 
But  see  Worth  Mfg.  Co.  v.  Bingham, 
C.  C.  A.,  116  Fed.  785:  Parks  v. 
I*.  S.  Bankers'  Corporation,  140 
Fed:    160. 

38  Sage  v.  Memphis  &  L.  R.  R. 
Co..  125  l".  S.  361.  31  L.  ed.  694; 
Cum  sol  idated  T.  L.  Co.  v.  Kansas  C. 
V.   Co...  43  Fed.  204;   Doe  v.  North- 


western C.  &  T.  Co.,  64  Fed.  928; 
Merchants'  Nat.  Bank  v.  Chattanoo- 
ga C.  Co.,  53  Fed.  314;  King  v. 
Pomeroy,  C.  C.  A.,  121  Fed.  287; 
Kentucky,  etc.,  Ass'n  v.  Galbreaith, 
117  Ky.  66.  77  S.  W.  371.  Contra, 
Leary  v.  Columbia  R.  &  S.  S.  Nav. 
Co.,  82  Fed.  775;  Texas  C.  C.  & 
Mfg.  Ass'n  v.  Storrow,  C.  C.  A.,  92 
Fed.  5 ;  Syers  v.  Brighton  Br.  Co., 
11  L.  T.  (N.  S.)  560;  Mills  v. 
Northern  Ry.  of  B.  A.  Co.,  23  L.  T. 
(X.  S.i  719:  Slover  v.  Coal  Creek 
Coal  Co.,  113  Tenn.  421.  82  S.  \Y. 
1131,  68  L.R.A.  852;  McKee  v.  City 
Garbage  Co..  140  Mich.  497,  103  N. 
W.  906.  See  Pennsylvania  Co.  for 
Insurance,  etc.  v.  Jacksonville,  T.  & 
K,  W.  Ry.  Co.,  C.  C.  A.,  55  Fed. 
131.  But  see  Nesbit  v.  North 
Georgia  El.  Co..  156  Fed.  979.  But 
see  Maxwell  v.  McDaniels,  C.  C.  A., 
184  Fed.  311 ;  Burton  v.  R.  G.  Peters 
Salt  &  Lumber  Co..  190  Fed.  262. 
That  lienholders  have  a  right  to  a 
receiver  in  such  a  case  is  held  in 
Farmers'  L.  &  Tr.  Co.  v.  Winona*& 
Str.  Ry.  Co..  59  Fed.  957.  See  Her- 
rick  v.  Grand  Trunk  Ry.  Co.,  7  Up- 
per Can.  240. 

39  Quoted  with  approval  by  Well- 
born. J.,  in  Aiken  v.  Colorado  River 
Irr.  Co..  72  Fed.  591,  593.  But  see 
Carson  v.  Allegany  Window  Glass 
Co.,  189  Fed.   791. 

40  Columbia  Nat.  Sand  Dr.  Co.  v. 


§   302] 


APPOINTMENT    OF    RECEIVERS. 


943 


been  dissolved  and  has  no  officer  to  attend  to  its  affairs.41  Fifth- 
ly, where  for  a  long  time  the  corporation  has  ceased  to  trans- 
act business  and  its  officers  have  ceased  to  act.42  Sixthly,  where 
the  governing  body  is  so  divided  and  engaged  in  such  mutual 
contentions  that  its  members  cannot  act  together;48     Seventh! v, 

«     - 

at  the  suit  of  unsecured  creditors,  where  the  corporation  makes 
no  defense  and  waives  its  right  to  require  the  complainants  to 
reduce  their  claims  to  judgment,  upon  proof  that  the  corpora- 
tion is  insolvent,  that  unless  the  court  interferes  its  business 
will  be  interrupted  by  the  levy  of  judgments  and  executions, 
and  that  the  continuance  of  such  business  is  necessarv  for  the 
convenience  of  the  public,  or  possibly  when  such  interruption 
will  greatly  depreciate  the  value  of  its  assets.44     And  eighthly, 


Washed  Bar  Sand  Dr.  Co.,  136  Fed. 
7t0.  But  see  Maxwell  v.  McDan- 
iels,  C.  C.  A.,  184  Fed.  311;  Carson 
v.  Allegany  Window  Glass  Co.,  189 
Fed.  791  ;  Burton  v.  R.  G.  Peters 
Salt  &  Lumber  Co.,  190  Fed.  262; 
Smith  v.  Chase  &  Baker  Piano  Mfg. 
Co.,  197  Fed.  466.  In  case  of  a  life 
insurance  company,  the  court  will 
rarely  appoint  a  receiver  when  there 
is  no  apprehension  as  to  its  solv- 
ency. Watson  v.  Xat.  Life  &  Tr. 
Co..  C.  C.  A..   189  Fed.  872. 

41  The  Late  Corporation  of  the 
Church  of  J.  C.  of  L.  D.  S.  v.  U. 
S..  136  U.  S.  1,  34  L.  ed.  478;  Law- 
rence v.  Greenwich  F.  Ins.  Co.,  1 
Paige  ( N.  Y. ),  587.  See  also  Ham- 
ilton v.  Accessory  T.  Co.,  26  Barb, 
(X.  Y.)  46;  Murray  v.  Yauderbilt, 
39  Barb.   (X.  Y.)    140. 

42  Quoted  with  approval  by  Well- 
born, J.,  in  Aiken  v.  Colorado  River 
Irr.  Co.,  72  Fed.  591,  593;  Warren 
v.  Fake, ^49  How.  Pr.    (X.  Y.)    430. 

«  Featherstone  v.  Cooke,  L.  R.  16 
Eq.  298;  Trade  Auxiliary  Co.  v. 
Yickers,  L.  R.  16  Eq.  303;  D.  A. 
Tompkins  Co.  v.  Catawba  Mills,  82 
Fed.  780.  For  the  appointment  of 
a  receiver  because  of  a  controversy 
between    bondholders,    see    Benedict 


v.  St.  Joseph  &  W.  R.  Co.,  19  Fed. 
173.  For  an  extraordinary  case, 
where  a  receiver  was  appointed  lie- 
cause  of  a  dispute  with  one  stock- 
holder, see  Arents  v.  Blackwell's  1). 
T.  Co.,  107   Fed.  33S. 

44  Ro  Metropolitan  Railway  Re- 
ceivership, 208  U.  S.  90,  52  L.  ed. 
403.  See  Hollins  v.  Brierfield  C.  & 
I.  Co.,  150  U.  S.  371,  37  L.  ed.  1113: 
Sage  v.  Memphis  St.  R.  Co.,  125  U. 
S.  361,  31  L.  ed.  694;  Consolidated 
T.  Co.  v.  Kansas  C.  T.  Co.,  43  Fed. 
204;  Doe  v.  Xorthwestern  C.  &  T. 
Co.,  64  Fed.  928;  Merchants'  Xat. 
Bank  v.  Chattanooga  C.  Co..  53  Fed. 
314;  Park  v.  X.  Y.,  L.  E.  &  W.  R. 
Co.,  70  Fed.  641;  Enos  v.  X.  Y.  & 
O.  R.  Co.,  103  Fed.  47.  But  see 
Leary  v.  Columbia  &  P.  S.  Xav.  Co., 
82  Fed.  775;  Texas  C.  C.  &  Mfg. 
Co.  v.  Storrow.  C.  C.  A.,  92  Fed.  5. 
See  High  on  Receivers,  (4th  ed.  i 
SS  JS7-312e.  "Apart  from  statutes, 
moreover,  the  law  of  receiverships 
has  gone  through  a  curious  course 
of  development  with  respect  to  cor- 
porations. The  rule  has  been  uni- 
formly stated  in  the  books  and  is 
still  insisted  upon  that,  in  the  ab- 
sence of  statutory  authority,  a  court 
of  equity  has  no  power  to  appoint 


944 


i;kckivi:i;s. 


[§   302 


in  a  few  cases  receivers  have  been  appointed  at  the  application 
of  the  corporations  themselves,  made  before  default  in  the 
payment  of  mortgage  interest,  where  it  was  for  the  interest  of 
the  public  that  the  corporate  business;  the  operation  of  a  rail- 
road, should  be  continued  without  interruption,  it  was  hope- 
lesslv  insolvent,  and  there  was  dancer  of  attempts  by  creditors- 
to  gain  preference  by  attachments  or  otherwise  in  such  a 
manner  as  would  have  stopped  the  operation  of  the  railroad.45' 
It  has  been  held  that,  in  a  suit  against  a  corporation,  a  consent 
to  the  appointment  of  a  receiver,  signed  by  the  president,  will 
not  be  recognized  where  it  appears  from  the  pleadings  that  he 
is  an  interested  party  adverse  to  the  company,  and  no  author- 


a  receiver  even  of  an  insolvent  cor- 
poration.     It    is    said    that    such    a 
court  lias  no  inherent  power  to  wind 
up  a  corporation  and  that  it  cannot 
accomplish      by      indirection      that 
which    it   cannot   do   directly.      And 
it  is  perfectly  true  that  the  adminis- 
tration of  the  affairs  of  a  corpora- 
tion by  a  receiver  and  the  distribu- 
tion of  its  assets  while  not  destroy- 
ing its  corporate  existence  do  leave 
it    a    mere    shell.      Nevertheless    ex- 
ceptions    to     the     rule     have     been 
evolved  which  are,  in  some  aspects, 
as  broad  as  the  rule  itself.     One  of 
these    exceptions    is    in    the    case   of 
creditors'    bills.      Courts    of    equity 
long    ago    lent    their    assistance    to 
common   law   courts   to  enable   par- 
ticular judgment  creditors  to  reach, 
through    receivers,    property    beyond 
the  reach  of  execution.     These  suits 
soon    broadened    in    scope    and    were 
treated  as  equitable  levies  in  favor 
of  all  judgment  creditors  entitled  to 
seize     the     defendant's     property — a 
substitute  for  separate  proceedings. 
In  these  suits  no  distinctions   were 
drawn  between  corporations  and  in- 
dividuals    and     out     of     them     the 
practice   has  grown   up   and   become 
established    of   permitting   creditors 


having  judgments  to  apply  to  courts 
of  equity  to  take  possession  of  the 
assets  of  corporations  and  under- 
take through  receivers  their  general 
administration.  And  now  that 
which  was  formerly  regarded  as  the 
essential  thing — the  judgment — is 
unnecessary  unless  the  corporations 
object.  Thus  is  illustrated  anew 
the  vainness  of  saying  what  courts 
of  equity  cannot  do.  The  practice 
of  making  such  appointments  has 
become  particularly  well  established 
in  the  case  of  quasi  public  corpora- 
tions where  the  interests  of  the 
public  require  continuous  and  con- 
tinued operation  and  where,  gener- 
ally, the  bankruptcy  act  is  not 
available."'  Pennsylvania  Steel  Co. 
v.  New  York  City  Ry.  Co.,  C.  C.  A... 
1!)8    Fed.    721. 

«  Wabash,  St.  L.  &.  P.  Ry.  Co.  v.- 
Central  Tr.  Co..  22  Fed.  138;  s.  c, 
22  Fed.  272;  s.  c.  22  Fed.  513.  515'; 
s.  c.  23  Fed.  513.  29  Fed.  618; 
Brassey  v.  N.  Y.  &  X.  E.  R.  Co., 
19  Fed.  003.  Cf.  Quincy,  Mo.  & 
Pac.  Ry.  Co.  v.  Humphreys.  14.1  l\ 
S.  82.  95.  36  L.  ed.  032.  030.  Con- 
tra, Atkins  v.  Wabash.  St.  L.  &  P. 
Ry.  Co.,  29  Fed.  161:  Hush  v.  Mc- 
Rae,  Chase  466. 


§   302] 


APPOINTMENT    OF    RECEIVERS. 


:»i: 


ity  from  the  directors  to  give  the  consent  is  shown.46  It  lias 
been  said:  that  "a  managing  receivership  is  never  undertaken, 
except  with  the  view  to  winding  up  the  affairs  of  the  business 

and  the  sale  of  its  property;  the  business  being  taken  over  and 
continued,  in  order  that  the  whole  may  be  disposed  of  in  the 
end  as  a  going  concern."47  It  has  been  held,  that  a  receiver 
should  not  be  appointed  merely  for  the  purpose  of  bringing  a 
suit.48  It  has  been  held  that  a  receiver  of  the  assets  of  a  build- 
ing and  loan  association  may  be  appointed,  when  they  are  in- 
sufficient to  carry  to  completion  the  purposes  of  its  creation  : 
although  it  has  enough  to  pay  all  debts  that  have  matured.49 
The  court  will  appoint  a  receiver  of  the  assets  of  a  foreign  cor- 
poration, when  the  latter  has  submitted  to  the  jurisdiction.50 
A  court  will  not  usually  appoint  a  receiver  of  a  foreign  cor- 
poration, which  does  not  submit  to  the  jurisdiction,  in  a  suit, 
founded  upon  the  mismanagement  of  its  officers  or  directors, 
who  reside  elsewhere.51  A  court  has  no  jurisdiction  to  appoint 
a  receiver  of  the  property  of  a  corporation  or  other  person  and 
a  party  to  the  suit.52  It  is  doubtful  whether  the  receiver  of  a 
corporation  can  be  appointed  by  a  Federal  court  at  a  suit  of  a 
shareholder  whose  shares  are  not  worth  more  than  $2,000:6' 
The  right  to  apply  for  a  receivership  of  a  corporation  may  be 
lost  by  larhes.54  Usually  a  receiver  will  not  be  appointed  at 
the  suit  of  subsequent  lienors  over  property  of  which  a  niort- 


46  Xesbit  v.  North  Georgia  El. 
Co.,    ]o(i   Fed.    970. 

47  Gutterson  &  Gould  v.  Lebanon 
Iron  &  Steel  Co..  151  Fed.  72.  The 
selection  of  the  plaintiff  by  an  of- 
ficer of  the  corporation  was  held  to 
be  insufficient  to  establish  collusion. 
Burton  v.  R.  G.  Peters  Salt  &  l.um 
her  Co..   mo  Fed.  26& 

48  Zuhr-r  v.  Micmae  Gold  Min.Co.. 
ISO  Fed.  025.  misappropriation  of 
corporate  assets;  Street  Grading 
DistJ  No.  HO  of  Little  RoCk,  Ark.  v. 
Ptagadorn.  C.  C.  A..  188  Fed.  -151, 
to  collect  unpaid  assessments  upon 
real  estate  pledged  for  the  payment 
of  loans  used  in  public  improve- 
ments. 

Fed.  Prac.  Vol.  I.— 60. 


49Cunby  v.  Armstrong,  C.  C.  A.. 
133  Fed.  417. 

50  Lewis  v.  American  Naval 
Stores  Co..  11!)  Fed.  301;  HaifeW  & 
Freese  Co.  v.  Weiss.  C.  C.  A..  156 
Fed.  32S. 

51  Republican  M.  Silver  Mine's  v. 
Hi  own.  ('.  C.  A..  24  L.K.A.  770.  58 
Fed.  044:  Leafy  v.  Columbia  R.  & 
P.  S.  Xav.  Co..  82    Fed.  775. 

52  I  |0l,k   v.    I'.osworth.  64   Fe.l.  443. 

53  Robinson  v.  West  Va.  L.  Oct, 
90      Fed.      770.        Contra.     Towle     v. 

American  li.  L.  &  Inv.  Soc.  60  Fad. 
131.     Supra,  &§  237.  288. 

54  Romare  v.  Broken  Arrow  C.  &. 
Mim  Co..    1  14   Fed.    104. 


946 


GECE1VERS. 


[§    302 


gagee  is  in  possession;  but  an  injunction  may  be  issued  to  pre- 
vent the  mortgagor  from  applying  the  rents  and  profits  to  any 
other  purpose  than  the  satisfaction  of  the  mortgage.55  It  ha« 
been  held  that  an  assignment  made  by  a  corporation  for  the 
benefit  of  creditors  after  the  filing  of  a  bill  for  the  appoint- 
ment of  a  receiver  will  not  deprive  the  court  of  jurisdiction  to 
appoint  a  receiver.56  When  a  railroad  is  in  the  hands  of  re- 
ceivers pending  a  foreclosure  suit,  the  court  may  extend  the 
receivership  over  a  portion  of  the  road  for  the  benefit  of  an 
intervener  claiming  a  prior  lien  thereupon.57  AY  here  a  re- 
ceiver has  been  appointed  at  the  suit  of  a  judgment  or  other 
creditor,  his  suit  may  be  consolidated  with  a  subsequent  fore- 
closure suit,  and  the  receivership  extended  for  the  benefit  of 
the  mortgagee.58  Where  receivers  of  a  railroad  covered  by  a 
lease  had  been  appointed  in  a  suit,  to  which  the  lessee  was  a 
defendant  and  admitted  its  insolvency,  it  was  held  proper  to 
extend  the  receivership  for  the  benefit  of  the  lessor  upon  the 
hitter's  petition  alleging  that  it  also  was  insolvent.59  Where  a 
receiver  was  appointed  at  the  suit  of  a  creditor,  with  the  requi- 
site difference  of  citizenship,  the  mortgagee  has  been  allowed 
to  intervene,  file  a  cross-bill  to  foreclose  the  mortgage  and  take 
the  benefit  of  the  receivership,  although  the  mortgagor  and 
mortgagee  were  citizens  of  the  same  State.60  Where  a  receiver 
had  been  appointed  over  the  property  of  a  corporation  which 
controlled  a  railroad  company  through  the  ownership  of  a 
majority  of  its  stock,  it  was  held  that  he  should  surrender  pos- 


55  U.  S.  v.  Marich,  44  Fed.  10. 

56  Belmont  Nail  Co.  v.  Columbia 
I.  &  S.  Co..  46  Fed.  8. 

57  Mercantile  T.'  Co.  v.  Mo..  K.  & 
T.  Ry.  Co.,  41   Fed.  8.  9. 

58  Lloyd  v.  Chesapeake,  C.  &  S. 
W.  R.  Co..  65  Fed.  351. 

59  Re  Metropolitan  Railway  Re- 
ceivership. 208  U.  Si  90.  52  L.  ed. 
403.  The  fact  that  there  may  be  a 
conflict  of  interests  as  to  the  dis- 
tribution or  application  of  the  earn- 
ings of  the  receivership,  was  held 
not  to  be  a  reason  for  the  appoint- 
ment of  separate  receivers  to  oper- 
ate  the   property   of  several    lessors 


of  the  same  system  of  street  rail- 
roads, s.  c,  as  Pennsylvania  Steel 
Co.  v.  N.  Y.  City  Ry.  Co..  100  Fed. 
221  ;   inf.-a,  §§   306,  308,  320. 

60  Park  v.  X.  Y..  L.  E.  &  W.  R. 
Co.,  64  Fed.  19ft;  S.  c,  70  Fed.  641. 
In  another  case  it  was  held,  that 
since  the  receiver  already  appointed 
acted  for  all  parties  in  interest, 
there  was  no  reason  for  granting  a 
subsequent  motion  by  the  trustees 
for  the  extension  of  the  receiver- 
ship or  the  appointment  of  a  new- 
receiver.  Bird  v.  People's  Gas  &  El. 
Light  Co.,  158  Fed.  903. 


§   302] 


APPOINTMENT    OF    RECEIVERS. 


947 


session  to  a  receiver  of  the  latter  corporation  subsequently  ap- 
pointed by  a   State  court.61     The   appointment  of  a  receiver 

will  not  be  set  aside  for  collusion,  because  the  complainant 
brought  the  suit  and  made  the  application  at  the  request  of 
the  corporation.62  Where  the  defendant  corporation  appeared 
and  submitted  to  the  jurisdiction,  an  intervening  stockholder 
or  creditor  cannot  object  to  the  same.63  It  has  been  held  thai 
where  a  State  is  divided  into  several  districts  and  the  statutes 
permit  process  in  one  to  be  served  in  another,  that  a  receiver 
appointed  in  one  district  has  power  over  all  property  in  the 
State,64  Until  an  ancillary  appointment  has  been  made  a  re- 
ceiver has  no  power  over  property  in  another  State  except  by 
the  comity  of  the  court  there  held.65  It  has  been  held  that  the 
title  of  a  receiver  dates  from  the  time  of  his  appointment  ami 
the  filing  of  the  same  in  the  clerk's  office,  cutting  off  all  rights 
or  liens  that  accrued  between  then  and  the  time  when  the  or- 
der was  transcribed  by  the  clerk  and  the  bond  filed;66  but  that 
it  does  not  relate  back  to  the  time  when  the  order  was  signed.67 
The  rules  regulating  applications  for  the  appointment  of  re- 
ceivers over  property  in  the  custody  of  another  court  have  been 
previously  explained.68  It  has  been  held  that  a  receiver  will  not 
be  appointed  to  assist  a  trust  formed  to  maintain  a  monopoly,  or 


61  Central  R.  &  B.  Co.  v.  Farmers' 
L.  &  Tr,  Co..  50  Fed.  .1.57. 

62  Dickerman  v.  Northern  Tr.  Co., 
176  I'.  S.  181.  44  L.  ed.  4-2.1:  Blair 
v.  Chicago,  201  l".  S.  400,  50  L.  ed. 
S01;  Re  Metropolitan  Railway  Re- 
ceivership. 208  C.  S.  !»0.  52  L.  ed. 
403. 

63  k>  Metropolitan  Receivership. 
208  U.  S.  00.  52  L.  ed.  403:  Lewis 
v.  American  Naval  Stores  Co..  110 
Fed.  301.     Supra,  §§  258-2'60. 

64  Horn  v.  Pere  Marquette  H.  Co., 
151    Fed.  020.  031. 

65  Central  Tr.  Co.  v.  Texas  &  St. 
L.  Ry.  Co..  22  Fed.  135;  Atkins  v. 
Wabash.  St.  L.  &  P.  Ry.  Co.,  20 
Fed.  101:  Mercantile  Tr.  Co.  v. 
Kanawha  &  O.  Ry.  Co.,  30  Fed.  337; 


Farmers'  L.  &  Tr.  Co.  v.  No.  l'ac 
R.  Co..  60  Fed.  871  :  Kirker  v. 
Owings,  C.  C.  A..  08  Fed.  400: 
Greene  v.  Star  C.  &  P.  Car  Co..  00 
Fed.  050:  Morrill  v.  Am.  Reserve 
Bond.  Co..  151  Fed.  305.  Supra, 
§  03.  infra,  §§  304,  306.  For  cases 
where  foreign  receivers  have  been 
allowed  to  collect  domestic  s.s&ct.s 
without  ancillary  appointments,  see 
Farley  v.  Tall.ee.  r^t  Fed.  *02 :  su- 
pra, §  02.  infra,  §  3  11. 

66 Horn  v.  Pere  Marquette  R.  <',,. 
151    Fed.  020.  627. 

67  \\iho\      v.      National     Shoe     A 
Leather  Bank,  <i7  App.  Div.  4iiii. 

68  Supra,     $     55.       See     Morrill     v. 
Am.  Reserve  Bond  Co.,  15  1   Fed.  305. 


!MS 


RECEIVERS. 


[§   303 


otherwise  to  aid  in  the  prosecution  of  an  enterprise  against  pub- 
lic policy.69 

§  303.  Rules  regulating  the  appointment  of  receivers. 

It  has  been  said  that,  in  order  to  obtain  the  appointment  of  a 
receiver,  the  moving  party  must  show,  first,  either  that  he  has 
a  clear  right  to  the  property  itself,  or  that  he  has  some  lien  upon 
it,  or  that  the  property  constitutes  a  special  fund  to  which  he 
has  a  right  to  resort  for  the  satisfaction  of  his  claim ;  and,  sec- 
ondly, that  the  possession  of  the  property  by  the  defendant  was 
obtained  by  fraud ;  or  that  the  property  itself,  or  the  income 
arising  from  it,  is  in  danger  of  loss  from  the  neglect,  waste, 
misconduct,  or  insolvency  of  the  defendant.1  The  appointment 
of  a  receiver  is  always  in  the  discretion2  of  the  court,  which, 
however,  must  be  exercised  with  great  circumspection,3  and  is 
subject  to  review  by  an  appellate  court.4  It  has  been  said,  that 
the  appointment  can  be  made  only  in  accordance  with  the  fol- 
lowing rules:  "1st.  That  the  power  of  appointment  is  a  deli- 
cate one,  and  to  be  exercised  with  great  circumspection.  2nd 
That  is  must  appear  the  claimant  has  a  title  to  the  property, 
and  the  court  must  be  satisfied  by  affidavit  that  a  receiver  is 
necessary  to  preserve  the  property.  3rd.  That  there  is  no  case 
in  which  the  court  appoints  a  receiver  merely  because  the  meas- 
sure  can  do  no  harm.  4th.  That  'fraud  or  imminent  danger, 
if  the  intermediate  possession  should  not  be  taken  by  the  court, 
must  be  clearly  proved ;'  and  5th.  That  unless  the  necessity  be 
of  the  most  stringent  character,  the  court  will  not  appoint  until 
the  defendant  is  first  heard  in  response  to  the  application.1"  5 


69  Am.  B.  &  Mfg.  Co.  v.  Klotz,  44 
Fed.  721. 

§  303.  !  Chancellor  Buckner  in 
Mays  v.  Rose,  Freeman's  Cli. 
(Miss.)  R.  703.  718.  See  also 
Beecher  v.  Bininger.  7  Blatchf.  170; 
Tysen  v.  Wabash  R.  Co..  8  Biss. 
247.  "Mere  insolvency  arising  from 
no  proved  fault  in  the  management 
of  a  private  corporation  is  not  a 
sufficient  ground.  There  should  be 
some  evidence  of  waste  or  misman- 
agement or  carelessness  or  fraud  or 
extravagance,  wantonness  or  collu- 
sion ;  some  ground  to  apprehend  that 


the  property  will  suffer  deteriora- 
tion or  serious  injury:  something  to 
show  that  there  is  danger  of  prob- 
able loss,  or  that  some  rights  may 
be  substantially  impaired."  Braw- 
ley,  J.,  in  Tr.  &  D.  Co.  v.  Spartan- 
burg Water  Works  Co..  91  Fed.  324, 
325. 

2  Owen  v.  Homan,  4  H.  L.  C.  997, 
1032. 

3  Milwaukee    &    Minn.    R.    Co.    v. 
Sputter,  2  Wall.  521,  17  L.  ed.  903. 

*  Tysen  v.  Wabash  R.  Co.,  8  Biss. 
247. 

5  Le   Grand,   C.   J.,    in   Blondheim 


§   304] 


ANCILLARY     UK C  K I  VERS. 


949 


§  304.  Ancillary  receivers.  An  ancillary,  receiver  is  a  re- 
ceiver appointed  in  aid  of  a  receiver  appointed  by  another 
court.1  When  a  receiver  has  been  appointed  by  one  Federal 
District  Court,  the  others  through  indicia]  comity  will  usually 
appoint  the  same  person  an  ancillary  receiver  of  so  much  of 
the    same    estate    as    is    within    their    jurisdiction.2    sometimes 


v.  Moore,  11  Md.  365.  374.  See 
Kelly  v.  Bettecher,  89  Fed.  L25; 
■infra,  §  31.1. 

§  304.  1  Jennings  v.  Phil.  &  R. 
R.  Co.,  23  Fed.  509:  Williams  v. 
ffintermeister,  26  Fed.  88!).  As  to 
bankruptcy,  see  §  612.  infra. 

2. Jennings  v.  Phil.  &  R.  R.  Co., 
23  Fed.  .569;  Central  Tr.  Co.  v. 
Wabash.  St.  L.  &  P.  Ry.  Co..  29 
Fed.  618;  Pifrsons  v.  Charter  Oak 
L.  Ins.  Co.,  31  Fed.  305;  Shinney 
v.  X.  A.  S.,  L.  &  Bld'g  Ass-'n,  97 
Fed.  9;  Dillon  v.  Oregon,  S.  L.  & 
U.  X.  Ry.  Co.,  66  Fed.  622;  Lewis 
v.  Am.  Xaval  Stores  Co.,  119  Fed. 
391;  Piatt  v.  Philadelphia  &  R.  R. 
Co..  51  led.  569;  X.  Y.,  P.  &  O.  R. 
Co.  v.  X.  Y..  L.  F.  &  W.  R.  Co., 
5S  Fed.  268;  Dillon  v.  Oregon,  S. 
L.  &  U,  X.  Ry.  Co..  66  Fed.  622; 
Coltrane  v.  Templeton,  106  Fed.  370. 
375.  See  Corn  Fxchange  Rank  v. 
Rockwell,  oi  111.  App.  506;  Taylor 
v.  Atlantic  G.  YV.  Ry.  Co..  57  How. 
Pr.  (X.  Y.)  9.  But  see  .Mercantile 
Tr.  Co.  v.  Kanawha  &  O.  Ry.  Co.,  39 
Fed.  337;  Atkins  v.  Wabash.  St.  L. 
&  P.  Ry.  Co.,  29  Fed.  161;  Sands  v. 
E.  S.  Greeley  &  Co..  C.  C.  A.,  88 
Fed.  130,  132.  133.  Wallace,  J.; 
"When  such  an  application  is  made, 
the  court  to  which  it  is  addressed 
exercises  its  own  original  jurisdic- 
tion. The  decree  in  the  court  of 
the  domicile  of  the  corporation  is 
evidence  in  every  other  State  that 
the  corporation  is  insolvent  and 
that  a  proper  case  exists  in  that 
State  for  the  appointment  of  a  re- 
ceiver and  it   is  to  be  respected  ac- 


cordingly in  obedience  to  the  con- 
stitutional provision  whereby  full 
faith  and  credit  is  to  lie  given  in 
each  State  to  the  records  and  judi- 
cial proceedings  of  every  other  State 
of  the  Union.  But  it  is  for  the 
court  to  which  the  application  is 
made  to  decide  what  remedy  it 
should  extend  in  the  particular  case 
and  whether  the  proper  administra- 
tion of  the  assets  requires  the  ap- 
pointment of  a  receiver."  In  Conk 
lin  v.  I'.  S.  Shipbuilding  Co..  123 
Fed.  913.  916,  9  17.  Putnam.  J.: 
"Now  comes  the  question  as  to  the 
nature  of  the  hill  before  me.  li 
this  were  a  bill  asking  me  merely 
to  appoint  a  receiver  ad  interim. 
ancillary  to  an  ad  interim  receiver 
appointed  in  Xew  Jersey,  T  should 
pay  no  attention  to  it.  But  in  my 
view  it  is  a  bill  asking  me  to  assist 
in  enforcing  a  final  decree  made  by 
the  Circuit  Court  for  the  District 
of  Xew  .Jersey,  and  asking  me  to 
gather  together  assets,  or  pause 
them  to  be  gathered  together,  so 
that  they  can  ultimately  be  ac- 
counted for  where  they  should  ul- 
timately be  accounted  for;  that  is. 
for  the  Circuit  Court  fo«-  the  Dis- 
trict of  Xew  .Jersey.  It  is  "ike  any 
bill  asking  the  gathering  up  of  as- 
sets by  an  ancillary  proceeding  for 
the  purpose  of  causing  them  to  be 
remitted  to  be  disposed  of  by  the 
court  having  jurisdiction  at  the 
place  of  domicile.  Such  proceedings 
relate  alike  to  the  estates  of  de- 
ceased persons,  to  corporations,  and 


950 


RECEIVERS. 


[§    304 


joining  with  him,  a  co-receiver  who  resides  within  the  ancillary 
jurisdiction.3     The  usual  practice  is  to  make  such  an  applica- 


to  all  other  subject  matters  where 
there  is  occasion  for  gathering  to- 
gether and  administering,  marshal- 
ing, and  forwarding  the  net  results 
to  the  court  of  primary  jurisdic- 
tion. In  my  view,  it  is  a  proper 
hill,  addressed  properly  to  the 
equity  side  of  this  court,  praying 
final  relief  of  the  kind  I  Have  de- 
scribed, to  which  the  motion  now 
before  us  is  purely  interlocutory  in 
its  character,  with  a  view  to  the 
temporary  administration  of  the  as- 
sets until  this  bill  is  disposed  of 
nn  a  hearing  on  the  merits.  There- 
fore I  find  no  difficulty  in  the  frame 
of  the  bill,  except  the  necessity  of 
making  these  two  subsidiary  corpo- 
rations parties  defendant.-'  It  has 
been  held  that,  when  a  receiver  has 
been  appointed  in  a  court  where 
proceedings  in  bankruptcy  are  pend- 
ing, the  Bankruptcy  Court  in  an- 
other district  where  there  are  assets 
may  appoint  the  same  person  an- 
cillary receiver  of  property  within 
its  district,  upon  the  petition  of  the 
original  petitioners  in  bankruptcy. 
Re  Schrom  (£.  D.  la.).  07  Fed. 
760;  Re  Sutter  Bros.  (S.  D.  X.  Y.), 
131  Fed.  054;  Re  Benedict  (E.  D. 
Wis.),  140  Fed.  55.  Contra.  Re 
Williams  (E.  D.  Arkansas).  120 
Fed.  38,  40.  holding  that  such  an 
appointment  could  only  be  made  by 
a  plenary  bill  in  the  State  courts  or 
the  Circuit  Courts  of  the  United 
States.  Ross-Mecham  Foundry  Co, 
v.  Southern  Car  &  Foundry  Co.  (  W. 
I).  Tennessee),  124  Fed.  403,  409, 
holding  that  it  must  he  by  such  a 
hill  iii  a  court  of  equitable  juris- 
diction, which  may  perhaps  he  a 
District  Court  of  the  United  States, 
but  not  such  a  court  sitting  in  bank- 


ruptcy. In  re  Peiser  (E.  D.  Penn- 
sylvania), 115  Fed.  190;  a  trust 
company  in  Pennsylvania  was  or- 
dered to  show  cause  in  "proceedings 
ancillary  to,  and  in  aid  of.  proceed- 
ings in  bankruptcy  in  the  District 
Court  for  the  southern  district  of 
Xew  York."  why  it  should  not  pay 
property  of  the  bankrupt  to  the 
receiver  appointed  in  the  Xew  York 
district.  See  Ancillary  Receivers  in 
Bankruptcy  by  L.  M.  Friedman, 
Harv.  Law  Rev.,  xvin.  510.  For  a 
form  of  a  decree  and  order  appoint- 
ing an  ancillary  receiver,  see  Balti- 
more &  0.  R.  Co.  v.  Freeman.  C.  C. 
A.,  112  Fed.  237:  Conklin  v.  U.  S. 
Shipbuilding  Co.,  124  Fed.  1020.  In 
Bowker  v.  Haight  &  Freese  Co. 
(where  the  writer  was  counsel),  al- 
though the  corporation  was  char- 
tered in  Xew  York,  the  Federal 
court  there  treated  its  receivership 
as  ancillary  to  the  proceedings  in 
Massachusetts,  where  a  receiver  had 
been  first  appointed  and  the  corpo- 
ration  subsequently  appeared. 

3  Bowker  v.  Haight  &  Freese  Co., 
S.  D.  X.  Y..  May  10th.  1905.  That 
has  been  said  to  be  the  rule  in  the 
First  Circuit,  Piatt  v.  Phil.  &  R.  R. 
Co..  54  Fed.  569:  Coe  v.  East  &  W. 
R  Co.  of  Ala..  52  Fed.  531.  But  not 
in  the  district  of  Maine,  where,  in 
the  absence  of  extraordinary  cir- 
cumstances, public  notice  of  the  ap- 
plication by  publication  and  other- 
wise is  usually  required.  Conklin  v. 
U.  S.  Shipbuilding  Co..  123  Fed.  013: 
Haydock  v.  Fisheries  Co..  150  Fed. 
988.  It  has  frequently  been  done 
in  the  Second  Circuit.  Buchanan 
v.  Bay  State  Gas  Co..  S.  D.  X.  Y., 
October  10.  1890.  In  the  same  case 
in    which    the    author    was    counsel, 


§   304] 


ANCILLARY    RECEIVERS. 


951 


tion  ex  parte*  but  the  court  may  require  notice  to  be  given  to 
the  persons  interested  in  opposition;5  and  to  subsidiary  or  con- 
stituent corporations  within  the  district,  a  majority  of  lin- 
stock in  which  is  owned  by  the  defendant,  when  it  is  sought  to 
have  their  stock  transferred  upon  their  books  to  the  receiver.6 
Public  notice  by  advertisement  in  daily  papers  in  and  outside 
of  the  ancillary  district,  and  notice  to  the  United  States  attor- 
ney for  the  ancillary  district,  may  also  be  required.7  The  ap- 
pointment may  be  vacated  after  hearing  parties  interested.8 
The  better  practice  is  to  move  in  a  new  suit  instituted  by  tjbe 
plaintiff  to  the  bill  upon  which  the  original  receiver  was  ap- 
pointed, or  by  some  other  creditor9  or  stockholder,10  claiming 
a  right  to  share  in  the  property  of  which  a  receiver  is  desired. 
It  seems  that  an  appearance  and  a  waiver  of  an  objection  to 
the  jurisdiction  because  of  non-residence  may  be  made  in  the 
name  of  a  defendant  corporation  by  the  receiver  appointed  in 
the  State  of  its  incorporation11  at  least  where  the  officers  and 
directors  of  the  corporation  have  been  enjoined  from  acting.  It 
seems  that  the  application  should  not  be  made  by  the  receiver 
who  wishes  the  ancillary  appointment;  12  nor  in  a  summary  ap- 


ancillary  receivers  were  thus  ap- 
pointed ex  parte  in  the  Circuit 
Courts  of  New  Jersey.  Pennsylvania 
and  Massachusetts. 

4  Bowker  v.  Haight  &  Freese  Co., 
S.  D.  X.  Y..  May  10th.  190.1 ;  Fair- 
view  Fluor  Spar  &  Lead  Co.  v.  Ul- 
rich,  C.  C.  A..   192  Fed.  894. 

5  Greene  v.  Star  C.  &  P.  Car.  Co., 
99  Fed.  656;  Conklin  v.  U.  S.  Ship- 
building Co.,  123  Fed.  913;  Hay- 
dock  v.  Fisheries  Co.,  156  Fed. 
988. 

6  Conklin  v.  U.  S.  Shipbuilding 
Co.,   123   Fed.  913.   914. 

'Qonklin  v.  U.  S.  Shipbuilding 
Co.,  123  Fed.  913;  Haydock  v.  Fish- 
eries Co..    156   Fed.  9SS. 

8  Greene  v.  Star  C.  &  P.  Co.,  99 
Fed.  656. 

9  In  re  Brant.  96  Fed.  257; 
Greene  v.  Star  C.  A  P.  Co.,  99  Fed. 
656. 


lOBluefields  S.  S.  Co.  v.  Steele, 
('.  C.  A.,  192  Fed.  23.  See  s.  c.  C. 
C.  A..  184  Fed.  584.  106  C.  C.  -\.. 
564. 

H  That  was  done  in  all  the  courts 
in  the  case  of  Buchanan  v.  Bay 
State  Gas  Co.,  supra,  note  3.  Stone 
v.  Pontiac  I!.  R.  Co..  X.  Y.  S.  ( '.. 
County  of  X.  Y..  Special  y  Term, 
April  12.  1905.  See  infra.  £3  307, 
311. 

12  In  re  Brant.  96  Fed.  257: 
Greene  v.  Star  C.  &  P.  Car  Co..  99 
Fed.  650;  Mahon  v.  Ongley  Fl.  Co.. 
156  \.  V.  196.  Where  receivers  ap- 
pointed in  one  district  obtained 
their  appointment  in  another  dis- 
trict upon  a  bill  filed  by  them  <  » 
parte,  which  prayed  for  no  distinct 
equitable  relief:  it  was  held  that 
that  did  not  give  them  power  to 
sue  in  the  latter  district.  Fail  view 
Flour,  Spar  &  Lead  Co.  v.  Ulrich,  i  . 


952 


RECEIVERS. 


[§   304 


plication  where  no  bill  has  been  tiled.13  It  is  the  safer  practice 
for  the  bill  to  show  the  difference  of  citizenship  or  Federal  ques- 
tion that  will  be  essential  to  the  jurisdiction  over  the  original 
appointment ;  but  it  might  be  held  that  a  Federal  question 
sufficiently  appeared  when  the  bill  was  brought  to  enforce  the 
final  decree  of  a  Federal  court  of  equity  in  another  district.14 
The  original  receiver  need  not  be  made  a  party  to  the  bill,15  nor 
is  there  any  necessity  for  joining  another  corporation,  against 
which  charges  are  made  in  the  bill,  where  no  relief  is  asked 
against  it ; 16  but,  where  there  is  a  prayer  to  have  transferred  to 
the  name  of  the  receiver  shares  of  the  capital  stock  of  another 
corporation,  such  corporation  should  be  made  a  party.17  The 
ancillary  appointment  depends  upon  the  comity  of  the  court 
that  has  jurisdiction  of  the  assets  sought  to  be  impounded.18  It 
may  refuse  to  give  the  original  receiver  an  ancillary  appoint- 


C.  A.,  192  Fed.  894.  The  practice  in 
the  Third  Circuit  has  heen  said  by 
Judge  McPherson  to  permit  this, 
and  lie  required  the  application  to 
be  so  made  in  the  Matter  of  Haight 
&  Freese  Co.,  E.  D.  Pa..  May,  1905. 

13  Ibid. 

HConklin  v.  U.  S.  Shipbuilding 
Co.,  123  Fed.  913,  914. 

15  Phinizy  v.  Augusta  &  K.  R.  Co., 
50   Fed.   273. 

16  Phinizy  v.  Augusta  &  K.  R.  Co., 
56   Fed.  273. 

I'Conklin  v.  U.  8.  Sbipbuilding 
Co..  123  Fed.  913. 

18  Central  Tr.  Co.  v.  Texas  &  St. 
L.  Ry.  Co..  22  Fed.  135;  Mercantile 
Tr.  Co.  v.  Kanawha  &  0.  Ry.  Co., 
39  Fed.  337;  Atkins  v.  Wabash.  St. 
I,.  &  P.  Ry.  Co..  29  Fed.  101  ;  Kirker 
v.  Owings.  C.  C.  A..  98  Fed.  499: 
Farmers'  L.  &  Tr.  Co.  v.  No.  Pac. 
R.  Co..  69  Fed.  871.  Conklin  v.  V. 
S.  Shipbuilding  Co.,  123  Fed.  913. 
915.  916,  per  Putnam.  J.:  "The 
rule  of  so-called  comity  bas  little 
influence  with  me.  The  best  late 
writer  on  international  law — Dicey 
— says     very      truly:        'The     term 


"comity,"  as  already  pointed  out.  is 
open  to  the  charge  of  implying  that 
the  judge,  when  he  applies  foreign 
law  to  a  particular  case,  does  so  as 
a  matter  of  caprice  or  favor.'  It  is 
rather  a  scapegoat,  an  opportunity 
of  escape  for  the  court.  I  know  of 
few  propositions  that  now  come  be- 
fore the  courts  which  are  not  gov- 
erned by  law.  and  in  this  case  I 
must  be  governed  by  the  law  as 
practiced,  and  by  the  precedents. 
and  not  by  any  mere  matter  of 
comity.  The  law  as  recognized  in 
the  Circuit  Courts  of  the  United 
States  is  that,  when  the  Federal 
court  of  jurisdiction  at  the  domicile 
of  the  corporation  appoints  a  re- 
ceiver, or  makes  a  decree  winding 
up  a  corporation  and  disposing  of 
its  assets,  a  decree  of  foreclosure, 
or  any  other  decree  looking  to  a 
disposition  of  its  property,  there- 
upon, assuming  that  to  aid  another 
Federal  court  involves  a  Federal 
question  which  will  lawfully  sup- 
port the  exercise  of  jurisdiction  by 
the  Federal  judiciary,  the  Circuit 
Courts   in   other   circuits   will   exer- 


304] 


ANCILLARY    RFXEIVERS. 


953 


1   •         20 

mem.19    And,  after  such  an  appointment,  it  may  remove  turn. 
It  has  been  held  that  the  suit  cannot  be  maintained   merely 

for  the  purpose  of  obtaining  a  ratification  by  the  court  of  what 
has  been  done  in  a  court  of  another  jurisdiction.21  I  poij  an  an- 
cillary receivership,  the  court  that  had  original  jurisdiction  is 
considered  as  the  court  of  primary  jurisdiction  and  oi  prin- 
cipal decree;  and  proceedings  in  the  other  courts  are  usually 
considered  as  ancillary  and  subordinate  thereto.  In  the  case 
of  a  railway  company  chartered  by  the  United  States,  extending 
through  several  districts,  the  court  of  primary  jurisdiction 
should  ordinarily  be  that  where  the  principal  operating  offices 
are  situated  and  there  is  some  material  part  of  the  railroad. 
But  where  the  corporation  had  recognized  the  jurisdiction  of  a 
eourt  in  another  district,  it  was  held  that  that  court  should  be 
considered  the  court  of  primary  jurisdiction.23  Where  the 
iirst  receiver  of  a  State  corporation  had  been  appointed,  in  a 
district;  where  its  business  was  carried  on  and  a  large  part  of  its 
property  situated,  and  the  corporation  had  acquiesced  in  the 
jurisdiction  there;  it  was  held  that  a  receiver,  subsequently  ap- 
pointed in  a  district,  of  the  State  where  the  corporation  was 
Chartered,  must  be  treated  as  auxiliary  and  ancillary  to  the 
former.24     The  accounting  of  the  receiver  is  usually  first   in- 


cise ancillary  jurisdiction,  and  as- 
sist in  carrying  out  the  purpose  of 
the  court  at  the  place  of  domicile." 
But  see  Farmers'  L.  &  Tr.  Co.  v. 
No.  Pac.  R.  Co.,  73  Fed.  26. 

19  Mercantile  Tr.  Co.  v.  Kanawha 
&  0.  Ry.  Co.,  39  Fed.  337:  Creene 
v.  Star'  C.  &  P.  Car  Co.,  99  Fed. 
•65G;  Phinizy  v.  Augusta  &  K.  R. 
Co.,  56  Fed.  273.  But  see  Fanners' 
Loan  &  Tr.  Co.  v.  No.  Pac.  R.  Co., 
72  Fed.  2(i. 

20  Atkins  v.  Wabash*  St.  L.  &  P. 
Ry.  Co.,  29  Fed.  ltil;  Creene  v. 
Star  C.  &  P.  Car  Co..  99  Fed.  696; 
Farmers'  L.  &  Tr.  Co.  v.  No.  Pac. 
R.  Co..  69  Fed.  871.  Rut  see  Farm- 
ers' L.  &  Tr.  Co.  v.  No.  Pac.  R.  *'<,., 
72  Fed.  26:  Chattanooga  T.  Ry.  Co. 
v.  Felton,  69  Fed.  273. 


21  Fairview  Fluor  Spar  &  Lead 
Co.  v.  Ulrich.  C.  C.  A..  192  Fed.  894. 
S97. 

22  Farmers'  L.  &  Tr.  Co.  v.  No. 
Pac.  R.  Co..  72  Fed.  26.  31.  as  to  the 
rule  in  districts  in  the  same  cir- 
suit.  See  Jud.  Code  §  56;  quoted, 
infra,  §  306.  For  a  case  of  a  dif- 
ference between  the  administration 
in  two  districts  of  the  same  Circuit 
where  the  Circuit  Judge  refused  to 
interfere,  see  Central  Tr.  Co.  v. 
Texas  &  St.  L.  Ry.  Co.,  2%  Fed.  ]3o. 

23  Farmers"  L.  &  Tr.  Co.  v.  No. 
Pac.   R.  Co.,  72    Fed.  26. 

24  Lewis  v.  Am.  Naval  Stores  Co.. 
11!)  Fed.  391,  397;  Bowkcr  v. 
Maijjht  &  Freese  Co.,  137  ^ed.  1UU6. 


954 


RECEIVERS. 


[§    304 


stitiited  in  the  court  whore  he  was  first  appointed.25  lie  may 
be  directed  to  file,  in  the  court  of  ancillary  jurisdiction,  a  cer- 
tified copy  of  such  accounts  and  order  approving-  them.26  The 
court  of  ancillary  jurisdiction  has  ordered  a  sale  in  the  manner 
directed  by  that  of  primary  jurisdiction,  and  in  opposition  to 
its  own  views  of  the  proper  course.27  Where  the  court  of  pri- 
mary jurisdiction  exacted  a  stipulation  from  the  receiver  as  to 
his  conduct  in  a  suit  in  the  ancillary  jurisdiction,  the  court 
there  enforced  observance  of  such  stipulation.28  The  courts 
of  ancillary  jurisdiction  frequently  remit  to  the  court  of  pri- 
mary jurisdiction,  for  relief  of  claimants  to  a  preferential  inter- 
est in  the  fund.29  They  may  establish  a  resident's  status  as  a 
creditor ; 30  but  not  if  the  distribution  of  the  estate  will  be  there- 
by confused  or  embarrassed.31  To  the  latter  court  also  was  left 
the  determination  of  the  propriety  of  continuing  a  traffic  agree- 
ment operating-  in  two  or  more  States,32  and  in  one  case  even  the 
propriety  of  excepting  from  the  receivership  assets  within  the 
ancillary  jurisdiction.33  It  has  been  held  that  assets  in  the 
hands  of  ancillary  receivers  cannot  be  subjected  to  the  payments 
of  damages  for  torts  committed  by  the  receivers  in  the  primary 
jurisdiction.34  The  court  of  ancillary  jurisdiction  has  control 
over  the  acts  of  the  ancillary  receiver  within  its  territorial  lim- 


25  Jennings  v.  Phila.  &  R.  R.  Co.. 
23  Fed.  500.  As  to  the  effect  of 
an  order  or  decree  therein  in  an 
ancillary  jurisdiction,  see  Coe  v. 
Patterson.   122  App.   Div.  70. 

26  Central  R.  &  Banking  Co.  v. 
Farmers'  L.  &  Tr.  Co..  113  Fed.  405, 
412. 

27  Central  Tr.  Co.  v.  V.  S.  Flour 
Miffing  Co..  112  Fed.  371. 

28  Wheeling.  R.  &  St.  T.  Ry.  Co. 
v.  Cochran.  85  Fed.  500. 

29  Jennings  v.  Philadelphia  &  R. 
R.  Co..  23  Fed.  560:  Clyde  v.  Rich- 
mond &  D.  R.  Co..  56  Fed.  539; 
Bowker  v.  Haight  &  Freese  Co.,  140 
Fed.  707.  Tn  Farmers'  L.  &  Tr.  Co. 
v.  Northern  Pac.  R.  R..  U.  S.  C.  C, 
S.  D.  X.  Y..  X.  Y.  L.  J.  May  15, 
10(12.   it  was  held  that  the  claimant 


of  a  lien  upon  real  estate  must 
apply,  either  to  a  court  of  primary 
jurisdiction,  or  to  a  court  in  the 
State  or  district  where  the  real  es- 
tate is  situated. 

30  l'fahler  v.  McCrum-Howell  Co., 
107  Fed.  6S4.  Rut  see  Seminole 
Securities  Co.  v.  Southern  Life  Ins. 
Co..  182  Fed.  85.  03:  Whelan  v.  En- 
terprise Transp.   Co..   138   Fed.   138. 

31  Seminole  Securities  Co.  v. 
Southern  Life  Ins.  Co..  182  Fed.  85, 
03;  Pfahler  v.  McCrum-Howell  Co., 
107  Fed.  684. 

32  Ames  v.  Union  Pac.  Ry.  Co.,  60 
Fed.  006. 

33  Mercantile  Tr.  Co.  v.  Baltimore 
&  O.  Ry.  Co..  70  Fed.  388. 

34  Cniim  Tr.  Co.  v.  Atchison,  T. 
&  S.   F.   R.  Co..  87  Fed.  530. 


§   304] 


ANCILLARY    RECEIVERS. 


955 


its.  The  courts  of  ancillary  administration  have  the  power  to 
retain  the  assets  which  they  collect  and  to  distribute  then?  indc- 
pendentlv.36  They  usually  apply  them  to  the  dis,chargp  of  local 
liens,37  the  expenses  of  the  ancillary  receivership  and  to  the 
payment  of  claims  arising  out  of  their  management  of  the  prop- 
erty before  transmitting  any  funds  to  the  court  of  primary  ju- 
risdiction.38 Local  creditors,  without  liens  or  other  security. 
have  no  absolute  right  to  assets  in  the  hands  of  the  ancillary 
receiver  prior  to  that  of  creditors  in  the  other  districts;39  and 
the  ancillary  court  may  order  the  transmission  of  all  the  pro- 
ceeds of  the  assets  to  the  court  of  primary  jurisdiction  and  re- 
quire unsecured  local  creditors  to  present  their  claims  for  ad- 
judication there.40  The  proceedings  in  the  courts  of  ancillary 
administration  are  not  binding  upon  that  of  original  jurisdic- 
tion;41 except  to  the  extent  to  which  they  afreet  assets  within 
the  territorial  jurisdiction  of  the  former  courts.  The  court  of 
primary  jurisdiction  remitted  to  the  ancillary  court  the  deter- 
mination of  the  priority  of  receiver's  certificates  issued  by  the 
latter.42     A  judgment  against  an  ancillary  receiver  is  not  bind- 


35  Chattanooga  Terminal  Ry.  Co. 
v.  Felton,  69  Fed.  273. 

36Rirker  v.  Owing's,  C.  C.  A.,  98 
Fed.  499;  Sands  v.  E.  S.  Greeley  & 
Co.,  C.  C.  A.,  88  Fed.  130;  Miles 
v.  Xew  So.  B.  &  L.  Ass'n.  99  Fed. 
4;  X.  Y.  Security  &  Tr.  Co.  v.  Equi- 
table Mtg.  Co..  71  Fed.  556, 

37  Fletcher  v.  Harney  P.  T.  M. 
Co.,  84  Fed.  5aj5,  where  the  court 
of  primary  jurisdiction  expressed 
its  views  as  to  the  proper  action 
of  the  court  of  ancillary  jurisdic- 
tion upon  claims  for  taxes.  Clyde 
v.  Richmond  &  D.  R.  Co.,  65  Fed. 
330;  Central  Tr.  Co.  v.  East  Tenn., 
V.  &  <;.  Ry.  Co..  (19  Fed.  658. 

SSKirker  v.  Qwings,  C.  C.  A..  9S 
Fed!  499. 

39  Sands  v.  E.  S.  Greeley  &  Co., 
C.  C.  A.,  SS  Fed.  130;  Smith  \. 
Tag-art.  < '.  C.  A.,  87  Y^\.  94:  Par- 
sons v.  Charter  Oak  L.  1.  Co..  31 
Fed.    305.      But    see    Taylor    v.    Life 


Ass'n  of  A.,  3  Fed.  4(i.") ;  Farmers' 
L.  &  Tr.  Co.  v.  No.  Pac.  R.  Co.,  72 
Fed.  26,  31  ;  Kirker  v.  Owings,  C. 
C.  A.,  98  Fed.  499;  Johnson  v. 
Southern  B.  &  L.  Ass'n.  !i!i  l-\~d.  (!4(i. 
For  a  case  where  they  were  not  al- 
lowed to  interfere  with  the  settle- 
naent  of  a  suit  by  the  ancillary  re- 
ceivers, see  Seminole  Securities  Co. 
v.  Southern  Life  Ins.  Co.,  1S2  Fed. 
85. 

40  Ibid.:  Jennings  v.  Phila.  &  R. 
R.  Co.,  23  Fed.  569;  Sands  v.  F.  S. 
Greeley  &  Co.,  C.  C.  A..  88  Fed.  13Q; 
Smith  v.  Tag-art.  C.  C.  A..  87  Vrd. 
94:  Parsons  v.  Charter  Oak  L.  1. 
Co..  31  Fed.  305.  See  So.  Banking 
&  Loan  Ass'n  v.  Miller.  C.  C.  A., 
1  IS   Fed.  369. 

41  Reynolds  v.  Stockton.  140  I'.  S. 
254.  272.  35   L.  ed.  404.  470. 

42  Doe  \.  \.  W.  Coal  &  Transp. 
'Co.,  78  Fed.  02. 


056 


RECEIVERS. 


[§   304 


ing  upon  the  court  of  primary  jurisdiction.43.  But  it  has  boon 
hold  that  a  suit  for  services  to  the  ancillary  receivers  in  aid- 
ing in  the  sale  of  assets  may  be  brought  against  the  same  per- 
sons as  receivers  in  the  court  of  primary  jurisdiction.44  An 
ancillary  receiver  is  hot  justified  in  sending  the  assets  to  the 
court  of  original  jurisdiction  without  the  permission  of  the 
ancillary  court;  and  he  may  be  held  personally  responsible  for 
such  conduct.45 

§  305.  Terms  upon  the  appointment  of  receivers,  and 
preferences  in  foreclosure  suits.  As  the  appointment  of  a 
receiver  is  in  its  discretion,  the  court  may  impose  terms  upon 
the  party  applying  for  it  or  may  deny  the  application  upon  the 
riling  of  a  bond  bv  the  defendant.1  Thus,  it  mav  insist  as  a  con- 
dition  precedent  to  appointing  a  receiver  to  manage  a  colliery 
that  the  moving  party  advance  the  funds  necessary  to  continue 
the  business.2  So  a  party  or  person  interested  in  a  suit  was  in 
England  rarely  appointed  receiver  unless  he  agreed  to  act 
without  compensation.3  By  analogy  to  this  rule  to  practice,, 
the  Supreme  Court  of  the  United  States  first  sustained  the 
principle  granting  preferences  to  certain  classes  of  unsecured 
creditors  upon  the  foreclosure  of  railroad  mortgages.4    It  is  the 


«  Reynolds  v.  Stockton.  110  U.  S. 
254',  35  L.  ed.  404. 

44  Colonial  Tr.  Co.  v.  Fae!  Pack- 
ing &  Xav.  Co..   142  Fed.  208. 

45Kirker  v.  Owihgs,  C.  C.  A.,  OS 
Fed.  400. 

§  .30.1.  l  Norton  v.  Hartford.  113 
Vvd.  1023;  Cary  Bros.  v.  Dalhtflf 
Const.  Co..  120  Fed.  584. 

2Cibbs  v.  David.  L.  R.  20  Eq.  373. 

3\ViJson  v.  flreenwood,  1  Swanst. 
471. 

4\Yaite,  C.  J.,  in  Fosdick  v. 
Schall.  00  17.  S.  235.  251.  252.  25 
L.  ed.  330.  342.  See  also  Turner 
v.  hid.,  B.  &  \Y.  By.  Co..  8  Biss.  315. 
This  is  said  to  depend  upon  the 
principle  that  he  who  seeks  equity 
must  do  equity.  Waite.  C.  J.,  in 
F..sdick  v.  Schall,  00  U.  S.  235.  253. 
25  L:  ed.  330.  342:  Fanners'  L.  & 
T.  Co.   v.  Green   Bay,  \Y.  &   St.  P. 


Ry.  Co.,  45  F'ed.  004.  000.  007. 
"The  doctrine  is  analogous  to  that 
of  the  admiralty  allowing  certain 
supplies  to  a  vessel  precedence  over 
a  mortgage  upon  the  vessel,  and 
rests  upon  the  same  principle.  Tlie 
vessel  must  not  be  allowed  to  rot 
at  the  wharf.  The  railway  must 
not  be  permitted  to  rust,  and  its 
franchise  to  be  forfeited,  through 
failure  to  operate.  Such  things, 
therefore,  that  are  done  to  avoid 
such  result,  working  destruction  to 
the  mortgage,  should  be  compen- 
sated in  priority  to  the  mortgage." 
So  Caldwell,  J.,  in  Farmers'  L.  & 
T.  Co.  v.  Kansas  City,  YV.  &  N.  \Y. 
R.  Co..  53  Fed.  182,  100.  101.  For 
criticisms  of  the  practice,  see  Coe 
v.  X.  J.  .Midland  Ry.  Co..  27  N.  J. 
Eq.  37;  Rant  v.  Attrill.  106  X.  Y. 
423,  00  Am.   Rep.  450:    Ilollister  v. 


305] 


PREFERENCES   IN   FORECLOSURE   SOTS. 


957 


better  practice  to  provide  for  such  preferences  as  a  condition 
in  the  order  for  the  appointment  of  the  receiver.5  Even  where 
no  such  order  has  been  made  when  the  receiver  was  appointed, 
if  it  appears  at  any  time  in  the  progress  of  the  cause  that  bonded 
interest  has  been  paid,  additional  equipment  provided,  or  re- 
pairs of  the  property  made  out  of  its  earnings  during  a  short 
time  before  the  default  in  interest,  the  court  usually  direct- 
that  such  debts  then  incurred  be  paid  out  of  the  income  of  the 
receivership  after  the  payment  of  the  receiver's  expenses  in 
preference  to  the  claims  of  creditors  secured  by  a  mortgage  or 
other   lien.6     Although   usually   they   are  paid  out  of  the   net 


Stewart.  11]  N.  Y.  644,  663.  The 
doctrine  originated  in  Kentucky. 
Douglas  v.  Cline,  12  Hush  (Ky.), 
013    1187(1). 

5  Central  T.  Co.  v.  St,  Louis.  A. 
&  T.  Ry.  Co.,  41  Fed.  551.  For 
forms  of  such  orders,  see  Dow  v. 
Memphis  &  L.  R.  Ry.  Co..  20  Fed. 
200,  206,  207  ;  Central  T.  Co.  v.  St. 
Louis.  A.  &  T.  Ry.  Co..  41  Fed.  55  L 
553.  554. 

6  In  Fosdick  v.  Schall.  99  U.  S. 
235,  253,  254.  25  L.  ed.  330.  342. 
343:  Fosdick  v.  Car  Co.,  99  U.  S. 
250.  25  L.  ed.  344;  Hale  v.  Frost, 
99  C  S.  389,  25  L.  ed.  419;  Milten- 
berger  v.  Logansport  Ry.  Co.,  100 
U.  S.  280.  308.  27  L.  ed.  117.  125; 
Union  T.  Co.  v.  Souther.  107  U.  S. 
501.  27  L.  ed.  4S8;  Union  T.  Co.  v. 
Walker,  107  U.  S.  590.  27  L.  ed.  400; 
Burnhani  v.  Bowen.  Ill  U.  S.  776, 
28  L.  ed.  590;  Blair  v.  St.  Louis,  H. 
&  K.  Ry.  Co..  22  Fed.  471.  474.  with 
a  valuable  note;  Porter  v.  Pittsburg 
Bessemer  S.  Co..  120  U.  S.  049.  30 
L.  ed.  S30;  Virginia  &  A.  Coal  Co. 
v.  Central  R.  &  B.  Co.,  170  U.  S. 
355,  42  L.  ed.  1008:  Southern  Ry. 
Co.  v.  Carnegie  Steel  Co.,  170  U.  S. 
257,  44  L.  ed.  458;  Douglas  v.  Cline, 
12  Bush  (Ky.).  008.  The  rule  is 
ordinarily  otherwise  when  there  was 
no   diversion   of   the   earnings   from 


the  payment  of  operating  expenses. 
Penn  v.  Calhoun.  121  U.  S.  251.  30 
L.  ed.  915;  St.  Louis,  A.  #  T.  H.  R. 
Co.  v.  Cleveland.  C,  C.  &  I.  Ry.  Co.,. 
125  U.  S.  058,  31  L.  ed.  832;  Wood 
v.  Guarantee  T.  &  S.  D.  Co.,  128  U. 
S.  410.  32  L.  ed.  472;  Kneeland  v. 
Am.  L.  &  T.  Co..  130  U.  S.  80.  34 
L.  ed.  379:  Lackawanna  I.  &  C.  Co. 
v.  Farmers'  L.  &  T.  Co.,  170  U.  S. 
298,  44  L.  ed.  475;  U.  S.  Trust  Co. 
v.  X.  Y.  W.  S.  &  B.  R.  Co.,  25  Fed. 
800;  Finance  Co.  of  Pennsylvania  v. 
Charleston,  C.  &  C.  R.  Co.,  52  Fed. 
52-1  :  Ruhlender  v.  Chesapeake,  O.  &. 
S.  W.  R.  Co..  C.  C.  A.,  91  Fed.  5; 
International  T.  Co.  v.  T.  B.  Town- 
send  B.  &  C.  Co..  C.  C.  A.,  95  Bed. 
850;  Gregg  v.  Metropolitan  Tr.  Co., 
C.  C.  A.,  124  Fed.  721;  aff'd  197 
U.  S.  183.  49  L.  ed.  717.  The  pay- 
ment by  the  receivers  of  rent  to  an- 
other railway  company  under  a 
lease,  made  prior  to  the  receivership 
and  adopted  by  them,  does  not  con- 
stitute such  a  diversion  of  income 
as  will  entitle  a  creditor,  whose 
claim  was  subsequent  to  the  lease, 
to  a  preference  over  a  mortgage. 
Fordyce  v.  Omaha.  Kansas  City  & 
E.  R.  R..  145  Fed.  544.  In  no  case 
is  a  creditor  entitled  to  a  preference 
because  of  a  diversion,  unless  there 
would    have    been    net    earnings    ap- 


958 


RECEIVERS. 


[§  305 


income  of  the  receivers,  in  special  eases,7  especially  where  this 
income  has  born  used  to  pay  for  betterments  or  mortgage  in- 
terest by  a  receiver  appointed  in  the  foreclosure  suit8  or  even 
by  a  receiver  appointed  in  a  prior  suit  to  foreclose  a  junior 
[ion  9  or  to  preserve  the  property  for  other  creditors  or  stock- 
holders,10 or  by  a  reorganization  committee  representing  bond- 
holders and  stockholders,11  such  claims  have  been  ordered  paid 
out  of  the  proceeds  of  the  foreclosure  sale  before  any  payment 
on  account  of  mortgage  bonds;  and  in  some  cases  it  has  been 
made  a  condition  of  the  sale  that  the  purchaser  pay  these  claims 
in  addition  to  the  nominal  amount  of  his  bid.12     The  doctrine 

m 

has  been  extended  so  as  to  provide  for  preferences  to  those  who 
have  furnished  supplies  and  performed  labor,  and  to  railroad 
companies  with  connecting  lines,  who  have  claims  for  the  set- 
tlement of  ticket,  freight  and  supply  accounts,  and  to  loans  in- 
curred within  a  short  time  before  the  receivership;  irrespective 
of  whether  there  has  been  a  diversion  of  income  for  the  benefit 
of  the  mortgage  bondholders,13  but  not  to  the  claim  of  another 


plicable  to  the  claim  had  there  been 
no  such  diversion.     Ibid. 

I  Miltenberger  v.  Loganspo*t,  C. 
C.  L.  \Y.  R.  Co..  106  U.  S.  286.  311. 
813,  27  L.  ed.  117,  12(i.  127:  Vir- 
ginia &  A.  Coal  Co.  v.  Central  R.  & 
!'..  Co..  170  U.  S.  355,  305-367.  42 
L.  ed.  1068,  1071,  1072;  Blair  v. 
St.  Louis,  H.  &  K.  R.  Co..  22  Fed. 
47  1.  47x5;  Kneeland  v.  Bass  F.  £  M. 
Works,  140  l".  S.  r>!»2.  35  L.  ed.  543. 

8  [bid. 

9  Virginia  &  A.  Coal  Co.  v.  Cen- 
tral R.  &  B.  Co..  170  U.  S.  355,  370, 
42  L.  ed.  1068.  1073. 

10  Sec  cases  in  note  20,  infra. 

II  Queen  Anne's  Ferry  &  Equip- 
ment Co.  v.  Queen  Anne's  R.  Co., 
148   Fed.  41. 

12  Southern  Ry.  Co.  v.  Carnegie 
Steel  Co..  176  V.  S.  257,  44  L.  ed. 
45S. 

13  Virginia  &  A.  Coal  Co.  v.  Cen- 
tral R.  Co..  170  U.  S.  355.  365.  42 
L.   ed.    1068.    1071:    Miltenberger   v. 


Logansport.  C.  &  S.  W.  R.  Co.,  106 
U.  S.  286,  311,  312.  27  L.  ed.  117, 
126,  127.  "It  is  easy  to  see  that 
the  payment  of  unpaid  debts  for 
operating  expenses,  accrued  within 
ninety  days,  due  by  a  railroad  com- 
pany suddenly  deprived  of  the  con- 
trol of  its  property,  due  to  opera- 
tives in  its  employ  whose  cessation 
from  work  simultaneously  is  to  be 
deprecated,  in  the  interests  both  of 
the  property  and  of  the  public,  and 
the  payment  of  limited  amounts  due 
to  other  and  connecting  lines  of  road 
for  materials  and  repair,  and  for 
unpaid  ticket  and  freight  balances, 
the  outcome  of  indispensable  busi- 
ness relations,  where  a  stoppage  of 
the  continuance  of  such  business  re- 
lations would  be  a  probable  result, 
in  case  of  nonpayment,  the  general 
consequence  involving  largely,  also, 
the  interests  and  accommodations  of 
travel  and  traffic,  may  well  place 
such    payments    in    the    category    of 


§  305] 


PREFERENCES    IN    FORECLOSURE    SUITS. 


959 


railway  (jQirnpany  for  a  proportionate  share  of  the  feoet  of  main- 
taining flagmen  at  a  crossing.14  nor  to  the  claims  of  transporta- 
tion companies  connecting  with  an  insolvent  steamship  line," 
although  freight  collected  by  the  receiver  for  them  after  his 
appointment  must  be  repaid  by  him.  Betterments,  as  distin- 
guished from  repairs,  are  less  often  allowed  a  preference16  even 


payments  to  preserve  the  mortgaged 
property  in  a  large  sense,  by  main- 
taining the  good  will  and  integrity 

of  the  enterprise,  and  entitle  them 
to  be  made  a  first  lien."  It  has  been 
suggested  that  since  the  enactment 
of  the  Interstate  Commerce  law. 
there  is  no  longer  any  justification 
for  such  a  preference  of  the  claims 
of  other  railroad  companies.  Ces- 
■saiitc  ratioiie.ers.iat  ipsa  lex,  Car- 
bon Fuel  Co.  v.  Chicago  C.  &  L.  R. 
Co.,  C.   C.  A.,  202   Fed.   172,   174. 

"  City  Trust  Co.  v.  Sedalia  Light 
&  Traction  Co..  195   Fed.  845. 

15  YVhelan    v.    Enterprise    Transp. 
Co..  175  Fed.  212. 

16  Lackawanna  1.  &  C.  Co.  v. 
Farmers'  L.  &  T.  Co..  170  C.  S. 
298,  44  L.  ed.  475:  Gregg  v.  Metro- 
politan Tr.  Co..  107  C.  S.  183,  49  L. 
ed.  717:  s.  c,  C.  C.  A..  124  Fed.  721  ; 
Am.  L.  &  Tr.  Co.  v.  E.  &  VY.  R.  Co., 
46  Fed.  101:  Farmers-  L.  &  Tr.  Co. 
v.  Stuttgart  &  A.  R.  Co..  92  Fed. 
240:  Illinois  Tr.  ,v  Saw  l!ank  v. 
Doud.  C.  C.  A..  105  Fed.  123,  hut 
see  dissenting  opinion  of  Caldwell, 
J.:  Xiles  Tool  Works  v.  Louisville, 
X.  A.  &  C.  Ry.  Co..  ('.  C.  A..  112 
Yi'd.  5(11.  5(53:  Central  Trust  Co.  v. 
Colorado  Ry.,  Light  &  Power  Co., 
200  Fed.  85:  Addison  v.  Lewis.  75 
Ya.  701.  713.  'Ilius  a  claim  for  the 
construction  of  a  bridge  was  denied 
a  preference.  Int.  Tr.  Co.  v.  T.  1'.. 
Townsend  P..  &  Cr:  Co.,  C.  C.  A..  95 
Fed.  K5II.  Cdtitrd,  Cleveland.  C  & 
S.  Ry.  Co.  v.  Knickerbocker  Tr.  Co.. 
8d   Fed.  73:    IHaii    \.  St.   Louis.   II.  & 


K.  Ry.  (  o..  23  Vnl  704.  So  were 
claims  for  railroad  ties;  Oregg  v. 
Metropolitan  Tr.  Co..  197  U.  s.  is:;. 
49  L.  ed.  717:  s.  c,  C.  C.  A.,  124 
i'fd.  721;  for  ballast  ears,  Rodger 
Ballasl  (  ar  Co.  v.  Omaha,  K.  c.  & 
F.  R.  Co..  C.  C.  A..  154  Fed.  629: 
Fordyce  v.  Omaha.  Kansas  City  & 
F.  R.  R..  145  Fed.  544:  for  air 
bratees,  which  were  placed  upon  the 
cars  in  obedience  to  an  act  of  Con- 
gress'; State  Tr.  Co.  v.  Kansas  City, 
P.  &  G.  R.  Co..  129  Fed.  455:  for  the 
price  of  machinery  used  in  the  con- 
struction of  car  shops  upon  a  rail- 
road   leased   to   the    mortgagor   and 

not  covered  by  the  mortgage,  Xiles 
Tool  Works  v.  Louisville.  X.  A.  & 
C.  Ry.  Co..  C.  C.  A..  112  Fed.  561, 
564.  See  Fordyce  v.  Kan-as  City 
&  F.  R.  R..  145  Vrd.  544.  for  the 
pi  ice  of  gas  meters  which  were  held 
/o  h<  not  a  part  of  the  operating 
expenses  of  a  <:as  company.  Rey- 
hurn  v.  Consumers'  Gaa  F.  4  L.  (  o., 
29  Fed.  R.  561.  And  preferences 
were  allowed  for  debts  incurred  b\ 
the  purchase  of  an  electric  generator, 
Man.  Tr.  Co.  v.  Sioux  City  C.  Co., 
70  Fed.  658;  and  for  a  new  gear 
icheel  and  pinion  upon  a  cable  rail- 
way. Central  Tr.  Co.  v.  (lark.  (  . 
c.  A.,  si  Fed.  269;  In  Central  Tr. 
Co.  v.  Texas  \  St.  L.  Ry.  Co..  23 
Fed.  704.  7u5.  per  Treat.  J.,  Blair 
v.  St.  I...  II.  &  K.  R.  <  o..  22  \'<h\. 
471.  per  Brewer,  •  !.-  s.  c,  In  re 
Men -iwether.  22  Fed  769,  770,  per 
'I  reat.  .1. :  s.  c.,  23  Fed.  7u4.  per 
Brew  er,    -'..    I  el  tei  ments  '  ivcre    al- 


960 


RECEIVERS. 


[§ 


:>,<>;, 


if  made  l>v  a  receiver  when  the  mortgagee  was  not  a  party  to  the 


lowed  a  preference.  There  was, 
however,  a  .Missouri  statute  (Mo. 
R.  S..  §  3200)  which  may  have  af- 
fected these  decisions.  Where  a 
receiver  had  completed,  under  an 
order  of  the  court,  a  building  part- 
ly constructed  for  the  mortgagor 
upon  property  not  covered  by  the 
mortgage,  it  was  held  that  the  en- 
tire cost  of  the  construction  should 
be  paid  by  the  receiver  before  he 
made  any  payment  to  the  mort- 
gagee1. Girard  I.  &  T.  Ry.  Co.  v. 
(neper,  162  l\  S.  520,  40  L.  ed. 
1062;  Virginia  Passenger  &  Power 
Co.  v.  Lane  Bros.  Co.,  C.  C.  A..  174 
Fed.  513,  improvement  of  water 
power.  Illinois  Tr.  &  Saw  Bank  v. 
Doud,  52  L.R.A.  481.  105  Fed.  123, 
148,  140.  per  Sanborn.  J.:  "When 
a  careful  examination  and  analy- 
sis of  the  facts  and  opinions  in  all ' 
the  cases  in  the  Supreme  Court 
upon  the  subject  of  preferential 
claims  in  suits  to  foreclose  mort- 
gagee of  quasi-public  corporations 
is  made,  and  dicta  are  distin- 
guished from  adjudications,  the 
decisions  of  that  court  will  be 
found  to  sustain  these  proposi- 
tions: A  mortgagee  of  the  proper- 
ty, acquired  and  to  be  acquired, 
and  of  the  income  of  a  quasi-\m\>- 
lic  corporation,  such  as  a  railroad 
company,  obtains  a  lien  upon  the 
net  income  of  the  company  after 
the  current  expenses  of  operation 
incurred  in  the  ordinary  course  of 
business  are  paid,  and  impliedly 
agrees  that  the  gross  income  shall 
be  first  applied  to  the  payment  of 
these  current  expenses,  before  the 
net  income  to  which  he  is  entitled 
arises.  A  court  of  equity  engaged 
in  administering  mortgaged  rail- 
road  property   under  a   receivership 


in  a  foreclosure  suit  may  prefer  un- 
paid claims  for  current  expenses  of 
the  ordinary   operation  of  the  rail- 
road,    incurred     within     a     limited 
time    before    the    receivership,    to    a 
prior    mortgage    lien,    in    the    distri- 
bution of  the  income  or  of  the  pro- 
ceeds   of    the    mortgaged    property. 
If    such    a    mortgagor    diverts    the 
current    income    from    the    payment 
of  current  expenses  to  the  payment 
of    interest    on    the    mortgage    debt, 
or  to  the  improvement  of  the  mort- 
gaged property,  so  that  current  ex- 
penses remained  unpaid  when  a  re- 
ceiver is  appointed,  the  court  may, 
out   of  the   income   accruing  during 
the   receivership,   restore  to  the   un- 
paid   claims    for    current    expenses 
the    amount    so    diverted.      But    if 
there    has    been    no    diversion    there 
can     be     no     restoration,     and     the 
amount    of    the    restoration    cannot 
exceed     the    amount    of    the    diver- 
sion.      The    class    of    claim<    which 
may    be    awarded    a     preference    in 
payment    over    the    prior    mortgage 
debt   in   equity    is   limited   to   claims 
for    current    expenses     incurred    in 
the    ordinary    course    of    the    opera- 
tion    of     the     mortgaged     property 
within    a    limited    time    before    the 
appointment   of  a   receiver.    Tt  does 
not      include      claims      for      money 
loaned,  or  for  material  or  labor  fur- 
nished to  make  necessary   beneficial 
and     permanent     additions     or     im- 
provements to  the  mortgaged  prop- 
erty.     The    broad    language    of    the 
dicta  in  Fosdick  v.  Schall.  that  "nec- 
essary operating  and  managing  ex- 
penses,  proper  equipment,   and  use- 
ful improvements'  are  to  be  deduct- 
ed  from   the  current   income   before 
the    net    income    out    of    which    the 
mortgage  debt   is  to  be  paid  arises, 


§  305] 


PRKFKREXCES    IN    FORECLOSURE    SUITS. 


001 


suit.17  The  later  cases  hold  that  in  a  case  of  a  betterment,  yvhere 
there  lias  been  no  diversion  of  income,  there  can  be 
no  preference,  except  for  wages,  out  pf  the  proceeds  ol 
the  sale,  unless  immediate  payment  is  necessary  in  order  to 
keep  the  railroad  in  operation.18  The  rule  lias  been 
applied  to  an  application  for  ;;  decree  of  strict  foreclosure 
instead  of  a  sale,  whereupon  the  decree  was  granted  saying 
the  rights  of  intervenors  who  held  claims  which  in  the  case  of  a 
receivership  would   have  been   entitled   to   a   preference.  1  lie 

rule  includes  claims  incurred  by  contracts  made  with  a  cor- 
poration to  which  was  leased  the  railroad  foreclosed,  for  the 
benefit  of  which  the  work  was  done,  or  which  it  had  permitted 
to  manage  and  operate  its  railroad  under  color  of  a  lease  or  by 
virtue  of  the  ownership  or  control  of  a  majority  of  its  stock. 
It  must  appear,  however,  in  all  cases,  that  the  creditor  allowed 
the  debt  to  be  incurred  in  the  belief  that  it  would  be  paid  from 


has  been  disapproved  and  modi  tied, 
and  the  class  of  claims  entitled  to 
equitable  preference  lias  been  lim- 
ited, by  the  later  decisions  of  the 
Supreme  Court."  But  see  dissent- 
ing opinion  of  Caldwell.  J.  Cf. 
Farmers"   L.  &   Tr.  Co.  v.  Am.   Wa- 


terworks Co..   K>i 


>3. 


17  Atlantic  Tr.  Co.  v.  Dana.  C. 
C.  A.,  128  Fed.  -in'.):  Fordyce  v. 
Omaha.  K.  C.  &  E.  R.  R.  145  Fed. 
544:  Merchants'  L.  &  Tr.  Co.  v, 
Chicago    Rys.   Co.,    158    Fed.   923. 

W  Gregg  v.  Metropolitan  Tr.  Co.. 
J97  U.  S.  is:;.  4!)  L.  ed.  717:  Fordyce 
v.  Omaha.  K.  0.  &  E.  R,  II.,  145  Fed. 
544:  Cnion  Trust  Co.  v.  Southern 
Sawmills  &.  Lumber  Co..  C.  ('.  A., 
16T>  Fed.  193;  Virginia  Passenger  & 
Power  Co.  v.  Lane  F.ros.  Co..  C.  C. 
A..  174  Vf'\-  •"!•>'•  Spencer  v.  Taylor 
Creek  Ditch  Co..  C.  C.  A.,  J94  Fed. 
<i:!5;  Central  Trust  Co.  v.  Colorado 
Ky.,  Light  &  Power  Co..  200  Fed. 
85:  Carbon  Fuel  Co.  v.  Chicago,  C. 
t  L.  R.  Co..  C.  C.  A..  2Q2  Fed,  172. 
174. 

Fed.   Prae.  Vol.   I. — 61. 


19  Burnham  v.  Bowen.  Ill  U.  S. 
776,  782,  783,  28  L.  ed.  596,  598,  599. 
Where  the  parties  to  a  foreclosure 
suit  waived  a  sale,  and  entered  an 
order  by  consent  Leasing  the  prop- 
erty to  another  railroad  and  ap- 
pointing a  receiver  of  the  rent,  the 
court  directed  that  all  floating  un- 
secured creditors  should  be  paid  out 
of  the  rent  before  its  application  in 
discharge  of  the  claims  of  the  bond- 
holders, Farmers'  L.  &  Tr.  Co.  v. 
Mo..  1.  &   X.   Ely.  Co.,  21    Vvd.  264. 

20  Virginia  &  A.  Coal  Co.  v.  Cen- 
tral P.  1!.  &  B.  Co..  170  U.  S.  355, 
42  L.  ed.  L068;  Clark  v.  Centra!  R. 
K.  &  P..  Co.,  66  Fed.  803.  But  see 
Eelton  v.  Cincinnati.  C.  C.  A..  95 
Fed.  336;  Southern  Ky.  Co.  v.  Fn- 
sieji  Mfg.  Co.,  C.  c.  A..  117  Fed, 
+  17.  Such  claims  nrmy  also  l>e  giyen 
a  preferred  li"ii  upon  the  whole 
property  of  the  lessee  <>r  control- 
ling company.  Central  of  <Ja.  Ky. 
Co.  v.  Hitchcock,  C.  C.  A..  91  Fed. 
209;  Clyde  v.  Richmond  &  D.  R.  *  Q., 
5ii    Fed.  539; 


902 


KECEIVEKS. 


[§  305 


the  current  earnings  of  the  railroad  and  that  he  did  not  relv 
solely  upon  the  personal  credit  of  the  corporation  with  whom  he 
made  the  contract,21  and  that  the  debt  was  one  fairly  to  be  re- 
garded as  part  of  the  operating'  expenses  of  the  railroad,  in- 
current  receipts,22  and.  it  has  been  held,  that  it  was  incurred 
before  the  diversion.23  In  a  proper  case  the  disburse- 
ments or  liabilities  of  a  prior  receiver  appointed  at 
the  suit  of  a  stockholder  or  junior  incumbrancer  may 
be  thus  given  a  preference  when  they  were  essential 
to  the  maintenance  of  the  mortgaged  property.24  The 
mere  fact  that  money  loaned  to  the  mortgagor  was  expended  in 
]  laying  interest  upon  the  mortgage  bonds  and  operating  ex- 
penses so  as  to  enable  the  railway  company  to  maintain  itself 
as  a  going  concern  is  insufficient  to  entitle  the  lender  to  a  pref- 


erence.        In    accordance    with    these    principles    the    practice 
arose  in  the  Seventh  Circuit  to  impose  as  a  condition  upon  the 


21  Southern  Ry.  Co.  v.  Carnegie 
Steel  Co..  ]76  U.  S.  257.  290.  44  L: 
ed.  45S,  472:  Lackawanna  I.  &  C. 
Co.  v.  Farmers'  L.  &  Tr.  Co..  17(5  U. 
S.  298.  44  L.  ed.  475:  Virginia  & 
A.  Coal  Co.  v.  Central  R.  R.  &  B. 
Co..  170  U.  S.  355.  42  L.  ed.  1068. 
and  cases  cited:  Southern  Ry.  Co.  v. 
Ensign  Mfg.  Co.,  C.  C.  A..  117  Fed. 
417. 

22  Southern  Ry.  Co.  v.  Carnegie 
Steel  Co.,  170  V.  S.  257.  296;  44  L. 
ed.  458.  475:  Fordyee  v.  Kansas 
City  &  X.  Connecting  R.  Co..  145 
Fed.  5ti(i. 

23  Fordyee  v.  Omaha.  K.  C.  &  E. 
R.    R..    145    Fed.    544. 

2*Kneeland  v.  Bass  F.  &  M; 
Works.  140  U.  S.  592.  35  L.  ed. 
543:  Mltenberger  v.  Logarisjiort,  C. 
&  S.  W.  R.  Co..  106  1".  S.  2S0.  27 
L.  ed.  117;  Pennsylvania  Co.  for 
Insurance  v.  J.  T.  &  K.  YV.  Ry.  Co.. 
93  Fed.  60:  Reinhart  v.  Augusta 
M.  &  Inv.  Co..  94  Fed.  901  ;  Central 
of  Ca.  Ry.  Co.  v.  Hitchcock.  91  Fed. 
209:   .Ftna  Life  Ins.  Co.  v.  Leonard. 


C.  C.  A.,  186  Fed.  14S:  Finance  Co. 
of  Pennsylvania  v.  Trenton  &  X.  B. 
Ry.  Co..  189  Fed.  282.  Cf.  Central 
Appal lachian  Co.  v.  Buchanan,  C. 
C.  A..  90  Fed.  454.  Hut  see  Knee- 
land  v.  Am.  L.  &  Tr.  Co..  136  U.  8. 
89,  3.4  L.  ed.  379:  Am.  L.  &  Tr.  Co. 
v.  South  Atl.  &  O.  R.  Co..  81  Fed. 
62;  Ruhlender  v.  Ches..  O.  &  S.  W. 
R.  Co.,  91  Fed.  5:  Thomas  v.  Cin- 
cinnati. X.  O.  &  T.  P.  Ry.  Co..  91 
Fed.  202;  Haehnlen  v.  Drayton.  C. 
C.   A..   192   Fed.   300. 

25  Morgan's  La.  &  Tr.  R.  &  S. 
S.  Co.  v.  Texas  C.  Ry.  Co..  137  U. 
S.  171.  34  L.  ed.  625:  Contr.  &  B. 
Co.  v.  Continental  Tr.  Co..  C.  C.  A.. 
108  Fed.  1.  See  George  v.  St.  Louis- 
C  &  W.  Ry.  Co..  ^44  Fed.  117. 
Where  a  claim  to  a  preference  is 
made  because  money  was  loaned  the 
mortgagor  at  the  request  of  the 
bondholders,  a  request  made  by  alt 
the  bondholders  should  be  shown. 
Tn  re  Kelly  v.  Green  Bay  &  Minn. 
R.  Co..  5  Fed.  846 


§  305] 


PREFERENCES    IN     FORKC'l.osriiK     SUITS. 


963 


appointment  of  a  receiver  in  a  suit  for  the  foreclosure  of  a  rail- 
road mortgage,  that  debts  for  materials  and  supplies  and  labor 
furnished  to  the  mortgagor  within  the  six  previous  months  be 
paid  out  of  the  net  income  or  in  some  cases,  out  of  the  proceeds 
of  the  sale  of  the  road,  before  the  debt  secured  by  the  mortgage.86 


2G  In    re    Kelly    v.    Green    Bay    & 
Minn.  R.  Co..  5   fed.  846.    See  Un- 
ion  Tr.   Co.    v.    Souther,   107    U.   S. 
591,  593,  27   L.  ed.  488;   Union  Tr. 
€o.  v.  111.  Mid.  Ry.  Co.,  117  U.  S. 
434,    29    L.    ed.    903;    Blair    v.    St. 
Louis,    H.   &    K.    Ry.    Co.,    22    Fed. 
471,    474.       Preferences    have    thus 
heen  given  to  claims  for  fuel,  Burn- 
liam  v.  Bowen,  111   U.  S.  776.  28  L. 
ed.  596.;   Clark  v.  Central  of  Ga.  R. 
&    B.    Co..    C.    C.    A..    66    Fed.    803; 
Ya.  &  A.  Coal  Co.  v.  Central  of  Ga. 
R.  &   B.   Co..    170   U.    S.   355.   42   L. 
■ed.  1068;   City  Trust  Co.  v.  Sedalia 
Light  &  Traction  Co..  195  Fed.  845. 
See   High    on   Receivers,    (4th    ed.) 
§§  394a-394L,  locomotives  and  cars, 
Fosdick  v.  Schall.  99  U.  S.  235,  238, 
25  L.  ed.  339;    Fosdick   v.  Car  Co., 
■99  U.  S.  256.  25  L.  ed.  344;   Frank 
v.  Denver  &  R.  G.  Ry.  Co.,  23  Fed. 
123;   Union  Trust  Co.  of  New  York 
v.    Forty-Second    St.,    M.    &    St.    X. 
Ave.   Ry.    Co.,    179    Fed.    981.      But 
see    Continental    Tr.    Co.    v.    Toledo, 
St.  L.  &  K.  C.  R.  Co..  93   Fed.  532; 
McGoukey    v.    Toledo    &    O.   C.    Ry. 
Co..   146  TJ.  S.  536.  36  L.  ed.  1079; 
car    springs     a  nil    spirals.    Hale    v. 
Frost.  99  U.  S.  389,  25  L.  ed.  419: 
}(tkJcscrews,     Southern     Ry.     Co.     v. 
Chapman    Jack    Co..    117    Fed.    42 1 ; 
repairs.   Fosdick   v.   Schall,   99    C.   S. 
235.  23S.  25   L.  ed.   339;    Miltenber- 
ger   v.   Logansport    By.   Co..   106   U. 
$.    286,    311.    27    L.    ed,    117,    126: 
Guaranty  Trust  Co.  v.  New  York  v. 
Philadelphia  &  L.  V.  Traction  Co., 
160    Fed.    761;    raits,   Southern    Ry. 
Co.  v.  Carnegie  Steel  Co.,  176  U.  S. 


257,  44  L.  ed.    158;  money  advanced 
to  pay  taxes.  Farmers'  l>.  &  Tr.  Co. 
v.    Stuttgart   &    A.   R.   Co..   92    Fed. 
246;  U.  S.  Tr.  Co.  v.  Mercantile  Tr. 
Co.,  C.  C.  A.,  88  Fed.   140:   Atlantic 
Tr.  Co.  v.  Dana,  C.  C.  A.,  128  Fed. 
209.       The     annual     franchise     tax, 
which    accrued    subsequent     to    the 
receivership,  was  held   to  be  a   pre- 
ferred lien  so  long  as  the  corpora- 
tion   remained    undissolved.     Conk: 
lin  v.   U.  S.   Shipbuilding  Co..    148 
Fed.  129.     Contra,  Franklin  Tr.  Co. 
v.    State    of    New    Jersey.    C.    C.    A.. 
181    Fed.    769,   Putnam,   J.,   dissent- 
ing, where  it  was  imposed  by  a  for- 
eign   State,    in    which    it    was    domi- 
ciled but  did  not  transact  business. 
Atlantic  Tr.  Co.  v.  Dana,  C.   C.  A., 
128    Fed.    209.     Board    and    rations 
furnished  employees,  Finance  Co.  v. 
Charleston,  C.  &  C.  R.  Co.,  49  Fed. 
693:    Northern    Pac.    R.   Co.    v.    I.a- 
mont,  C.  C.  A.,  69  Fed.  23;   but  see 
Newgass  v.  Atlantic  &  D.   Ry.   Co., 
50  Fed.  676;   telegrams,  Newgass  v. 
Atlantic  &  D.  R.  Co..  72   Fed.  712: 
furniture,    care,    heat    and    light    of 
stations.    Northern    Pac.    R.    Co.    v. 
1. anion t.    C.    C.    A..    69    Fed.    23:    as 
to  electric  power,  see  Finance  Co.  of 
Pennsylvania    v.    Trenton    &    N.    1'.. 
Ry.  Co..  189  Fed.  282;   advertising, 
dueen    Anne's    Ferry    &    Equipment 
Co.    v.    Queen     Anne's     R.     Co..     lis 
Fed.   41  :   contra,  Central   Tr.  Co.   V- 
East    Tenn..    V.    &    G.    R.    Co..    C.    C. 
A..  80   Fed.  024.     Claims  for  prefer 
ences   for   car   rent   are   usually   dis- 
allowed.     Thomas    v.    Western    C-.w 
Co..    149    U.    S.    95.    37    L.   ed.    663; 


U(U 


RECEIVERS. 


[§  305 


Crand  Trunk  K\ .  Co.  v.  Central  Vt. 
R.  Co..  90  Fed.  163;  Pullman's  Pal- 
ace Car  Co.  v.  Am.  L.  '&  Tr.  Co.,  84 
Fed.  18:  Rodger  Ballast  Car  Co.  v. 
Omaha.  K.  C.  &  F.  R.  Co..  154  Fed. 
629,  WJ&ere  a  balance  is  due  upon 
the  purchase  price  of  cars  or  loco- 
motives delivered  to  the  railroad 
company  under  a  contract  of  condi- 
tional sale,  and  the  seller  reclaims 
them  or  the  receiver  rejects  them. 
a  claim  for  the  value  of  their  use 
or  for  the  injury  done  to  them 
while  in  the  possession  of  the  rail- 
road is  not  entitled  to  a  prefer- 
ence. Fosdick  v.  Sehall,  99  U.  S. 
235.  255.  25  L.  ed.  339,  343;  Huide- 
koper  v.  Loc.  Works,  99  U.  S.  258.. 
25  L.  ed.  344:  Knecland  v.  Am.  L. 
&  Tr.  Co..  336  U.  S.  89,  97,  34  L.  ed. 
379,  383.  If.  however,  the  receiver 
retains  them  with  the  assent  of  the 
seller,  the  balance  of  the  purchase- 
money,  or  at  least  the  reasonable 
value  of  their  use  by  the  receiver, 
may  be  a  preferred  claim  to  that 
of  a  prior  mortgagee  at  whose  suit 
the  receiver  was  appointed.  Knee- 
land  v.  Am.  L.  &  Tr.  Co..  130  U.  S. 
89.  103.  34  L.  ed.  379,  385;  Fosdick 
v.  Car  Co..  99  U.  S.  25:;,  25  L.  ed. 
344:  Fiank  v.  Denver  &  R.  G.  Ry. 
Co.,  23  Fed.  123.  But  not  the  val- 
ue of  their  use  by  a  former  receiver 
appointed  at  the  suit  of  a  judg- 
ment creditor  to  which  the  mort- 
gagee was  a  party.  Kneeland  v. 
Am.  L.  &  Tr.  Co..  13(5  U.  S.  S9, 
97.  34  L.  ed.  379  38:5.  But  see  Knee- 
land  v.  Bass  F.  &  M.  Works,  140 
U.  S.  592,  35  L.  ed.  543:  Milten- 
berger  v.  Logahsport,  C.  &  S.  W. 
R.  Co..  LQ6  C.  S.  28(1,  27  L.  ed.  117. 
And  where  the  value  of  the  pur- 
chase price  is  allowed  a  preference, 
it  is  inferior  to  the  claims  of  labor- 
ers for  services  rendered  immedi- 
ately before  the  appointment  of  the 


receiver  and  subsequently  to  the  de- 
livery of  the  rolling  stock  to  the 
company.  Frank  v.  Denver  &  R.  G. 
Ry.  Co..  23  Fed.  123.  A  claim  for  oil 
necessary  for  use  in  operating  a 
railroad,  furnished  before  a  default 
in  interest,  was  subordinated  to  the 
lien  of  the  mortgagees;  but  a  claim- 
ant for  oil  furnisbed  since  such  de- 
fault was  given  an  equitable  lien 
superior  to  the  mortgagees,  when 
the  claimant  had  accepted  a  prom- 
issory note  of  the  railroad  com- 
pany on  account  of  part  of  both 
classes  of  indebtedness;  which  note 
he  surrendered  to  the  receiver  up- 
on petitioning  for  the  payment  of 
his  claim.  Central  Tr.  Co.  v.  Texas 
&  St.  L.  Ry.  Co.,  23  Fed.  703.  It 
has  been  held  that,  in  the  absence 
of  a  .State  statute,  judgments 
against  a  railroad  company  for  per- 
sonal injuries  are  not  entitled  to  a 
preference  Farmers'  L.  &  Tr.  Co. 
v.  Northern  Pac.  R.  Co.,  C.  C.  A., 
79  Fed.  227;  Farmers'  L.  &  T.  Co. 
v.  Xestelle,  C.  C.  A..  79  Fed.  748; 
Veatch  v.  Am.  L.  &  Tr.  Co.,  C.  C. 
A.,  79  Fed.  471:  Front  St.  C.  Ry. 
Co.  v.  Drake,  84  Fed.  257 ;  Farmers' 
L.  &  T.  Tr.  Co.  v.  Longworth,  C.  C. 
A..  103  Fed.  330;  Hampton  v.  Nor- 
folk &  W.  Ry.  Co..  C.  C.  A..  127 
Fed.  602 ;  Central  Tr.  Co.  v.  War- 
ren, C.  C.  A.,  121  Fed.  323;  Atlan- 
tic Tr.  Co.  v.  Dana.  C.  C.  A..  128 
Fed.  209:  Atchison.  T.  &  S.  F.  Ry. 
Co.  v.  Osborn.  148  Fed.  00ti:  Penn- 
sylvania Steel  Co.  v.  N.  Y.  City 
Ry.  Co.,  S.  D.  N.  Y.,  105  Fed.  485. 
It  was  so  held  as  to  such  claims 
not  reduced  to  judgment  until  after 
the  receivership.  Veatch  v.  Am. 
L.  &  Tr.  Co.,  C.  C.  A..  79  Fed.  471  ; 
St.  Louis  Tr.  Co.  v.  Riley.  C.  C. 
A..  30  L.R.A.  456,  70  Fed.  32;  Far- 
mers- L.  &  Tr.  Co.  v.  Green  B.,  \W 
&   St.  P.  Ry.  Co.,  45  Fed.  004;   Fi- 


§305]  PREFERENCES    IX    FOKECLOSUEE    SUITS. 


-.».;: 


delity  Ins.  &  S.  I).  Co.  v.  Norfolk  & 
W.  Ry.  Co..  1]4  Fed.  389.  See  I  en 
tral  Tr.  Co.  v.  East  Tenn.,  V.  & 
G.  R.  Co.,  .30  Fed.  896.  Q&ktrk, 
Central  Tr.  Co.  v.  Texas  &  St.  L. 
Ry.  Co.,  22  Fed.  135:  Dow  v.  Mem- 
phis &  L.  R.  Co..  20  Fed.  2560;  266. 
207.  both  of  Caldwell.  ,1.  ISut  sue!. 
claims  have  been  allowed  a  prefer- 
ence out  of  income  that  accrued  in 
the  hands  of  a  receiver  before  the 
institution  of  a  foreclosure  suit,  al- 
though the  judgment  for  the  tort 
was  subsequently  obtained.  Yeatch 
v.  Am.  L.  &  Tr.  Co..  C.  C.  A..  84 
Fed.  274.  Upon  the  construction  of 
the  South  Carolina  statute,  see 
Southern  Ry.  Co.  v.  Bonkright.  C. 
C.  A..  30  L.R.A.  823,  70  Fed.  442; 
Phinzy  v.  Augusta  &  K.  R.  Co..  63 
Fed.  922:  Central  Trust  Co.  v. 
Madden,  C.  C.  A.,  70  Fed.  451  :  Cen- 
tral Tr.  Co.  v.  Charlotte.  C.  &  A.  R. 
Co..  65  Fed.  257;  State  v.  Port  R. 
&  A.  Ry.  Co.,  84  Fed.  67.  Upon 
that  of  the  North  Carolina  statute, 
see  Finance  Co.  v.  Charleston,  C.  & 
C.  Ry.  Co..  01  Fed.  369:  Fidelity  I. 
Tr.  &  S.  D.  Co.  v.  Norfolk  &  W.  R. 
C '....  90  Vod.  175;  s.  c.  114  Fed. 
389.  As  to  the  Iowa  statute.  Cen- 
tral Tr.  Co.  v.  Central  Towa  Ry. 
Co..  38  Fed.  889.  As  to  the  Ten- 
nessee statute.  Central  Tr.  Co.  v. 
Bast  Tenn..  V.  &  G.  Ry.  Co..  70  Fed. 
764.  As  to  the  Vermont  statute. 
Grand  T.  Ry.  Co.  v.  Central  Vt.  R. 
Co.,  91  Fed.  696.  Claims  for  dam- 
ages hi/  firr  to  adjoining  property 
caused  before  the  appointment  of 
the  receiver  have  been  denied  a 
preference.  In  re  Dexterville  M.  & 
B.  Co.  v.  Case.  4  Fed.  873:  Miles  v. 
Case,  14  Fed.  141  :  s.  c.  9  Hiss.  549. 
Contra,  Dow  v.  Memphis  &  L.  R. 
Co.,  20  Fed.  260.  266.  267.  Claim- 
for  the  value  of  a  right  of  vtfity,  in- 
cluding damages  to  easements,  even 


when  reduced  to  judgment,  are  <il 
Imnii  a  preference  which  i>  analo- 
gous to  a  vendor's  Men.     Mercantile 

Tr.  Co.  v.  Plttsburgft  &  \Y.  R.  < ',,.. 
29  Fed.  732;  Central  Tr.  Co.  v. 
Kenaen,  C.  C,  A..  DO  Fed.  B93;  Cen- 
tral Tr.  Co.  v.  Louisville  S  T.  Ry. 
Co..  81  Fed.  772:  Fordyce  \.  Kansas 
(  ii\  \  N.  Connecting  It.  Co..  145 
Fed.  566.  Of.  Wright  v.  Kentucky  & 
G.  K.  Ry.  (,,..  H7  U.  S.  72,  29  L. 
ed  821  :  Central  Tr.  Co.  v.  Wabash. 
St.  L.  &  I\  Ry.  Co..  32  Fed.  566. 
In  one  case  a  consolidated  m'oH 
gage  covered  lease-  of  branch  lines 
and  nearly  all  of  the  capital  stock 
of  the  lessor  companies,  with  a 
covenant  by  the  trustee  that  in  case 
of  default  it  would  take  possession 
of  the  mortgaged  property  and  then 
"operate  such  railroads  and  conduct 
the  business  .  .  .  and  receive 
al  tolls,  rents,  income  and  profits 
from  said  railroad  and  other  prop- 
erty, .  .  .  and  from  such  rents 
to  pay  all  expenses  of  taking  pos- 
session of  said  railroads  and  other 
property  and  operating  said  rail- 
roads and  conducting  said  business, 
and  all  taxes  due  upon  any 
of  the  mortgaged  property,  and  all 
amounts  due  for  interest  or  princi- 
pal of  any  of  the  bonds  or  other 
Obligations  of  the  railway  compa- 
ny seemed  by  mortgages  or  pledges 
prior  in  lien  to  this  mortgage:  and 
after  deducting  such  expenses  and 
payments  and  retaining  a  reason- 
able compensation  for  the  services 
of  the  trustee  in  connection  with 
the  making  of  said  entry  and  tak- 
ing possession  of  said  railroads  and 
other  property,  and  operating  the 
same,  and  conducting  the  said  luisi- 
riess,  to  apply  the  net  ineome  to  the 
payment  of  any  interest  previously 
due  or  becoming  due  during  Buch 
possession     on     bonds     secured     by 


966 


RECEIVERS. 


[§    305 


this  mortgage."  The  trustee  fur- 
ther covenanted  "to  cause  all  of 
the  railroads  and  other  property 
thus  secured  hy  this  mortgage,  in- 
cluding all  shares  of  capital  stock 
and  bonds  held  in  trust  under 
the  provisions  hereof,  to  be  sold 
as  one  property  at  public  auction," 
&c.  The  mortgagor  lessee  had  cov- 
enanted to  pay  interest  upon  the 
bonds  of  the  lessors  of  the  branch 
lines  as  rent.  The  earnings  of  the 
branch  line  were  insufficient  to  pay 
the  rent.  It  was  held  that  the  first 
•covenant  constituted  a  contract  by 
teh  amount  of  its  earnings  collect- 
sion  of  the  railroads  of  the  mort- 
gagor, either  directly  or  through  a 
reeciver,  to  pay  the  interest  on  the 
bonds  of  the  branch  roads,  as  ob- 
ligations of  the  mortgagor,  before 
the  net  income  was  applied  to  the 
payment  of  interest  on  the  bonds 
secured  by  the  consolidated  mort- 
gage; and  that  the  holders  of  these 
bonds  had  an  equity  upon  the  net 
earnings  of  the  entire  system  su- 
perior to  that  of  the  holders  of 
bonds  and  coupons  under  the  con- 
solidated mortgage.  Mercantile  Tr. 
Co.  v.  St.  Louis  &  S.  F.  Ry.  Co.,  71 
Fed.  601,  G08.  609.  s.  c,  as  Mercan- 
tile Tr.  Co.  v.  Farmer's  L.  &  Tr. 
Co.,  C.  C.  A.,  81  Fed.  254.  But  see 
Central  Tr.  Co.  v.  Wabash,  St.  L.  & 
P.  Ry.  Co.,  23  Fed.  863.  Coupons 
on  bonds  of  a  lessor,  due  for  rent 
when  a  receiver  of  the  lessee  was 
appointed,  were  denied  a  preference 
in  Central  Tr.  Co.  v.  Charlotte,  C. 
&  A.  R.  Co.,  65  Fed.  264.  See  St. 
Louis,  A.  &  T.  H.  R.  Co.  v.  Cleve- 
land, C.  &  C.  I.  Ry.  Co.,  125  U.  S. 
658,  31  L.  ed.  832.  Rent  of  a  termi- 
nal property  was  allowed  a  pref- 
erence in  Manhattan  Tr.  Co.  v. 
Sioux  City  &  N.  R.  Co.,  102  Fed. 
710.     Creditors  of  a  lessor  railroad 


were  given  an  equitable  lien  upon 
the  amount  of  its  earnings  collect- 
ed by  the  lessee.  Terre  Haute  & 
L.  R.  Co.  v.  Cox,  C.  C.  A.,  102  Fed. 
825.  Upon  the  foreclosure  of  a 
consolidated  mortgage,  the  court 
ordered  the  receivers  to  pay  inter- 
est upon  bonds  secured  by  mort- 
gage upon  a  vital  portion  of  the 
system  although  there  was  some 
doubt  whether  the  mortgage  fore- 
closed was  not  a  superior  lien.  Park 
v.  N.  Y.,  L.  E.  &  W.  R.  Co.,  64  Fed. 
190.  See  also  Lloyd  v.  dies.  O.  & 
S.  W.  R.  Co.,  65  Fed.  351.  It  was 
held  otherwise,  however,  in  the  case 
of  mortgages  upon  parts  of  the  con- 
solidated road  which  could  be  sep- 
arated from  the  rest  without  a 
serious  depreciation.  Cleveland,  C. 
&  S.  R.  Co.  v.  Knickerbocker  Tr. 
Co.,  64  Fed.  623.  Where  the  receiv- 
ers appointed  under  a  consolidated 
mortgage  had  paid  interest  on  pri- 
or divisional  mortgages,  taxes,  op- 
erating expenses,  debts  for  equip- 
ment, and  for  that  purpose  had  in- 
curred a  preferential  indebtedness, 
it  was  held:  that  the  consolidated 
mortgagee  could  not  in  the  subse- 
quent foreclosure  in  the  same  suit 
of  mortgagees  on  different  parts  of 
the  line  have  that  preferential  debt 
apportioned  between  its  own  and 
the  divisional  mortgages,  or  re- 
quire an  account  of  the  receipts 
and  disbursements  of  each  division 
before  the  extension  of  the  receiver- 
ship to  the  division  of  mortgages 
so  as  to  displace  in  its  favor  the 
liens  of  some  of  those  mortgages; 
but  that  these  debts  were  primarily 
a  charge  upon  the  interest  of  the 
consolidated  mortgagee.  N.  Y.  S. 
&  Tr.  Co.  v.  L.,  E.  &  St.  L.  Con.  R. 
Co.,  102  Fed.  382.  Under  State 
statutes  preferring  the  claim  of  per- 
sons   who    perform    labor    upon   the 


§  305] 


PREFERENCES    IN    FORECLOSURE    SUITS. 


967 


property,  the  services  of  a  civil  en- 
gineer who  superintended  the  con- 
struction, Central  Tr.  Co.  v.  Rich- 
mond X.  I.  &  Br.  Co.,  54  Fed.  723; 
and  of  a  managing  agent  and  a 
superintendent  of  trains,  who  occa- 
sionally ran  cars,  cleaned  cars,  re- 
paired tracks,  and  acted  as  "gener- 
al utility  man,"  were  held  to  he  in- 
cluded, Gilchrist  v.  Helena,  H.  S.  & 
S.  R.  Co.,  58  Fed.  708;  but  that  of 
a  man  who  had  charge  of  the  office 
and  receipts  and  entered  in  a  book 
the  time  of  the  workmen  as  handed 
in  to  him  was  not.  Ibid.  In  the 
following  cases  the  fees  of  attor- 
neys and  counsel  for  services  im- 
mediately before  the  receivership 
were  allowed  a  preference:  Finance 
Co.  v.  Charleston  C.  &  C.  Co.,  52 
Fed.  526;  Blair  v.  St.  Louis,  H.  & 
K.  Ry.  Co.,  23  Fed.  521  ;  Louisville, 
E.  &  St.  L.  R.  Co.  v.  Wilson,  138 
U.  S.  501,  34  L.  ed.  1023.  Fees  for 
the  services  of  attorneys  and  coun- 
sel have  been  disallowed  a  prefer- 
ence where  rendered  more  than  a 
year  (Blair  v.  St.  Louis,  H.  &  K. 
Ry.  Co.,  23  Fed.  521)  and  more 
than  two  years  before  the  receiver- 
ships although  the  services  had  in- 
creased the  value  of  the  property. 
Finance  Co.  v.  Charleston  C.  &  C. 
Co.,  52  Fed.  526.  Fees  for  services 
performed  partly  more  than  six 
months  before  the  receiverships, 
but  principally  within  that  time, 
were  allowed  a  preference  when 
they  had  increased  the  fund. 
Louisville.  E.  &  St.  L.  R.  Co.  v. 
Wilson,  138  U.  S.  501.  34  L.  ed. 
1023.  So  it  seems  would  he  serv- 
ices of  counsel  for  the  corporation 
in  preparing  bills  to  be  filed  by 
creditors,  under  which  were  ap- 
pointed original  and  ancillary  re- 
ceivers, and  for  advice  therewith 
connected,  although   he  did   riot   act 


as  attorney  of  record.  Linen  Thread 
Co.  v.  A.  Booth  &  Co.,  C.  C.  A.r 
102  Fed.  515.  When  the  order  of 
appointment  gives  a  preference  to 
"wages  of  employees,"  counsel  fees 
due  an  attorney  who  was  not  em- 
ployed as  general  counsel  are  not 
included.  Louisville.  K.  &  St.  L.  R 
Co.  v.  Wilson.  138  V.  S.  501.  34  L. 
ed.  1023.  But  see  Gurney  v.  At- 
lantic &  G.  W.  Ry.  Co..  58  X.  Y. 
358.  Attorneys  are  denied  prefer- 
ences for  -services  in  attempting  to- 
set  aside  the  appointment  of  a  re- 
ceiver that  had  previously  been 
made.  Barker  v.  Southern  Building 
&  Loan  Ass'n.,  181  Fed.  636;  for 
the  payment,  at  the  request  of  the 
president  of  the  company,  a  few 
weeks  before  its  default,  under  a 
promise  of  reimbursement  within 
a  few  months,  of  judgments  and 
other  claims  against  it  for  wages 
and  injuries  to  cattle.  Blair  v.  St. 
Louis.  H.  &  K.  Ry.  Co..  23  Fed. 
521  :  and  for  the  payment  as 
surety  upon  appeal  bonds  of  judg- 
ments against  the  railroad  upon 
claims  two  or  three  years  old.  al- 
though the  appeals  were  taken  a 
few  months  before  the  appoint- 
ment of  the  receiver,  and  the  pay- 
irient  made  after  the  appointment, 
Blair  v.  St.  Louis,  11.  &  K.  Ry.  Co.. 
23  Fed.  521:  Whiteley  «v.  Central 
If.  Co..  C.  C.  A..  31  L.R.A.  303.  76 
Fed.  74;  and  for  services  in  secur- 
ing a  preference  to  unsecured  cred- 
itors, Louisville,  E,  &  St.  1,.  R.  Co. 
v.  Wilson.  138  U.  S.  5(il.  34  L.  ed. 
1(123.  Preferences  haw  been  al- 
lowed to  sureties  upon  appeal  and 
replevin  bonds  given  on  behalf  of  a 
receiver.  Union  Tr.  Co.  v.  Nforrisori, 
125  U.  s.  591,  31  L.  ed.  825;  or  by 
a  mortgagee,  Jones  v.  Central  Tr 
Co.,  C  C.  A..  73  Fed.  56"8,  or,  it  has 
been  held,  bv  a  mortgagor,  in  order 


:h;s 


RECEIVERS. 


[§  305 


This    is   called    "the    six    months    rule." 27  Other    Circuits 

adopt    a    similar    practice.28      Three    months    is    not    an    un- 


to save  the  property.  City  Tr.  Co. 
v.  Sedalia  Light  &  Traction  Co., 
195  Fed.  84.5.  Contra,  Pennsylva- 
nia Steel  Co.  v.  New  York  City  Ry. 
Co.,  165  Fed.  485;  Central  Tr.  Co. 
of  New  York  v.  Third  Ave.  R.  Co., 
C.  C.  A..  180  Fed.  710.  Railroad 
mortgages  usually  provide  for  the 
payment,  prior  to  the  bonds,  of  the 
fees  and  expenses  of  the  trustee; 
but  where  the  inaction  of  the  trus- 
tee has  compelled  the  institution  of 
litigation  by  a  bondholder  or  other 
person  interested,  the  trustee's  coun- 
sel fees  may  be  disallowed.  So 
-when  the  services  were  unnecessary. 
Bound  v.  S.  C.  R.  Co.,  62  Fed.  536. 
When  on  account  of  the  inaction  of 
the  trustee  or  otherwise  a  necessary 
suit  was  instituted  by  a  bondhold- 
er or  other  beneficiary  to  preserve 
the  fund,  the  counsel  fees  of  the 
plaintiff  may  lie  allowel  a  prefer- 
ence. Cowdrey  v.  Galveston,  H.  & 
II.  It.  Co.,  93  C.  S.  352,  23  L.  ed. 
050:  Trustees  v.  Greenough,  105  U. 
S.  527.  26  L.  ed.  1157;  Centra]  R. 
&  B.  Co.  v.  Pettus,  113  U.  S.  116, 
28  L.  ed.  915:  infra.  §  421.  The 
counsel  fees  of  the  attorney  for  the 
mortgagor  cannot  be  awarded  a 
preference,  unless  the  mortgage  so 
provides.  Mercantile  Trust  Co.  v. 
Missouri  K.  &  T.  Ry.  Co..  41  Fed. 
8.  10;  Union  Loan  &  Trust  Co.  v. 
Southern  Cal  M.  R.  Co..  51  Fid. 
106.  Cf.  Mason  v.  Pewabic  Min. 
Co.,  C.  C.  A..  66  Fed  301.  Contra, 
Bound  v.  S.  C.  P.  Co..  43  Fed.  404. 
The  fees,  counsel  fees  and  other 
debts  of  a  receiver,  and  a  master 
appointed  in  a  former  suit  by 
shareholders  or  junior  incumbran- 
ceSj  may  he  allowed  a  preference. 
Pennsvlvania   Co.   v.  J.  T.  &   K.   W. 


Ry.  Co.,  93  Fed.  60:  Reinhart  v. 
Augusta.  M.  &  Inv.  Co.,  94  Fed. 
901.  Contra,  Am.  L.  &  Tr.  Co.  v. 
South  Atl.  &  O.  R.  Co.,  81  Fed. 
02.  A  preference  was  denied  to  so 
much  of  a  judgment  as  included 
costs  incurred  before  the  receiver- 
ship. Williams  v.  Groat,  73  Fed. 
59.  The  claim  of  a  secretary  for  a 
balance  of  salary  due  him  within 
the  prescribed  time  has  been  thus 
preferred.  Olyphant  v.  St.  Louis 
&  O.  S.  Co..  22  Fed.  179.  But  see 
Wells  v.  Southern  Min.  Ry.  Co.,  1 
Fed.  270;  Addison  v.  Lewis,  75  Ya. 
701,  712,  713;  Union  L.  &  T.  Co.  v. 
Southern  Cal.  M.  R.  Co.,  51  Fed. 
106.  Xo  case  as  yet  extends  the 
preference  to  the  salary  of  a  pres- 
ident. Xat.  Bank  of  Augusta  v. 
Carolina.  K.  &  W.  R.  Co.,  63  Fed. 
25;  Title  Ins.  &  Tr.  Co.  v.  Home 
Telephone  Co.,  200  Fed.  263.  A 
president  forfeits  any  right  he  may 
possess  to  such  a  preference  by  pub- 
lishing in  the  annual  report  a  state- 
ment that  liis  salary  has  been  paid. 
Addison  v.  Lewis.  75  Ya.  701,  713. 
A  contract  for  future  employment 
is  not  binding  on  the  receiver. 
Keeler  v.  Atchison,  T.  &  S.  F.  R. 
Co..  92  Fed.  545. 

27  In  re  Kelly  v.  Receiver  of  G. 
B.  &  M.  R.  Co..  5  Fed.  846,  851, 
note.  Title  Ins.  &  Tr.  Co.  v.  Home 
Telephone   Co..   200   Fed.   263. 

28  Atkins  v.  Petersburg  R.  Co.. 
3  Hughes,  307:  Blair  v.  St.  Louis, 
II.  &  K.  Ry.  Co..  22  Fed.  471,  474: 
Olyphant  v.  St.  Louis  O.  &  S.  Co., 
22  Ved.  179;  Taylor  v.  Phil'a.  &  R. 
R.  Co.,  7  Fed.  377:  Thomas  v.  Cin- 
cinnati. X.  O.  &  T.  P.  Ry.  Co.,  91 
Fed.  195:  Central  Tr.  Co.  v.  Fast- 
en! T.  &  G.  R.  Co.,  C.  C.  A..  SO  Fed. 


§    -305]  PREFERENCES     l.\     FORECLOSURE    SUITS. 


969 


common  limitation  of  time.29  Claims  due  eight,30  and  eleven8? 
months,  and  even  two  yaw*.32  before  the  receivership:  in  one 
case  claims  for  loans  to  the  amount  of  more  than  $3,000,000 
advanced  upon  collateral  for  operating  expenses  of  the  rail- 
road within  two  years  before  t  1m-  receivership;88  a  claim  for 
materials  furnished  three  year-  before  the  appointment,  for 
which  a  note  was  given  sixteen  months  before  the  receiver- 
ship; 34  and  in  one  case,  those  who  advanced  money,  after  a 
default  in  interest  two  years  before  the  receivership,  to  pay 
the  arrears  of  wages  due  striking  laborers,  under  a  promise 
from  the  president  of  the  mortgagor  that  they  would  he  repaid 
out  of  the  current  earnings  of  the  road,  have  been  given  a 
preference.35  And  by  Judge  Caldwell:  "The  debts  due  from  a 
railroad  company  for  ticket  and  freight  balances,  and  for  work. 
labor;  materials  and  machinery,  fixtures,  and  supplies  of  every 
kind  and  character  done,  performed  or  furnished  in  the  con- 
struction, extension,  repair,  equipment,  or  operation  of  said 
road  and  its  branches  in  the  State  of  Kansas,  and  liabilities 
incurred  by  said  company  in  the  transportation  of  freight  and 
passengers,  including  damage  to  person  or  property,  which  have 
accrued  since  the  execution  of  the  mortgage  set  out  in  the  hill 
of  complaint."  about  two  years  and  three  months  before  the 
receivership,"6    were   allowed    a    preference,      A    creditor    does 


624:  Gregg  v.  Metropolitan  Tr.  Co., 
197  T".  S.  is:?.  40  L.  ed.  717:  Re 
Metropolitan  Railway  Receivership, 
208  U.  S.  90.  52   L.  ed.  403. 

29  Fosdiek  v.  Schall,  00  U.  S.  23.1. 
238,  25  L.  ed.  330;  Tlale  v.  Frost, 
9  U.  S.  389,  2.3  L.  ed.  4 lit:  Milten- 
herger  v.  Lpgansport  Ry.  Co..  10(! 
t".  s.  -isii.  308,  27  L,  ed.  117.  12.'»: 
Virginia  &  A.  Coal  Co.  v.  Central 
R.  &  B.  Co..  170  tj.  S.  3.-).l.  360,  42 
L.  ed.  Kilts.  1072.  Hut  sec  Skiddy 
v.  Atlantic.  M.  &  <>.  R.  Co.,  3 
Hughes,  320. 

30  Skiddy  v.  Atlantic,  M.  &  ().  R. 
Co..  3  Hughes,  32n.  Contra,  Spen- 
cer v.  Taylor  Creek  Ditch  Co.,  C. 
C.    A..    104    Fe.l.    113.'). 

31  Burnham  v.  Rouen.  Ill  1".  R. 
770.  28  L.  ed.  596;  Southern  Ry.  Co. 


v.    Carnegie    Steel    Co;,    170    C.    8. 
2.17.  280.  44  L.  ed.  458-  471. 

32  Central  Tr.  Co.  v.  Wabash,  St. 
L.  &  P.  Ry.  Co..  30  Fe.l.  332,  334. 
per  Brewer,  T.:  Fanners*  1..  &  Tr. 
Co.  v.  Kansas  City.  W.  &  X.  R.  Co., 
S3  Fed.  1S2.  per  Caldwell.  .1.  See 
Atkins  v.  Petersburg  R.  i  >>..  3 
Hughes,  307.  I'.nt  see  Duncan  v. 
Mobile  &  (».  K.  Co..  2  Woods,  542,; 
Addison  v.  Lewis.  75  Va.  701,  713. 
714. 

33  |l, id. 

34  Hale   v. 
L.  ed.  419, 

35  Atkins 
Hughes,  307. 

36  Farmers-  I..  &  Tr.  Co.  v.  Kan- 
sas City,  W.  &  N.  R,  i  ....  r,:;  Fed. 
182,   1S4. 


Frost,  00  U.  S.  380.  25 
v.  Petersburg  R.  Co.,  :' 


970 


RECEIVERS. 


[§  30; 


not  lose  his  preference  by  taking  notes  of  the  railroad  company 
for  several  months ; 37  nor  by  renewing  the  notes  after  the  re- 
ceiver's appointment ; 38  nor  by  reducing  his  claim  to  judgment, 
even  though  the  judgment  is  entered  pending  the  receivership 
in  a  suit  begun  previously,39  but  it  was  held  that  he  waived  his 
preference- by  filing  under  the  State  statute  after  the  receiver's 
appointment  a  notice  of  a  mechanic's  lien.40  The  delivery  by 
the  mortgagor  of  a  voucher  for  the  "payment  of  the  claim  does 
not  give  the  owner  thereof  a  preference,  although  it  expended 
the  money  represented  by  the  voucher  for  charges  that  might 
have  been  preferred,41  nor  does  an  attachment  obtained  after 
a  mortgage  had  been  executed  but  before  the  bonds  thereunder 
had  been  issued ; 42  nor  recovery  of  a  judgment  after  a  receiver- 
ship.43 In  the  allowance  of  interest  upon  preferred  claims,  it 
has  been  held  that  the  decisions  of  the  State  court  need  not 
be  followed,  although  they  would  be  binding  in  actions  at 
common  law.44  It  seems  that  interest  will  be  allowed  when 
stipulated  for  in  the  contract;45  but  it  has  been  held  that  when 
it  is  not  stipulated  for  by  contract,  nor  expressly  authorized 
by  statute,  it  cannot  be  allowed  during  the  delay  necessary  for 
the  settlement  of  the  receivership.46    An  assignee  of  a  preferred 


37  Southern  Ry.  Co.  v.  Carnegie 
Steel  Co..  176  U.  S.  257,  286,  44 
L.  ed.  458.  471  ;  Burnham  v.  Bowen, 
111  U.  S.  776,  28  L.  ed.  596;  Cen- 
tral T.  R.  Co.  v,  Texas  &  St.  L.  Ry. 
Co..  23  Fed.  703.  Preferences  were 
refused  where  notes  were  originally 
taken  for  six  months,  with  the 
right  of  renewal  for  the  same  term, 
and  the  payment  had  been  extended 
for  more  than  rive  years,  Lackawan- 
na L.  &  C.  Co.  v.  Farmers'  L.  &  T. 
Co.,  176  U.  S.  298.  317,  44  L.  ed. 
475.  484;  and  where  the  notes  were 
endorsed  by  a  third  party  upon 
whose  credit  the  money  or  supplies 
were  advanced.  Continental  Tr. 
Co.  v.  Toledo.  St.  L.  &  K.  C.  R.  Co., 
93  Fed.  532. 

38  Burnham  v.  Bowen,  111  U.  S. 
776.  28  L.  ed.  596. 


39  Central  Tr.  Co.  v.  Clark,  C. 
C.  A..  81  Fed.  269. 

40  State  Trust  Co.  v.  Kansas 
City,  P.  &  G.  R.  Co.,  129  Fed.  455. 

41  First  Trust  &  Savings  Bank  v. 
Southern  Indiana  Ry.  Co..  195  Fed. 
330. 

42  Re  Sunflower  State  Refining 
Co..    183   Fed.    834. 

43  Mercantile  Tr.  Co.  v.  So.  State 
L.  &  Tr.  Co..  S6  Fed.  711;  Williams 
v.  Groat,  73  Fed.  59. 

44  Pennsylvania  Steel  Co.  v.  New 
York  City  Ry.  Co.,  C.  C.  A.,  19S 
Fed.   721,   778. 

45  Hitner  v.  Diamond  State  Steel 
Co.,  176  Fed.  384;  Tredegar  Co.  v. 
Seaboard  Air  Line  Ry.,  C.  C.  A..  183 
Fed.  289.  See  Pennsylvania  Steel 
Co.  v.  New  York  City  Ry.  Co.,  C. 
C.   A.,  198  Fed.  721. 

46Tredeyar    Co.    v.    Seaboard    Air 


§    305]  PREFERENCES    TX     FORE(5tOSUBE    SUITS. 


071 


claim  has  all  the  rights  of  his  assignor;*7  but  usually  a 
guarantor  who  pays  a  deht  has  no  more  right  to  ;i  preference 
than  the  original  creditor.48  A  purchaser  under  a  decree  which 
provides  for  the  payment  of  preferred  claims  cannot   contest 

their  right  to  a  preference;49  and  upon  their  payment  he  is  not 
entitled  to  be  subrogated  to  the  rights  of  the  claimants.6*' 
Where  payment  had  been  made  on  account  of  advances,  some 
of  which  were  entitled  fjo  a  preference  ami  some  not.  it  was  held 
that  in  the  absence  of  a  prior  application  by  the  parties,  the 
mortgagee  could  procure  their  application  upon  the  preferred 
claims.51  It  has  been  held  that  pending  a  receivership  in  a 
Federal  court,  where  parties  are  entitled  to  a  lien,  and  can 
secure  it  by  proceedings  under  a  State  statute,   they   are  not 


Line  Ry.,  C.  C.  A.,  183  Fed.  289. 
There,  the  receivership  was  prayed 
by  the  insolvent,  but  a  cross-hill 
asking  similar  relief  was  tiled  by  a 
trustee. 

47  Union  Tr.  Co.  v.  Walker,  ]()7 
U.  S.  596,  27  L.  ed.  490:  Burnham 
v.  Bowen,  111  U.  S.  776,  28  L.  ed. 
596;  Union  Tr.  Co.  v.  Southern 
Sawmills  &  Lumber  Co.,  C.  C.  A., 
166  Fed.  153.  Where,  before  the 
appointment  of  a  receiver,  a  bond- 
holder accepted  a  compromise  which 
scaled  clown  the  indebtedness;  in 
pursuance  thereof  surrendered  his 
bonds,  under  an  agreement  to  re- 
ceive in  exchange  new  bonds  se- 
cured by  a  subsequent  mortgage; 
and  did  receive  enough  to  replace 
the  greater  part  of  those  which  he 
surrendered :  but  there  were  a  few 
for  which  no  new  bonds  issued, — 
apparently  because  none  were  en- 
graved for  so  small  an  amount:  — 
it  was  held  that  his  unadjusted 
claim  for  this  balance  remained  se- 
cured by  the  old  mortgage,  and  was 
superior  to  those  under  tin  subse. 
quent  mortgage  given  to  secure  the 
new  bonds.  Blair  v.  St.  Louis.  11.  & 
K.  Rv.  Co..  23  Fed.  524.     But  where 


rails  had  been  sold  to  an  individual 
upon  his  own  credit  for  the  use  of 
the  railroad  by  its  lessee,  a  prefer- 
ence against  the  interest  of  the 
lessor  was  denied.  Rhulender  v. 
Ches..  0.  &  S.  W.  R.  Co.,  C.  C.  A.. 
91  Fed.  5.  For  a  case  where  it  was 
held  that  a  party  who  paid  a  pre- 
ferred claim  became  an  equitable 
assignee  of  the  preference,. see  Knee: 
land  v.  Luce.  141  I  .  S.  491,  35  L. 
ed.  830.  For  one  where  it  was  held 
that  he  did  not.  see  U.  S.  Tr.  t'o.  v. 
Western  c.  Co..  C.  C.  A.,  SI  I'.-d. 
454. 

48  Farmers*  L.  &  Tr.  d,.  v.  Stutt- 
gart &  A.  R.  Co..  92  Fed.  '_>lii: 
Blair  v.  St.  Louis,  II.  &  K.  Ry.  Co. 
('Norton^  Enterfcenbr)',  23  F«l.  523. 
But  sec  Union  Tr.  Co;  v.  Morrison. 
125  TJ.   S.   591.   31    L.  ed.   S25. 

49S\vann  v.  Wri-litV  KVr.  110 
U.  S.  590,  28  L.  ed.  252;  St.  Louis 
S.  YV.  Ry:  Co.  v.  Stark.  55  Fed'. 
758;  Infni.  §  394:  Lauglilin  v.  I  .  S. 
Rolling  Stock    Co..   64    Fed.    25. 

so  Morgan's  L.  &  T.  R.  &  S.  S. 
Co.  v.   Moran.   91    Fed.   22. 

si  Illinois    T.   <S    s.    Bank    \.    "t 
tumwa    El.    Ry.  <  «...   89    IVd.  235. 


972 


RECEIVERS. 


[§  305 


required  to  go  to  the  expense  of  such  proceedings,  but  the  Fed- 
eral court  will  act  as  though  all  needful  steps  had  been  taken 
to  establish  the  lien ; 52  and  that  "where  like  demands  are 
presented  from  other  States  in  which  no  statutory  lien  therefor 
exists,  they  shall  be  entitled  to  the  same  status,  so  that  statutory 
and  equitable  liens  may  rest  on  a  like  basis."53  The  right  to 
a  preference  may  be  lost  by  laches; 54  but  it  need  not  be  asserted 
when  the  claim  is  first  proved.55  Laches,  during  which  prefer- 
ential claims  have  arisen,  may  deprive  a  general  creditor  of  his 
right  to  compel  a  receiver  in  a  foreclosure  suit  to  surrender 
property  not  covered  by  the  mortgage.56  In  one  case,  a  preference 
was  denied,  when  a  majority  of  the  creditors  of  the  same  class 
had  waived  their  right  to  the  same.57  It  was  held  that  inter- 
vening petitions  filed  by  judgment  creditors,  after  the  appoint- 
ment of  a  receiver  under  a  creditor's  bill,  operated  as  equitable 
levies  and  created  equitable  liens  for  the  satisfaction  of  the 
same  out  of  the  income  and  property  of  the  corporation  from 
the  date  of  their  filing,  subject  to  prior  liens  and  superior 
equities;58  and  that  where  a  foreclosure  suit  had  been  begun, 
subject  to  the  appointment  of  such  receiver,  a  mortgagee  could 
properly  assert  its  right  to  possession  by  intervention  in  the 
receivership,  and  that  such  intervention  gave  it  a  prior  right 
to  the  income  earned  by  the  receiver  over  subsequent  interven- 
ing judgment  creditors,  whose  judgments  were  obtained  after 
the  receiver  was  appointed,  when  the  mortgage  covered  all 
the  defendant's  property  and  income,  although  the  existing 
receivership  had  not  been  formally  extended  for  the  benefit 
of   the   mortgagee  prior   to  the   judgment   creditor's    interven- 


52  Brewer.  J.,  in  Central  Tr.  Co. 
v.  Texas.  &  St.  L.  Ry.  Co..  23  Fed. 
673,  <)74.  U75:  Treat.  J.,  in  Blair 
v.  St.  Louis.  H.  &  K.  R.  Co..  19 
Fed.  Stil  :  Commonwealth  Roofing 
Co.  v.  North  Am.  Tr.  Co..  C.  C.  A.. 
135  Fed.  984.  But  see  Hassall  v. 
Wilcox,  130  U.  S.  493.  32  L.  ed. 
1001. 

53  Treat.  J.,  in  Blair  v.  St.  Louis, 
H.  &  K.  R.  Co.,  19  Fed.  861,  862. 

5*Lodkpbrt  Felt  Co.  v.  United 
Box   Board   &    Paper   Co..   189   Fed. 


7t>7  ;  First  Trust  &  Savings  Bank  v. 
Southern  Indiana  Ry.  Co.,  195  Fed. 
330,  where  a  sale   had  taken  place. 

55  Pennsylvania  Steel  Co.  v.  X.  Y. 
City  Ry.  Co.,   187   Fed.  287. 

56  State  Tr.  Co.  v.  Kansas  City, 
P.  &  G.  R.  Co..  120  Fed.  398. 

57  Empire  State  Surety  Co.  v. 
Carroll  County.  C.  C.  A.,  194  Fed. 
593. 

58  Atlanitc  Tr.  Co.  v.  Dana,  C.  C. 
A..    128   Fed.   209 


§    305]  PREFERENCES    IN    FORECLOSURE    SUITS.  973 

tion.59  A  claimant  to  a  preference  of  a  class  for  which  no 
provision  has  been  made  by  a  previous  order  or  decree  cannot 
regularly  apply  upon  a  motion,  but  he  should  plead  his  claim 
in  a  petition  for  an  intervention,60  or  perhaps  in  a  bill.81  It 
has  been  held  that  an  averment,  that  when  an  action  had 
occurred  the  railroad  was  being  operated  by  a  company  acting 
as  the  agent  of  the  bondholders,  was  a  conclusion  of  law  too 
vague  and  general  to  show  with  sufficient  certainty  that  it  was 
well  founded;62  that  an  averment,  upon  information  and  be- 
lief,  that  within  twelve  or  eighteen  months  before  the  complain- 
ant's bill  was  filed  there  had  been  a  diversion  of  a  gas  com- 
pany's earnings  to  the  payment  of  interest  on  its  mortgage 
bonds  and  for  the  improvement  of  the  plant,  which  failed  to 
allege  the  dates  or  amounts  of  such  diversion  or  that  they 
occurred  within  the  time  when  the  indebtedness  to  the  com- 
plainant arose,  was  insufficient  because  of  its  lack  of  cer- 
tainty;63 but  that,  where  the  pleader  avers  the  receipt  by  the 
receiver  of  earnings  properly  applicable  to  his  claim,  he  need 
not  allege  that  such  earnings  had  not  been  disbursed,  since 
such  fact,  if  it  existed,  was  a  matter  of  defense.64  The  attor- 
neys of  both  the  receiver  and  the  complainant  should  have 
notice  of  the  hearing  of  such  claim  before  a  master.65  An 
application  for  a  preference  may  be  denied  with  leave  to  renew 
until  other  claims  to  preferences  have  been  decided  and  the 
determination  of  litigation  which  may  increase  the  assets.66 
An  entry  upon  the  books  of  the  mortgagor  showing  the  claim 
to  be  good  is,  in  the  absence  of  suspicious  circumstances,  prima 
facie  proof.67  An  order  granting  a  preference  may  be  set 
aside  at  any  time  before  the  final  decree.68     The  consent   of 

59  Atlantic  Tr.  Co.  v.  Dana,  C.  C.  64  Veateh  v.  Am.  L.  &  T.  Co.,  C. 
A.,  128  Fed.  209.  C.  A.,  84  Fed.  274. 

60  Grand  Trunk  Ry.  Co.  v.  Cen-  65  Blair  v.  St.  Louis,  H.  &  K.  R. 
tral  Vt.  R.  Co.,  91  Fed.  5G1.  Co.,   19  Fed.  86],  862. 

61  Louisville  &  N.  R.  Co.  v.  Mem-  66  Pennsylvania  Steel  Co.  v.  New 
phis  G.  L.  Co.,  C.  C.  A.,  125  Fed.  York  City  Ry.  Co.,  182  Fed.  155. 
S7.  67  B]air  v.  St.   Louis,  II.  &  K.   R, 

62  Veateh  v.  Am.  L.  &  Tr.  Co.,  Co.,  19  Fed.  861,  862,  Treat,  J.;  s. 
C.  C.  A..  79  Fed.  471.  c,  22   Fed.  471,  472,  Brewer,  J. 

63  Louisville  &  X.  R.  Co.  v.  Mem-  68  Atchison  T.  &  S.  F.  Ry.  Co.  v. 
phis   Gas   Light  Co.,   C.   C.   A.,   125  Osborn,  C.  C.  A.,  148  Fed.  606. 
Fed.  97. 


974 


KECEIVERS. 


L§  soos 


the  receiver  cannot  prevent  any  creditor  who  is  a  party  to  the' 
record  from  taking  an  appeal  from  an  order  granting  a  pre- 
ference to  another.69  An  order  directing  a  receiver  to  carry  ont 
his  corporation's  contracts  does  not  necessarily  give  those  who 
claim  damages  for  a  breach  of  those  contracts  a  preference 
over  lien-holders.70  Where  a  receiver  was  appointed  bemuse 
the  taxes  upon  the  mortgaged  premises  were  unpaid,  there 
being  no  proof  then  of  any  other  danger  to  the  security  of  the 
mortgagee  and  the  mortgage  not  covering  the  rents ;  it  was  held 
that,  after  payment  of  snch  taxes  and  the  expense  of  the  re- 
ceivership, the  balance  of  the  rents  collected  by  him  must  be 
paid  to  the  owner  of  the  equity  of  redemption  although  a  fore- 
closure sale  had  meanwhile  taken  place  and  resulted  in  a  de- 
ficiency.71 Whether  this  doctrine  applies  to  the  foreclosure 
of  any  mortgage  except  those  made  by  railway,  telegraph,  or 
other  companies  to  which  are  delegated  the  right  of  eminent 
domain  or  which  are  egnaged  in  public  service,  is  very  doubt- 
ful.72 It  applies  to  a  mortgage  made  by  an  electric  light  com- 
pany.73    It  has  been  extended  to  a  receivership  of  a  mine.74 

§  306.  Property  over  which  receivers  may  be  appointed. 
A  receiver  may  be  appointed  to  preserve  and  take  possession  of 
every  kind  of  property,  whether  the  same  be  what  is  termed 
corporeal  or  incorporeal,  which  can  be  seized  by  execution  at 
law  or  which  constitutes  equitable  assets.1     Thus  receivers  have 


69  Empire  State  Surety  Co.  v. 
Carroll  County,  C.  C.  A.,  194  Fed. 
593. 

70  Olyphane  v.  St.  Louis  0.  &  S. 
Co.,  28  Fed.  729. 

71  So.  Building  &  L.  Ass'n  v. 
Carey,  C.  C.  A.,  Hi  Fed.  288. 

72  Wood  v.  Guarantee  Tr.  &  S.  D. 
Co.,  328  U.  S.  41G,  32  L.  ed.  472; 
Ralit  v.  Attrill.  100  N.  Y.  423,  60 
Am.  Rep.  456;  Reyburn  v.  Con- 
sumers' Gas,  F.  &  L.  Co.,  29  Fed. 
5G1 ;  Seventh  Nat.  Bank  v.'e  Shenan- 
doah Iron  Co.,  35  Fed.  436;  Fideli- 
ty I.  &  S.  D.  Co.  v.  Shenandoah 
Iron  Co.,  42  Fed.  372;  U.  S.  Invest- 
ing   Corporation    v.    Portland    Hos- 


pital,  40   Or.   523,    67    Fac.   194,   56 
L.R.A.    G27. 

73  Illinois  Tr.  &  Sav.  Bank  v.  Ot- 
tumwa    El.    Ry.    Co..    89    Fed.    235. 

74  Reinhart  v.  Augusta  M.  &  I. 
Co.,  91  Fed.  901.  But  see  Fidelity 
Ins.  &  Safe-Deposit  Co.  v.  Shenan- 
doah  Iron  Co.,  42  Fed.  372. 

§  30G.  l  Davis  v.  <0ay.  .16  Wall. 
203,  217.  21  L.  ed.  447.  452:  Davis 
v.  Duke  of  Marlborough.  2  Swanst. 
108.  127;  Blanchard  v.  Cawthorne,. 
4  Sim.  566.  See  Palmer  v.  Yaughan,. 
3  Swanst.  173;  Meriwether  v.  Gar- 
rett, 102  U.  S.  472,  501,  20  L.  ed. 
197,  200. 


§  306] 


PROPERTY  SUBJECT  TO  RECEIVERSHIPS. 


:>:.-> 


been  appointed  to  collect  and  hold  the  profits  of  a  rectory,2  of 
a  college  fellowship,3  of  a  patent  for  an  invention,4  of  the 
offices  of  a  master  forester  in  a  royal  forest,5  and  of  a  county 
clerk  of  peace;6  of  the  tolls  of  a  turnpike;7  to  manage  and 
collect  the  profits  of  mines,8  plantations,9  a  theatre,10  a  news- 
paper,11 a  hotel,12  a  ship,13  a  line  of  telegraph,14  a  wireless 
telegraph  system,141  and  a  railroad ;  15  to  exercise  the 
right  to  sell  a  conditional  right  of  membership  in  an 
exchange ; 16  to  exercise  options  to  buy  land ; 17  and  to 
take    possession    of    the    estate    of    an    intestate   'with    ppw- 


2  Silver  v.  Bishop  of  Norwich,  3 
Swanst.  112;  White  v.  Bishop  of 
Peterborough,  3  Swanst.  109. 

3  Feistel  v.  King's  College,  10 
Beav.   491. 

4  Parkhurst  v.  Kinsman.  2 
Blatchf.  78.     See  supra,  §  303. 

5  Blanchard  v.  Cawthorne,  4  Sim. 
3C6. 

6  Palmer  v.  Vaughan,  3  Swanst. 
173. 

7Knapp  v.  Williams,  4  Ves.  430, 
note;  Dumville  v.  Ashbrooke,  3 
Unss.   9S,   note. 

SJeffcrys  v.  Smith,  1  J.  &  W. 
298. 

9  Morris  v.  Elme,   1  Ves.  Jr.   139. 

10  Const  v.  Harris.  T.  &  R.  496, 
528. 

11  Chaplin  v.  Young,  6  L.  T.  (X. 
S.)  97;  Kelley  v.  Hutton,  17  W. 
R.   42.5. 

12Raht  v.  Attrill.  100  X.  Y.  423, 
00  Am.  Rep.  450;  Cater  v.  Wood- 
bury,  3   App.   D.   C.  00. 

13  Cronenwett  v.  Boston  &  A.  Tr. 
Co.,  95  Fed.  52.  In  this  case  the 
receiver,  who  had  been  appointed 
under  a  creditor's  bill  against  an 
insolvent  corporation,  was  directed 
to  distribute  the  insurance  money 
after  the  vessel's  loss  in  accordance 
with  the  priorities  that  would  be 
recognized  by  a  court  of  admiralty. 

14  United  L.  Tel.  Co.  v.  Boston 
S.  D.  &  T.  Co.,  147  U.  S.  431,  37 
L.  ed.  231. 


14a  Williams  v.  United  Wireless 
Tel.  Co.,  N.  Y.  Sup.  Ct.  June  20th, 
1911,  Cohalan,  J.,  in  which  the  au- 
thor was   counsel. 

15  Stevens  v.  Davison,  18  Gf'rat. 
(Va.)  819,  98  Am.  Dec.  692;  Davis 
v.  Gray,  16  Wall.  203;  21  h.  ed. 
447;  Barton  v.  Barbour,  104  U.  S. 
120.  26  L.  ed.  672;  infra.  §  308. 
Before  the  passage  of  a  statute  al- 
lowing it  to  be  done,  the  English 
court  held  that  a  receiver  could 
not  be  appointed  to  manage  a  rail- 
road, Gardner  v.  London,  C.  &  D. 
Ry.  Co.,  L.  R.  2  Ch.  App.  201  ;  but 
such  an  appointment  is  authorized 
without  statutory  authority  in  this 
country,  and  even  in  England  a  re- 
ceiver might  always  be  appointed 
to  receive  the  tolls  of  a  railroad. 
Hopkins  v.  W.  &  B.  C.  Co..  L.  R. 
6  Eq.  437;  Jones  on  Railroad  Se- 
curities, §  456.  A  lugubrious  pic- 
ture of  the  result  of  such  appoint- 
ments was  drawn  by  Miller.  J.,  in 
Barton  v.  Barbour,  104  U.  S.  120. 
137,  13S.  See  also  the  language  of 
the  GoVernor  of  Texas  quoted  in 
Mercantile  Tr.  Co.  v.  Texas  &  P. 
Ry.  Co.,  51   Fed.  529.  533.  537. 

16  Powell  v.  Waldron,  89  X.  Y. 
328;  In  re  Ketchum,  1  Fed.  840: 
Tn  re  Werder,  15  Fed.  789;  Hyde 
v.  Woods,  04  U.  S.  523.  24  T-.  ed. 
264;    Piatt   v.  .Jones.  96  X.   Y.  24. 

"Twin  City  Power  Co.  v.  Bar- 
rett, C.  C.  A..    120  Fed.  302. 


976 


RECEIVERS. 


[§    306 


er  to  apply  for  letters  of  administration.18  After  the  repeal 
of  the  charter  of  the  city  of  Memphis,  a  receiver  was  appointed 
to  take  possession  of  all  its  property  which  conld  be  subjected 
to  the  payment  of  its  debts.19  But  the  Supreme  Court  refused 
to  direct  such  a  receiver  to  levy  taxes,20  or  to  collect  those  al- 
ready levied.21  Where  an  order  appointing  a  receiver  of  a 
railroad  company  directed  that  "all  the  books,  vouchers  and 
papers  touching  the  operation  of  the  railroad,"  and  "all  and 
every  part  of  the  properties,  interest,  effects,  moneys,  receipts, 
earnings"  of  the  railroad,  should  be  delivered  to  the  receiver, 
it  was"  held,  that  the  order  included  the  company's  seal  and 
all  records  of  its  past  transactions  and  books  relating  to  its 
previous  history.22     A  receiver  of  a  corporation  is  entitled  to 


18  Re  Mayer,  L.  P.  3  P.  &  D.  39. 

19  Meriwether   v.   Garrett,   102   U. 
S.  472,  26  L.  ed.  197. 

20  "l.  Property  held  for  public 
uses,  such  as  public  buildings, 
streets,  squares,  parks,  promenades, 
wharves,  landing-places,  fire-en- 
gines, hose  and  hose-carriages,  en- 
gine-houses, engineering  instru- 
ments, and  generally  everything 
held  for  governmental  purposes, 
cannot  be  subjected  to  the  payment 
of  the  debts  of  the  city.  Its  public 
character  forbids  such  an  appropri- 
ation. Upon  the  repeal  of  the  char- 
ter of  the  city,  such  property  passed 
under  the  immediate  control  of  the 
State,  the  power  once  delegated  to 
the  city  in  that  behalf  having  been 
withdrawn.  2.  The  private  proper- 
ty of  individuals  within  the  limits 
of  the  territory  of  the  city  cannot 
be  subjected  to  the  payment  of  the 
debts  of  the  city,  except  through 
taxation.  The  doctrine  of  some  of 
the  States,  that  such  property  can 
be  reached  directly  on  execution 
against  the  municipality,  has  not 
been  generally  accepted.  3.  The 
power  of  taxation  is  legislative,  and 
cannot  be  exercised  otherwise  than 
under  the  authority  of  the  legisla- 


ture. 4.  Taxes  levied  according  to 
law  before  the  repeal  of  the  char- 
ter, other  than  such  as  were  levied 
in  obedience  to  the  special  require- 
ment of  contracts  entered  into  un- 
der the  authority  of  law,  and  such 
as  were  levied  under  judicial  direc- 
tion for  the  payment  of  judgments 
recovered  against  the  city,  cannot 
be  collected  through  the  instrumen- 
tality of  a  court  of  chancer}7  at  the 
instance  of  creditors  of  the  city. 
Such  taxes  can  only  be  collected 
under  authority  from  the  legisla- 
ture. If  no  such  authority  exists, 
the  remedy  is  by  appeal  to  the 
legislature,  which  alone  can  grant 
relief."  Chief  Justice  Waite  in 
Merriwether  v.  Garrett,  102  U.  S. 
472,  501,  2G  L.  ed.  197,  200.  Upon 
the  fust  three  propositions  the 
court  was  unanimous.  The  fourth 
was  decided  by  a  majority  only. 
See  a  criticism  of  this  case  by  Judge 
Baxter,  in  Garrett  v.  Memphis,  5 
Fed.  S60. 

21  Thompson  v.  Allen  County,  115 
U.   S.  550,  558,  29  L.  ed.  472,  475. 

22  American  Const.  Co.  v.  Jack- 
sonville, T.  &  K.  W.  Ry.  Co.,  52 
Fed    937. 


30G] 


PROPERTY  SUBJECT  TO  RECEIVERS  HITS. 


977 


remittances  by  its  officers  to  its  general  account  received  by 
a  bank  subsequent  to  his  appointment  and  the  bank  can  assert 
no  lien  against  the  same.23  The  receiver  appointed  in  a  suit 
to  foreclose  a  railway  mortgage  has  no  right  to  collect  or  retain 
moneys  earned  by  the  railroad  before  his  appointment,  although 
paid  subsequently  to  such  appointment;  where  the  mortgage 
contains  a  clause  allowing  the  mortgagor  to  remain  in  posses 
sion  and  collect  and  use  its  revenues  before  default,  and  the 
receiver  does  not  represent  judgment  creditors.24  A  court  has 
power  to  appoint  a  receiver  of  the  property  of  a  foreign  corpo- 
ration within  the  State.25  Where  obedience  to  its  decree  can 
be  compelled  by  process  against  the  person  of  a  defendant,  it 
seems  that  a  court  of  equity  may  appoint  a  receiver  of  prop- 
erty, real  or  personal,  situated  beyond  its  territorial  juris- 
diction.26 The  Judicial  Code  provides.27  "Where  in  any 
suit  in  which  a  receiver  shall  be  appointed  the  land  or  other 
property  of  a  fixed  character,  the  subject  of  the  suit,  lies 
within  different  States  in  the  same  judicial  circuit,  the  receiver 
so  appointed  shall,  upon  giving  bond  as  required  by  the  court, 
immediately  be  vested  with  full  jurisdiction  and  control  over 
all  the  property,  the  subject  of  the  suit,  lying  or  being  within 
such  circuit ;  subject,  however,  to  the  disapproval  of  such  order, 
within  thirty  days  thereafter,  by  the  circuit  court  of  appeals 
for  such  circuit,  or  by  a  circuit  judge  thereof,  after  reasonable 
notice  to  adverse  parties  and  an  opportunity  to  be  heard  upon 
the  motion  for  such  disapproval ;  and  subject,  also,  to  the  filing 


23  Horn  v.  Pore  Marquette  R.  Co., 

151   Fed.  026.  (127. 

24  Hook  v.  Bosworth,  64  Fed.  44.1, 
449. 

25  De  Bemer  v.  Drew.  57  Barb. 
43S;  Murray  v.  Vanderbilt,  3!) 
Barb.  140;  Barclay  v.  Quicksilver 
Min.  Co.,  9  Abb.  Pr.,  X.  S.,  283. 
See,  also,  s.  c,  0  Fans.  25;  Red- 
mond v.  Hope,  3  Hun  (N.  Y.)  171; 
Popper  v.  Supreme  Council.  Gl  App. 
DiV.  (X.  Y.)  -405;  Rousens  v.  Manu- 
facturing &  Selling  Co.,  99  App. 
DiV.    (X.  Y.)   214. 

26  Memphis    Sav.    Bank    v.    Hou- 
chens,  C.  C.  A.,  115  Fed.  90:   Stew- 
Fed.  Prac.  Vol.  I.— 62. 


art  v.  Laberee,  C.  C.  A.,  185  Fed. 
471.  The  English  Court  of  Chan- 
cery has  appointed  receivers  of 
property  in  India,  Logan  v.  Prince 
of  Coorg,  Seton  on  Decrees,  5th  ed., 
681;  Keys  v.  Keys,  1  Beav,  425; 
China,  Houlditcli  v.  Donegal,  8 
Bligh  X.  S.  301;  Italy.  Hinton  v. 
Calli,  24  L.  J.  Ch.  121:  New  South 
Wales,  I'nderwood  v.  Frost,  Seton 
on  Decrees,  5th  ed.,  081  ;  Canada, 
Tyler  v.  Tyler,  Si1! on  on  Decrees, 
5th  ed.,  682:    the   West    Indies.    Bim- 

burv  v.  Bunbury,  1    Men  v.   318.  331. 
27  ,|,„1.    (ode.  |    36,    30    St.    at      I.. 

10S7. 


078 


RECEIVERS. 


[§  307 


and  entering  in  the  district  court  for  each  district  of  the  cir- 
cuit in  which  any  portion  of  the  property  may  lie  or  be,  with- 
in ten  days  thereafter,  of  a  duly  certified  copy  of  the  bill  and 
of  the  order  of  appointment.  The  disapproval  of  such  appoint- 
ment within  such  thirty  days,  or  the  failure  to  file  such  certi- 
fied copy  of  the  bill  and  order  of  appointment  within  ten  days, 
as  herein  required,  shall  divest  such  receiver  of  jurisdiction 
over  all  such  property  except  that  portion  thereof  lying  or  being 
within  the  State  in  which  the  suit  is  brought.  In  any  case 
coming  within  the  provisions  of  this  section,  in  which  a  receiver 
shall  be  appointed,  process  may  issue  and  be  executed  within 
any  district  of  the  circuit  in  the  same  manner  and  to  the  same 
extent  as  if  the  property  were  wholly  within  the  same  district; 
but  orders  affect ing  >uch  property  shall  be  entered  of  record  in 
each  district  in  which  the  property  affected  may  lie  or  be." 
Otherwise,  in  the  absence  of  a  statute  vesting  the  assets  of  the 
corporation  in  him,  it  is  doubtful  whether  a  receiver  appointed 
by  a  court  of  the  defendant's  domicile  has  any  power  over  assets 
in  another  State.28 

§  307.  Powers  of  receivers  in  general.  The  powers  of 
a  receiver,  in  the  absence  of  any  special  authority  given  in 
the  order  for  his  appointment,  are  very  limited.  He  can  take 
possession  of  the  property  which  he  is  appointed  to  receiye.1 
If  any  of  it  is  land  under  lease,  he  can  accept  attornment  and 
payment  of  rent  and  arrears  of  rent  from  the  tenants.2  He 
can  give  notice  to  quit  to  tenants  from  jenr  to  year;3  and  in 
States  where  the  remedy  by  distress  still  exists,  he  may  distrain 
for  rents  not  more  than  one  year  in  arrear.4  He  may  also  pay 
out  small  sums  of  money  in  customary  repairs  of  the  property 
which  he  holds  in  trust.5  and  insure  it  against  fire.6     Beyond 


28Keatlev  v.  Furey.  226  U,  S. 
30!).  403,  404,  57  L.  ed.  — :  Chip- 
nian  v.  Manufacturers'  Nat.  Bank, 
l.-.i;  Mass.  147.    14S.   149. 

§  307.  iDaniell's  Cli.  Pr.  (2d 
Am.  ed.)    1987,   1988. 

2  Codrington  v.  Johnstone,  1 
Beav.  520;  McDonnell  v.  White,  11 
H.   L.  C.  570. 

3  Doe  v.   Keed,  12  East,  57,  59. 

4  Pitt    v.    Snovvden.    3    Atk.    750: 


Brandon  v.  Brandon,  5  Madd.  473; 
Davis  v.  Gray,  16  Wall.  203,  218, 
21  L.  ed.  447.  452. 

5  Atty.  Gen.  v.  Vigor,  11  Ves. 
563;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1990. 

6  Thompson  v.  Phoenix  Ins.  Co., 
136  U.  S.  287,  293,  294,  34  L.  ed. 
408,  411.  412:  Brown  v.  Hazlehurst, 
54  Md.  26,  28 


§  307] 


POWERS    OF    RECEIVERS. 


970 


this,  he  can  do  nothing  without  express  authority  of  the  court.7 
He  cannot  sue  to  recover  dehts  or  other  property  belonging  to 
the  estate,8  nor  even,  it  seem-,  defend  suits  or  actions  broughl 
against  him,9  nor  spend  any  money  whatever  which  belongs 
to  the  estate,  except  such  very  small  sums  as  are  above  referred 
to,10  without  an  order  authorizing  him  to  do  so.  made  at  or  sub- 
sequent to  his  appointment.  If,  however,  he  does  any 
of  these  things  without  leave  and  the  ('oiui  determines 
that  the  money  thus  expended  has  been  beneficial  to 
the  estate,  his  expenditures  for  that  purpose  may  be  allowed 
him.11  Otherwise,  he  must  make  good  all  Loss  thereby 
occasioned.12  It  seems  that  an  unauthorized  contract  made  by 
him  with  a  stranger  may  be  ratified  by  an  order  of  the  court 
made  before  the  stranger  has  given  notice  of  his  intention  to 
abandon  it.13  A  lire  insurance  company  which  has  received  a 
premium  from  a  receiver  cannot  in  an  action  on  the  policy  dis- 
pute his  authority  to  insure  the  property;14  hut.  it  has 
been  held  that  the  holder  of  a  note  assigned  to  him  by  receiver- 
after  it  was  due,  could  not  recover  its  amount  unless  he  proved 
that  the  court  had  authorized  the  assignment.15  Tt  seems  that 
an  order  giving  a  receiver  authority  to  sell  carries  with  it  au- 
thority to  execute  and  deliver  to  the  purchaser  a  deed;16  hut 
if  not,  a  subsequent  confirmation  by  the  court  of  a  sale  irregu- 
larly made  validates  from  that  time  a  deed  previously  executed 
by  the  receiver.17     It  has  been  said  :  that  "a  purchaser  under  a 


7  Davis  v.  Gray.  10  Wall.  203, 
218.  21  L.  ed.  447.  452;  Smith  v. 
McCuIlough,  104  U.  S.  25,  29,  26 
L.  ed.  637.  639. 

8  Wynne  v.  Lord  Newborbiigh,  1 
Yes.  Jr.  164:  s.  c..  Brown.  Cli.  ('. 
88:  Gfeeil  v.  Winter.  1  J.  Ch.  I  X. 
Y.)    60. 

9  Swaby  v.    Dickon.   5   Sim.   620. 
io  Atty.    Gen.    v.    Vigor,    11    Ves. 

563. 

11  Tempest  v.  Ord.  2  Meriv.  55; 
Blant  v.  Clitlierow.  6  Yes.  799 : 
Thompson  v.  Phoenix  Ins.  Co..  136 
U.  S.  287,  2!I4.  34  L.  ed.  408    412. 

12  Atty.  Gen.  v.  Vigor,  11  Ves. 
563. 


13  Koontz  v.  Northern  Bank,  16 
Wall.  196,  21  L.  ed.  465:  Smith  v. 
McCuilough,  104  C.  S.  25.  2D.  26 
L.  ed.  637,  639.  Cp  Girard  D  A. 
&   Tr.  Co.   v.   Cooper.   51    Fed.   332. 

14  Thompson    v.    Phoenix    Ins.    (  o., 
136   U.   S.   287,   294,   295,   34    L.   ed 
408,  412. 

15  The  Clara  A.  MJntyre.  04  Fed. 
552. 

16  Koontz  v.  Northern  Hank.  16 
Wall.   196,  2(H.  21   L.  ed.  465,,  468. 

17  Koontz  v.  Northern  Bank.  16 
Wall.    I!  (i.  21    L.  ed.  465. 


980 


RECEIVERS. 


[§    307 


deed  from  a  receiver  is  not  bound  to  examine  all  the  pro- 
ceedings in  the  case  in  which  the  receiver  is  appointed.  It  is 
sufficient  for  him  to  see  that  there  is  a  suit  in  equity,  or  was 
one,  in  which  the  court  appointed  a  receiver  of  property;  that 
such  receiver  was  authorized  by  the  courts  to  sell  the  property; 
that  a  sale  was  made  under  such  authority,  that  the  sale  was 
confirmed  by  the  court ;  and  that  the  deed  accurately  recites  the 
property  or  interest  thus  sold.  If  the  title  of  the  property 
was  vested  in  the  receiver  by  an  order  o  fthe  court,  it  would 
in  that  case  pass  to  the  purchaser.  lie  is  not  bound  to  inquire 
whether  any  errors  intervened  in  the  action  of  the  court,  or 
irregularities  were  committed  by  the  receiver  in  the  sale,  anv 
more  than  a  purchaser  under  execution  upon  a  judgment  is 
bound  to  look  into  the  errors  and  irregularities  of  a  court  on 
the  trial  of  the  case,  or  of  the  officer  in  enforcing  its  process."  18 
The  court  may  authorize  a  receiver  to  complete  the  comstruc- 
tion  of  a  railroad,19  or  other  public  work,20  under  a  contract 
with  the  person  over  whose  estate  he  was  appointed,  and  to  con- 
tinue for  a  limited  time  the  defendant's  business.21  He  may  be 
authorized  to  borrow  money  and  to  issue  as  security  receiver's 
certificates  for  that  purpose.22  An  order  authorizing  a  receiver 
to  make  a  contract  is  construed  strictly  in  favor  of  the  estate.23 


18  Mr.  Justice  Field  in  Koontz  v. 
Northern  Bank.  10  Wall.  196,  202.. 
21  L.  ed.  405.  468. 

19  Smith  v.  McCullough,  104  U. 
S.  2.->,  29,  26  L.  ed.  637.  639;  La 
Crosse  Railroad  Bridge.  2  Dillon. 
463. 

20  Patterson  v.  Patterson,  1 S2 
Fed.  052.  The  receiver  of  a  water 
company  may  be  authorized  to  in- 
crease his  charges  for  water  when 
they  are  not  limited  by  statute  or 
ordinance.  C.  H.  Venner  Co.  v.  Ur- 
bana  Waterworks.  174  Fed.  348 
When  he  furnished  water  to  a  city 
for  the  use  of  the  fire  department, 
without  a  contract  as  to  the  price, 
it  was  held  that  he  should  be  paid 
a  fair  compensation  for  the  service, 
a  just  proportion  of  the  operating 
expenses,  taxes  and  costs  of  admin- 


istration, and  of  a  just  and  reason- 
able return  on  the  cost  of  repro- 
ducing the  plant  and  its  growing 
value.     Ibid. 

21  Gay  v.  Hudson  Paver  E!.  Power 
Co.,  173  Fed.  1003.  Where  author- 
ity was  given  to  contract  to  sup- 
ply electrical  power  for  a  term  of 
five  years.  An  order  directing  the 
receiver  of  a  hotel  to  carry  on  and 
manage  the  business  of  the  hotel  as 
previously  carried  on,  was  held  to 
authorize  him  to  incur  the  custom- 
ary debts  in  carrying  on  that  busi- 
ness. Cate  v.  Woodbury,  3  App. 
D.  C.  60;  s.  c.  Cake  v.  Mohun,  164 
V.  S.  311.  41    L.  ed.  447. 

22  Kennedy  v.  St.  Paul  &  P.  Ry. 
Co.,  2  Dillon.  448. 

23  Farmers'  L.  &  T.  R.  Co.  v.  Xo- 


§  307] 


POWEKS    OF    RECEIVERS. 


981 


After  the  execution  of  a  contract  has  been  authorized  by  the 
court,  the  order  will  not  ordinarily  be  revoked  except  in  case 
of  fraud.24  A  receiver  cannot  accomplish  by  estoppel  or  waiver 
what  he  has  no  power  to  do  directly.86  Without  authority  from 
the  court  a  receiver  cannot  by  receipt  of  rent  or  otherwise  bind 
the  parties  or  a  subsequent  purchaser  to  recognize  a  lease26 
The  court  may,  however,  either  in  the  original  order  of  appoint- 
ment or  subsequently,  give  a  receiver  very  extensive  powers. 
It  is  usual  in  the  order  appointing  a  receiver  to  give  him  power 
to  bring  and  defend  suits  or  actions  affecting  the  estate.  Other 
and  much  more  extensive  authority,  such  as  to  borrow  money 
needed  for  the  proper  administration  of  his  trust,  and  issue  as 
security  therefor  certificates  giving  their  owner  a  first  lien 
upon  the  estate ; 27  to  contract  for  the  construction  of  a  bridge  ; 28 
to  levy  an  assesment  upon  stockholders;29  to  pay  a  faithful  ami 
deserving  employee  his  wages  during  the  time  that  he  is  kept 
from  work  by  the  result  of  an  injury  received  while  at  work 
for  the  receiver,  without  contributory  negligence,  but  for  which 
the  receiver  is  not  responsible;30  and  in  Ireland,  to  spend 
money  in  relieving  and  giving  employment  to  poor  tenants,  for 
the  reason  that  they  may  be  enabled  in  the  future  to  pay  their 
rent  more  regularly.31  have  been  given  to  receivers.  The  order 
appointing  a   receiver  of  land  usually   contains   a   clause   em- 


gansport,  C.  &  S.  W.  Ry.  Co.,  4  Fed. 
184. 

24  Wabash,  St.  L.  &  P.  Ry.  Co. 
v.  Central  Trust  Co..  22  Fed.  260. 
But  see  Weeks  v.  Weeks.  106  N. 
Y.  620. 

25  Van  Dyck  v.  McQuade,  85  N. 
Y.  616;  Farmers'  L.  &  Tr.  Co.  v. 
Chicago  &  A.  Ry.  Co.,  44  Fed.  653, 
659.  But  see  Central  Tr.  Co.  v. 
Ohio  Central  R.  Co.,  23  Fed.  306; 
Armstrong  v.  Armstrong,  L.  R.  12 
Eq.  614;  Koontz  v.  Northern  Bank, 
16  Wall.  196.  21  L.  ed.  465;  Stan- 
ton v.  Ala.  &  C.  R.  Co.,  31   Fed.  585. 

26  Farmers'  L.  &  Tr.  Co.  v.  Chi- 
cago &  A.  Ry.  Co.,  44  Fed.  653,  659. 

27  Wallace  v.  Loomis,  97  U.  S. 
146,    24    L.    ed.    895;    infra,    §    309. 


An  order  authorizing  a  receiver  to 
borrow  money  to  expend  in  building 
an  unfinished  portion  of  a  railroad 
does  not  authorize  him  to  contract 
for  municipal  aid  in  such  construc- 
tion. Smith  v.  McCullough,  104  l'. 
S.  25,  29.  26  L.  ed.  037,  639. 

28  La  Crosse  Railroad  Bridge,  2 
Dill.   465. 

29  Kirkpatrick  v.  Am.  Alkali  Co., 
135  Fed.  230. 

30  Missouri  Pac.  Ry.  Co.  v.  Texas 
&  P.  Ry.  Co.,  33  Fed.  701  ;  a.  c, 
Blaener,  Intervener,  41  Fed.  319, 
limited  by  Thomas  v.  East  Term.,  V. 
&  G.  Ry.  Co..  00  Fed.  7.  But  see 
Hoyt   v.   Thompson.   5    X.   V.   320. 

81  Jackson  v.  Jackson,  2  Hogan. 
238. 


982 


HECK  [VERS. 


[§   308 


powering  him  to  set  and  let  the  same.32  Even  with  this,  it 
seems  that  without  special  authority  he  cannot  let  any  part 
thereof  so  as  to  bind  the  estate  for  a  longer  period  of  time  than 
is  authorized  bv  the  Statute  of  Frauds.33  but  that  a  lease  made 
for  a  longer  time  would  bind  a  tenant  who  had  accepted  it.34 
It  is  the  safer  practice  for  the  receiver  not  to  employ  a  rout 
collector  until  he  has  authority  from  the  court.35  Where  the 
board  of  directors  may  assess  the  stockholders,  the  receiver  may 
be  empowered  to  do  the  same.36  It  is  doubtful  whether  a  re- 
ceiver has  the  right  to  use  a  patent  under  a  license  given  the 
person  over  whose  estate  he  was  appointed.37  A  receiver  of  a 
dissolved  corporation  may  sustain  a  lull  to  compel  the  assign- 
ment to  him  of  a  patent  by  the  legal  owner  when  the  corpo- 
ration had  the  equitable  title  to  the  same.38  The  court  may 
authorize  a  receiver  of  a  corporation  to  make  any  contract 
within  the  corporate  powers,  provided,  at  least,  that  it  does  not 
bind  the  property  after  the  receivership  is  terminated.39 

§  308.  Powers  of  receivers  of  railroads.  Very  extensive 
powers  are  often  granted  to  the  receivers  of  railroads.1  And  in 
a  carefully  considered  opinion,  Mr.  Justice  Bradley  said :  "It 
may  be  laid  down  as  a  general  proposition,  that  all  outlays  made 
by  the  receiver  in  good  faith,  in  the  ordinary  course,  with  a 
view  to  advance  and  promote  the  business  of  the  road,  and  to 
render  it  profitable  and  successful,  are  fairly  within  the  line  of 
discretion  which  is  necessarily  allowed  to  a  receiver  intrusted 
with  the  management  and  operation  of  a  railroad  in  his  hands. 
His  duties,  and  the  discretion  with  which  he  is  invested,  are 
very    different    from    those    of    a    passive    receiver,    appointed 


32Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1989. 

33  Kerr  on  Receivers  (2d  Am. 
ed.),  210,  211. 

34  Dancer  v.  Hastings.  4  Bing.  2; 
Kerr  on  Receivers  (21  Am.  ed.), 
211. 

35  Peters  v.  John  Kress  Brewing 
Co..  X.  Y.,  Sp.  Tra.,  X.  Y.  Co.  Dec. 
13.   1905. 

36  Maxwell   v.   Akin.   89   Fed.   178. 

37  Compare  Montrose  v.  Mabie,  30 


Fed.  234.  with  Curran  v.   Craig,  22 
Fed.   101. 

38  McCulloh  v.  Association  Hor- 
logerie  Suisse,  45  Fed.   479. 

39  South  Carolina  &  G.  R.  Co.  v. 
Carolina  C  E.  &  C.  Ry.  Co.,  C.  C. 
A.,  93  Fed.  543,  553. 

§  308.  1  Davis  v.  Gray.  16  Wall. 
203.  219.  220:  Cowdrey  v.  Railroad 
Co..  1  Woods.  331.  330.  See  Rai! 
road  Receivers  in  Federal  Courts, 
by  Judge  Caldwell,  44  Am.  Law 
Rev.  161. 


308] 


POWERS   OF   RECEIVERS   OF   RAILROADS. 


Its:; 


merely  to  collect  and  hold  moneys  due  <>n  prior  transactions,  or 
rents  accruing  from  houses  and  lands.  And  to  such  outlays  in 
ordinary  course  may  properly  be  referred,  not  only  the  keeping 
of  the  road,  buildings,  and  rolling  stock  in  repair,  but  also  the 
providing- of  such  additional  accommodations,  stock,  and  instru- 
mentalities as  the  necessities  of  the  business  may  require, 
always  referring  to  the  court  or  to  the  master  appointed  in  that 
behalf,  for  advice  and  authority  in  any  matter  <>i'  importance, 
which  may  require  a  considerable  outlay  of  money  in  lump; 
and  except  in  extraordinary  cases,  the  submission  by  the  re- 
ceiver of  his  accounts  to  the  master  at  frequent  intervals, 
whereby  the  latter  may  ascertain  from  time  to  time  the  char- 
acter of  the  expenditures  made,  and  disallow  whatever  may  nut 
meet  with  his  approval,  will  be  regarded  as  a  sufficient  refer- 
ence to  the  court  for  its  ratification  of  the  receiver's  proceed- 
ings. In  extraordinary  cases,  involving  a  large  outlay  of 
money,  the  receiver  should  always^apply  to  the  court  in  advance 
and  obtain  his  authority  for  the  purchase  or  improvement  pro- 
posed.''8 It  has  been  held  that  the  receiver  is  not  obliged  to 
obtain  special  authority  from  the  court  to  make  contracts  for 
ordinary  supplies  or  accommodations  needed  for  the  operation  of 
the  railroad;  such  as  equipment,  repairs,  the  use  of  the  round- 


2  Cowdrey  v.  Railroad  Co.,  1 
Woods,  331,  330.  This  language 
has  been  thus  construed  in  a  case 
in  a  State  court :  "This  rule,  it 
will  be  observed,  simply  prescribes 
what  expenditures,  out  of  the  fund 
in  his  hands  as  receiver,  the  court, 
will  recognize  as  legitimate  and 
proper  when  the  receiver  comes  to 
account  for  the  administration  of 
his  trust,  but  nothing  here  said 
gives  the  slightest  support  to  the 
notion  that  the  receiver  may.  in 
virtue  of  the  power  of  his  office, 
make  a  contract,  without  the  au- 
thority of  the  court,  Which  will  bind 
the  trust,  or  which  the  court  will 
be  bound  to  recognize  without  re- 
gard to  its  necessity  or  propriety. 
A  receiver  may.  undoubtedly,  ap- 
propriate  moneys    in   his   hands   be- 


longing to  the  trust  to  such  pur- 
poses, connected  with  the  trust,  a- 
be  may  think  proper,  always  taking 
the  risk  that  the  court  will  finally 
approve  his  action,  but  lie  has  no 
authority  to  bind  the  trust  by  con- 
tract without  the  authority  of  the 
court.  Until  his  contracts  are  ap- 
proved or  ratified  by  the  court,  tin' 
court  is  at  liberty  to  deal  with 
them  as  to  it  shall  appear  to  be 
just,  and  may  cither  modify  them 
or  disregard  them  entirely.  This, 
in  my  judgment,  is  the  only  safe 
rule  which  can  be  adopted."  Van 
Fleet.  V.  C,  Lehigh  Coal  &  Na\ 
Co.  v.  Central  K.  of  N.  J.,  35  X. 
J.  Eq.  426,  4-2U.  To  a  similar  elicit. 
is  Union  Tr.  Co.  v.  111.  Mid.  Ry. 
Co..  117  U.  S.  434.  29  L.  ed.  9G3. 


984 


RECEIVERS. 


[§  308 


houses  and  terminals,  and  the  employment  of  an  agent  to  solicit 
business  and  to  contract  to  transport  goods  over  other  lines  or  by 
connecting  boats;3  and  that  such  contracts,  although  subject  to 
review  by  the  court,  will  not  be  set  aside  unless  the  charges  are 
unreasonable,  unusual,  or  extravagant,     The  receiver  is  justi- 
fied in  paying  claims  for  the  loss  of  freight  upon  proof  by  the 
affidavits  of  the  shippers  without  any  application  to  the  court, 
where   that   is   the   usual   course   of   business   by   railway    and 
express  companies.4     A  loan  to  a  receiver  whom  the  court  has 
not  authorized  to  borrow  money  will  be  denied  priority.5     A 
receiver  cannot  make   a  permanent   traffic   agreement  without 
the  authority  of  the  court.6     It  has  been  held  that  the  court  has 
power  to  authorize  the  receiver  of  a  railroad  company  under 
proceedings  for  a  foreclosure,  to  ratify  a  contract  previously 
made  by  the  corporation  giving  a  telegraph  company  certain 
privileges  upon  its  road ;  and  that  the  contract  thus  ratified  will 
be  binding  upon  purchasers  of  the   railroad   at   a   foreclosure 
sale ; 7  that  such  a  receiver  may  be  authorized   to  make  such 
expenditures  as  are  necessary  to  render  the  operation  efficient 
and  to  perfect  the  service,  in  return  for  which  the  franchises 
were  given,8  complete  the  construction  of  a  line  of  railroad,  and 
to  borrow  money  for  that  purpose,9  to  purchase  a  lien  upon  part 


3  No.  Pac.  Ry.  Co.  v.  Am.  Trading 
Co.,  195  U.  S.  439,  461,  49  L.  ed. 
269,  279;  South  Carolina  v.  Port 
Royal  &  A.  Ry.  Co.,  89  Fed.  565, 
572,  574. 

4  Central  Tr.  Co.  v.  Colorado  Mid. 
Ry.  Co.,  89  Fed.  560.  564. 

5  Union  Tr.  Co.  v.  111.  Mid.  Ry. 
Co.,  117  U.  S.  434,  477,  29  L.  ed. 
963,  978;   §  309,  infra. 

6  Investment  Co.  of  Phila.  v.  Ohio 
&  X.  W.  Ry.  Co.,  4  Fed.  378. 

?\V.  U.  Tel.  Co.  v.  Atl.  &  Pac. 
Tel.  Co.,  7  Biss.  367. 

8  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  165  Fed.  455.  This 
includes  the  completion  of  car 
houses,  which  were  being  rebuilt 
and  enlarged  on  some  of  the  lines 
held  by  the  receiver.  Pennsylvania 
Steel  Co.  v.  X.  Y.  City  Rv.  Co.,  C. 


C.  A.,  180  Fed.  704,  where  it  was 
said  that  the  apportionment  of  the 
expense  between  the  different  mort- 
gagees should  be  determined  on  a 
final  accounting. 

9  Kennedy  v.  St.  P.  &  P.  Ry.  Co., 
2  Dill.  448;  infra,  §  309.  See  also 
Smith  v.  McCullough,  104  U.  S.  25: 
Allen  v.  D.  &  \V.  R.  Co.,  3  Woods, 
316.  In  such  a  case,  notice  to  the 
lienors  should  be  given.  Bibber- 
White  Co.  v.  White  River  Yal.  El. 
R.  Co.,  C.  C.  A.,  115  Fed.  786.  It 
has  been  held  that  a  railroad  re- 
ceiver may  be  authorized  to  pledge 
securities  which  are  the  property 
of  the  corporation  as  collateral  for 
a  loan,  and  to  incur  liability  for 
the  expenses  of  a  scheme  to  refund 
the  corporate  indebtedness.  Clarke 
v.  Central  R.  &  B.  Co.,  54  Fed.  556. 


§     308]  POWERS    OF    RECEIVERS    OF    RAII.KOADS.  985 

of  its  property,  to  assume  a  lease  of  a  connecting  railway. 


10  Farmers'  L.  &  Tr.  Co.  v.  Bur- 
lington &  S.  \V.  Ry.  Co.,  32  Fed. 
805.  See  also  Central  Tr.  Co.  v. 
Wabash,  St.  L.  &  P.  Ry.  Co.,  34 
Fed.  259;  Central  Tr.  Co.  v.  Wa- 
bash, St.  L.  &  P.  Ry.  Co..  23  Fed. 
8G3;  Easton  v.  Houston  &  T.  C.  Ry. 
Co.,  38  Fed.  784.  The  rules  which 
should  regulate  a  receivership  of  a 
consolidated  railroad  holding  leased 
lines  with  separate  mortgages  upon 
the  different  branches,  as  well  as  a 
general  mortgage  upon  the  whole 
system,  were  thus  stated  in  an  opin- 
ion of  Judge  Brewer,  delivered  when 
denying  an  application  by  a  receiver 
of  such  a  system  of  railroads  for 
leave  to  reject  such  leased  roads  as 
were  unprofitable:  "This  Wabash 
road  is  composed  of  many  subdivi- 
sions. While  it  is  a  single  corpora- 
tion today,  yet  into  it  have  passed 
many  corporations  and  many  sepa- 
rate railroad  properties.  In  admin- 
istering such  a  consolidated  prop- 
erty, the  court  must  look  at,  not 
merely  the  interest  of  the  mort- 
gagee in  this  general  mortgage,  or 
of  the  mortgagor  as  a  single  entity 
or  corporation,  but  also  the  sepa- 
rate and  sometimes  conflicting  in- 
terests of  the  various  subdivisions 
and  their  respective  incumbrances, 
and,  back  of  all  that,  the  duty 
which  every  railroad  corporation 
owes  to  the  public.  And  that  duty 
is  not  limited  to  the  operation  of 
merely  that  particular  fragment  of 
a  road  which  is  pecuniarily  profit- 
able in  its  operations,  but  it  ex- 
tends to  the  road  as  an  entirety, 
and  to  all  its  branches, — all  its 
parts;  differing  in  that  particular 
from  the  duty  which  would  rest 
upon  the  court  if  it  had  simply 
taken    possession    of   property    used 


for  private  purposes,  manufactur- 
ing or  otherwise,  where  the  single 
question  might  well  be  said  to  be 
one  of  pecuniary  profit.  This  Wa- 
bash road,  as  a  system,  was  in  oper- 
ation, a  going  concern,  from  one 
end  to  the  other;  as  such,  discharg- 
ing its  duties  as  best  it  could  to  its 
various  creditors.  This  court,  at 
the  instance  of  the  corporation,  and 
to  preserve  the  integrity  of  the  sys- 
tem, took  possession  of  it  by  its 
receivers.  It  took  possession  of  it 
as  a  going  concern,  and  so  far  as 
is  reasonable  and  practicable,  it 
should  continue  it  as  a  going  con- 
cern until  it  surrenders  it  to  who- 
ever may  be  the  purchasers  or  fu- 
ture holders  of  it.  With  that 
preface,  and  calling  these  separate 
branches  which  have  passed  into 
this  consolidated  road,  subdivisions, 
since  some  have  passed  in  by  way 
of  lease  and  others  by  way  of  con- 
solidation, subject  to  separate  mort- 
gages, we  pass  orders  substantially 
as  follows:  The  first  is  one  which 
lias  already  been  entered,  and  we 
simply  emphasize  it  by  repeating  it, 
that  subdivisional  accounts  must  be 
kept  separately.  That  was  an  or- 
der passed  by  Brother  Treat  at  the 
very  outset  of  this  receivership,  in 
order  that  the  particular  equities 
of  each  one  of  these  divisions,  a- 
between  themselves,  might  be  as- 
certained. 2.  Where  any  subdivi- 
sion earns  a  surplus  over  expenses', 
the  rental  or  Bubdivisional  interest 
will  be  paid  to  the  extent  of  the 
surplus,  and  only  to  the  extent  of 
the  surplus.  Any  part  diversion  of 
such  surplus  for  general  operating 
expenses  will  be  made  good  at  once, 
and.  if  need  lie.  by  the  issue  of 
receiver's    certificates.      ...     3. 


986 


RECEIVERS. 


[§     308 


even  without  notice  to  the  mortgagee,11  and  to  lease  a 
railway  for  a  fixed  term  ;  although,  in  such  a  case,  a  provision 
for  a  cancellation  of  the  lease  at  the  option  of  the  court  should 
ordinarily  he  inserted.12  Where  the  lease  contains  no  such 
clause,  the  lessee  is  entitled  to  compensation  for  the  unexpired 
term,  if,  before  his  lease  expires,  he  is  ousted  from  possession 
by  the  court.13  Receivers  for  the  lessee  of  a  number  of  connect- 
ing  street  railroads  in  the  same  suit  under  leases  from  different 
lessors  were  authorized  to  use  the  income  for  the  entire  system 
for  the  purpose  of  operating  and  maintaining  the  same  as  a 
unit,  notwithstanding  the  provisions  of  mortgages  upon  parts 


Where  a  subdivision  earns  no  sur- 
plus.— simply  pays  operating  ex- 
penses,— no  rental  or  subdivisional 
interest  will  be  paid.  If  the  lessor 
<>r  the  subdivisional  mortgagee  de- 
sires possession  or  foreclosing  he 
may  proceed  at  once  to  assert  his 
rights.  While  the  court  will  con- 
tinue to  operate  such  subdivision 
until  some  application  be  made,  yet 
the  right  of  a  lessor  or  mortgagee 
whose  rent  or  interest  is  unpaid  to 
insist  upon  possession  or  foreclo- 
sure will  be  promptly  recognized. 
That,  it  is  true,  may  work  a  dis- 
ruption of  the  system,  as  evidenced 
by  the  movement  just  made  in  re- 
spect to  this  Cairo  division:  but 
the  proceeding  for  disruption  will 
come  from  the  subdivisions.  The 
court  is  not  sloughing  off  branches 
tearing  the  system  in  two:  but  the 
disruption,  if  it  comes,  will  come 
from  those  who  seek  separation,  and 
have  a  legal  right  so  to  do.  But  see 
Pennsylvania  Steel  Co.  v.  X.  Y.  City 
Ry.  Co..  C.  C.  A..  180  Fed.  704. 
4.  Where  a  subdivision  not  only 
earns  no  surplus  but  fails  to  pay 
operating  expenses,  as  in  the  St. 
Joseph  &  St.  Louis  branch,  the  oper- 
ation of  the  subdivision  will  be  con- 
tinued, but  the  extent  of  that  oper- 
ation    will     be     reduced     with     an 


unsparing  though  a  discriminating 
hand;  that  is.  if  a  subdivision  does 
not  earn  operating  expenses,  and 
the  receivers  are  running  two  trains 
a  day.  then  lop  one  of  them  off.  If 
they  are  running  one  train  a  day, 
and  still  it  does  not  pay,  then  run 
one  train  in  two  days.  While  the 
court  will  endeavor  to  keep  that 
subdivision  in  operation,  it  will 
make  the  burden  of  it  to  the  con- 
solidated corporation,  and  to  all  the 
other  interests  put  into  that  con- 
solidated corporation,  a  minimum." 
Treat,  J.,  concurring,  in  Central  Tr. 
Co.  v.  Wabash.  St.  L.  &  P.  Ry.  Co., 
23  Fed.  863,  865-867.  In  the  same 
case,  Judge  Woods  subsequently  re- 
jected a  claim  to  a  preference  over 
the  mortgage  for  rents  accrued 
pending  a  receivership,  in  a  suit  in 
which  the  mortgagee  had  been  de- 
nied the  extension  of  the  receiver- 
ship for  his  benefit.  Centra]  Tr. 
Co.  v.  Wabash.  St.  L.  &  P.  Ry.  Co., 
46  Fed.  26.  But  see  Mercantile  Tr. 
Co.  v.  Farmers'  L.  &  Tr.  Co..  C.  C. 
A.,  SI  Fed.  254:  supra,  §  305.  Cf. 
infra.  §  321. 

11  Mercantile    Tr.    Co.    v.    Mo..    K. 
&   T.   Ry.  Co..   41    Fed.   8.   11,   12. 

12  Farmers"  L.  &  Tr.  Co.  v.  Eaton, 
C.  C.  A..  114  Fed.  14. 

13  Ibid. 


309] 


RECEIVER  S     CERTIFICATES. 


987 


of  the  property.14     It  has  been  held  that  receivers  should   aol 

be  authorized  to  lease  street  railways  to  a  new  corporation,  with 
authority  to  the  lessee  to  issue  bonds  secured  by  a  mortgage 
with  priority  over  mortgages  previously  existing,  in  order  to 
raise  the  funds  for  the  improvement  of  the  property,  under  the 
direction  of  a  board  of  engineers  representing  the  city,  and 
not  the  original  owners  of  the  property; 15  but,  in  the  same  case 
the  Circuit  Court  subsequently  authorized  the  receivers  to 
deliver  the  street  railways  to  the  reorganized  corporal  ion  before 
the  foreclosure  sale.16  Without  authority  from  the  court  a  re- 
ceiver of  a  railroad  cannot  lease  offices  for  a  term  of  four 
years;17  nor  it  seems  for  any  time.18  Such  authority  is  nol 
included  in  the  grant  of  power  to  make  all  contracts  that  may 
be  necessary  in  carrying  on  the  business  of  the  railroad,19  nor 
is  the  lease  ratified  by  the  approval  of  monthly  accounts  show- 
ing payment  of  rent  under  the  same. 

§  309.  Receiver's  certificates.  Where  it  is  absolutely 
necessary  to  raise  money  for  the  preservation  of  the  property 
in  his  hands,  a  receiver  may  be  empowered  by  the  court  to  issue 
certificates  which  give  their  owners  a  lien  upon  the  property 
prior  to  that  held  by  any  persons  except  those  whose  claims  are 
paramount  to  the  rights  of  the  parties  to  the  suit.1  Such  certifi- 
cates may  have  a  priority  over  a  vendor's  lien  upon  rails.2    Such 


14  Barber  A.  P.  Co.  v.  Forty-Sec- 
ond St..  M.  &  St.  X.  Ave.  Ry.  Co., 
C.  C.  A..   180   Fed.  648. 

15  Merchants'  L.  &  Tr.  Co.  v.  Chi- 
cago Rys.  Co.,  C.  C.  A.,  158  Fed. 
923. 

16  Guaranty  Tr.  Co.  v.  Chicago 
Union  Traction  Co..   158  Fed.  101".. 

17  Chicago  Deposit  Vault  Ry.  Co. 
v.  McNulta,  153  U.  S.  554,  38  L. 
ed.  819. 

18  Branian  v.  Farmers'  L.  &  Tr. 
Co.,  C.  C.  A..  114  Fed.  18,  21.  The 
same  case  considers  the  proper  dis- 
bursements of  a  receiver  for  hotel 
hill,. 

19  Chicago  Deposit  Vault  Ry.  Co. 
v.  McNulta,  153  U.  S.  554,  38  L.  ed. 
Slit. 

20  Ibid. 


§  309.  1  Mover  v.  Johnston, '  53 
Ala.  237:  Jerome  v.  McCarter.  '•»! 
U.  S.  734,  24  L.  ed.  1.3(1;  Wallace 
v.  Loomis,  97  U.  S.  146,  24  L.  ed. 
895;  Miltenberger  v.  Logaflspor't 
Ry.  Co..  10(1  I".  S.  286,r  27  L.  ed. 
117:  Stanton  v.  Ala.  &  C.  Ry:  Go., 
2  Woods.  506;  s.  c:  31  Fed!  585; 
Kennedy  v.  St.  Paul  &  P.  R.  Co.. 
2  Dill.  44S;  Hoover  v.  Montclair  & 
G.  L.  R.  Co..  29  N.  •!.  Eq.  4:  I  6e 
v.  X.  J.  Mid.  Ry.  Co..  27  X.  .1.  Eq. 
37:  Union  Tr.  Co.  v.  Illinois  Mid. 
Ry.  66.,  117  C  S.  434.  29  1..  ed. 
iMi.'C  For  a  case  when'  certain  prop- 
erty was  exempted  from  the  lien, 
see  Third  St.  &  S.  Ry.  Co.  v.  bewis, 
79   Fed.   19. 

2  Royal    Tr.    Co.    v.    Wa>lil.urn    P.. 
&  I.  Ry.  Co..  C  C.  A..   120   Fed.   11. 


!!SS 


RECEIVERS. 


[§   309 


certificates  are  usually  issued  only  in  suits  for  the  foreclosure 
of  railroad  or  telegraph  mortgages,  or  mortgages  of  other  public 
corporations,  in  order  to  raise  money  for  repairs,  or  to  defray 
operating  expenses,3  or  to  discharge  claims  having  an  equitable 
preference  to  that  of  the  party  at  whose  instance  the  receiver 
was'  appointed,4  or  to  restore  to  the  rightful  owners  so  much 
of  the  income  as  the  receiver  has  improperly  applied  to  the  fore- 
going purposes.5  In  a  few  cases,  receivers  have  been  authorize  1 
thus  to  borrow  money  in  order  to  complete  the  construction  of 
railroads,  and  save  from  forfeiture  land  grants  and  municipal 
subscriptions.6  Certificates  have  been  issued  to  pay  interest 
upon  a  divisional  mortgage  prior  to  that  to  foreclose  which  the 
suit  was  brought.  In  cases  of  industrial  corporations,  which 
are  not  engaged  in  public  service,  such  as  mining  companies,8 
manufacturing    companies,9    and    land    and    irrigation    com- 


3  Jerome  v.  McCarter,  94  U.  S. 
7.'54.  24  L.  ed.  136;  Wallace  v. 
Loomis,  07  U.  S.  146,  24  L.  ed.  895; 
Miltenberger  v.  Logansport  Ry.  Co., 
106  U.  S.  286,  27  L.  ed.  117.  But 
see  Merchants  Loan  &  Tr.  Co.  v. 
Chicago  Rys.  Co..  C.  C.  A..  158  Fed. 
92:5;  Gay  v.  Hudson  River  El.  Pow- 
er Co.,   166   Fed.  771. 

4 -Miltenberger  v.  Logansport  Ry. 
Co.,  106  U.  S.  286,  27  L.  ed.  11 7-, 
Taylor  v.  Phila.  &  R.  R.  Co.,  7  Fed. 
377:  Skiddy  v.  Atlantic.  M.  &  0. 
R.  Co.,  3  Hughes.  320. 

5  Central  Trust  Co.  v.  Wabash, 
St.  L.  &  P.  Ry.  Co.,  23  Fed.  863; 
Bcrwind-White  Coal  Min.  Co.  v. 
Metropolitan  S.  S.  Co.,  183  Fed. 
250;  Am.  Trust  Co.  v.  Metropolitan 
S.  S.  Co..  C.  C.  A.,  190  Fed.  113: 
approved  Harv.  Law  Rev.,  XXV,  460. 

6  Kennedy  v.  St.  Paul  &  P.  R. 
Co.,  2  Dill.  448:  Miltenberger  v. 
Logansport  Ry.  Co..  106  V.  S.  286, 
294,  295.  27  L.  ed.  117.  120,  121. 
See  also  Smith  v.  McCullough,  104 
U.  S.  25.  29.  .26  L.  ed.  637.  639. 
But  see  Investment  Co.  v.  Ohio  & 
X.    W.    R.    Co.,    30    Fed.    48;    Mer- 


chants' Loan  &  Trust  Co.  v.  Chi- 
cago Rys.  Co.,  C.  C,  A..  158  Fed. 
923;  Bibber-White  Co.  v.  White 
River  Val.  El.  R.  Co..  C.  C.  A.,  115 
Fed.  786.  See  Credit  Co.  v.  Arkan- 
sas Central  R.  Co..   15   Fed.  446. 

7  Skiddy  v.  Atlantic.  Miss.  &  O. 
R.  Co..  3  Hughes,  320.  341.  See 
Am.  Trust  Co.  v.  Metropolitan  S. 
S.  Co.,  C.  C.  A.,  190  Fed.  113.  Con- 
tra, Knickerbocker  Tr.  Co.  v.  One- 
onta,  Cooperstown  &  Richfield 
Springs  Ry.  Co..  201  N.  Y.  379. 

8  Fidelity  I.  &  S.  Co.  v.  Shenan- 
doah Iron  Co..  42  Fed.  372;  Farm- 
ers' L.  &  Tr.  Co.  v.  Grape  Creek 
Coal  Co.,  16  L.R.A.  603.  50  Fed. 
481  ;  International  Tr.  Co.  v.  Decker 
Bros.,  C.  C.  A..   152  Fed.  78. 

9  Fidelity  I.  &  S.  Co.  v.  Shenan- 
doah Iron  Co..  42  Fed.  372;  Laugh- 
lin  v.  U.  S.  Rolling  Stock  Co.,  64 
Fed.  25:  Newton  v.  Eagle  &  P.  Mfg. 
Co.,  76  Fed.  418;  Union  Tr.  Co.  v. 
Southern  Sawmills  &  Lumber  Co., 
C.  C.  A.,  166  Fed.  193.  See  Conklin 
v.  U.  S.  Shipbuilding  Co.,  123  Fed. 
913.  See  High  on  Receivers,  (4th 
ed.)    §   312b. 


§  309] 


RECKIVKK  S     CERTIFICATES. 


989 


panics.10  the  court  has  no  power  to  issue  receivers'  certificates 
to  displace  mortgage  liens  without  the  consent  of  the  mortgagee, 
except  to  provide  for  the  necessary  expenditures  incident  to 
the  administration  of  the  assets,  and  the  preservation  of  the 
property  from  deterioration,  pending  the  winding  up  of  the 
business  and  a  settlement  of  the  receivership.  It  has  been  held 
that  such  a  receiver  has  no  power,  for  the  purpose  of  completing 
an  unfinished  building,  to  borrow  money  by  means  of  certifi- 
cates,  which  have  priority  over  a  pre-existing  mortgage.11 
Where  the  net  earnings  of  a  railroad  are  sufficient  to  defray 
current  expenses,  the  court  will  not  authorize  the  issue  of  re- 
ceiver's certificates  merely  for  the  sake  of  paying  interest  upon 
the  mortgage  under  foreclosure.13  It  has  been  said  to  be  doubt- 
ful whether  the  court  has  the  power  to  authorize  a  receiver  to 
issue  car-trust  certificates  secured  by  a  lien  upon  the  cars  which 
are  thus  bought,  and  payable  in  ten  annual  installments.13  An 
order  authorizing  the  issue  of  receiver's  certificates  to  pay 
"wages  and  freights  due  and  to  become  due"  does  not  authorize 
the  issue  of  a  certificate  to  pay  money  advanced  to  pay  wages 
by  honoring  "store  orders. "  14  The  power  of  courts  of  equity 
to  issue  receiver's  certificates  is  of  modern  origin,15  has  been 
severly  criticized,16  and  should  be  exercised  with  great  reluct- 
ance.17    Without  leave  from  the  court,  a  receiver  has  no  power 


lOHanna  v.  State  Tr.  Co.,  C.  C. 
A..  30  L.R.A.  201.  70  Fed.  2;  Farm- 
ers' Loan  &  Tr.  Co.  v.  Burbank 
Power   &    Water   Co.,    190    Fed   539. 

n  Raht  v.  Attrill,  106  X.  Y.  423. 
CO  Am.  Rep.  4.56.  See  X'.  S.  Invest- 
ing Corp.  v.  Portland  Hospital 
(Oregon,  1902),  67  Pac.  194.  56 
L.R.A.  627.  See  Baltimore  Build- 
ing &  Loan  Ass'n  v.  Alderson.  ('. 
C.  A.,  90  Fed.  142,  32  C.  C.  A.  542. 

12  Taylor  v.  Phila.  &  R.  R.  Co., 
9   Fed.   1. 

13  Ibid. 

"Fidelity  Ins.  &  S.  D.  Co.  v. 
Shenandoah  I.  Co.,  42  Fed.  372.  377. 

15  The  first  case  seems  to  have 
been  Meyer  v.  Johnson  (1S75I.  53 
Ala.   237;    Coe   v.    X.    3.   Mid.    Rv. 


Co..  27  X.  J.  Eq.  37:  Hoover  v. 
Moritclair  &  G.  L.  Ry.  Co.,  29  X.  J. 
Eq.  4;  Jerome  v.  McCarter.  94  U. 
S.  734.  24  L.  ed.  136:  Wallace  v. 
Loomis.  97  U.  S.  146.  24  L.  ed.  895. 

io  Barton  v.  Barbour,  lot  U.  S. 
126,  138.  20  L.  ed.  072.  678;  Credit 
Co.  v.  Arkansas  Cent.  R.  Co..  15 
Fed.  46.  Sec  (lie  ('unit  Manage- 
ment of  Railroads,  by  lion.  S.  1). 
Thompson,  27  Am.  Law  Rev.  481. 

w  Wallace  v.  Loomis,  97  V.  S. 
140.  103.  24  L.  vd.  S95.  90]  ;  Shaw 
v.  Railroad  Co'.,  ion  l\  s.  005.  012. 
25  I.,  ed.  757.  759:  Taylor  v.  Phila. 
&  R.  R.  Co..  9  Fed.  1:  Credit  Co. 
of  London  v.  Arkansas  Cent.  R.  Co., 
15  Fed.  40:  street  v.  Md,  Cent.  Ry. 
Co..  59  Vn\.  25. 


990 


RECEIVERS. 


[§    309 


to  pledge  the  trust  estate,  nor  to  make  a  contract  for  a  loan 
of  money  which  will  hind  the  estate,18  or  even  hind  the  pro- 
posed lender.19  An  order  for  the  issue  of  receiver's  certificates 
is  usually  granted  only  upon  notice  to  all  parties  in  interest.20 
Those  who  have  not  received  notice  may  move  to  set  aside  the 
order  and  to  cancel  the  certificates,  if  thev  act  as  soon  as  thev 
learn  what  was  done.21  The  order,  although  ex  parte,  remains 
in  force  till  set  aside;  and  is  not  revoked  by  a  reference  to 
determine  all  claims  against  the  receiver,  and  a  confirmation 
of  a  report  thereat  making  no  mention  of  the  certificates,  when 
it  appears  that  they  were  not  presented  or  considered  at  the 
reference,  and  that  their  holder  had  no  notice  of  the  reference.22 
A  very  short  delay  after  knowledge  that  such  an  order  has  been 
grated  will  estop  a  party  from  objecting  to  the  validity  of 
certificates  issued  in  pursuance  of  it,23  and  from  claiming  that 


18  Union  Tr.  Co.  v.  111.  Mid.  Ry. 
Co..  117  U.  S.  434.  2!)  L.  ed.  963; 
(Vnt.  Tr.  Co.  v.  Cincinnati.  J.  &  M. 
Ry.  Co..  58  Fed.  500;  §  80S.  supra. 
The  court  may  ratify  the  loan  after 
it  lias  been  made.  Elk  Fork  0.  & 
G.  Co.  v.  Foster.  C.  C.  A.,  99  Fed. 
495:  Ibidl,  00  Fed.  707. 

19  Smith  v.  McCullough,  104  U. 
S.  25.  20,  20  L.  ed.  637,  039. 

20  Bibber-White  Co.  v.  White 
River  Val.  El.  R.  Co..  C.  C.  A..  135 
Fed.  780;  Union  Tr.  Co.  v.  Southern 
Sawmills  &  Lumber  Co.,  C.  C.  A., 
100  Fed.  193:  Illinois  Steel  Co.  v. 
Ramsey.  C.  C.  A.,  176  Fed.  853. 
860:  Knickerbocker  Tr.  Co.  v.  One- 
onta.  Cooperstown  &  Richfield 
Springe   Ry.  Co..  201   N.  Y.  379. 

21  Ex  parte  Mitchell.  12  S.  C.  8.3. 
But  see  .Miltenberger  v.  Logansport 
Ry.  Co..  100  U.  S.  286,  207.  298, 
27  L.  ed.  117.  121,  122. 

22Hervey  v.  111.  Mid.  Ry.  Co..  28 
Fed.  160.  Gf.  Central  T.  R.  Co.  v. 
Sheffield  &  B.  C.  I.  &  Ry.  Co.,  44 
Fed.  526.  Mercantile  Tr.  Co.  V. 
Kanawha  &  O.  Ry.  Co..  50  Fed.  874. 


23  Miltenberger  v.  Logansport  Ry. 
Co.,  100  U.  S.  2S6.  27  L.  ed.  117; 
Union  Tr.  Co.  v.  111.  Midland  Ry. 
Co.,  117  U.  S.'434.  29  L.  ed.  003; 
Central  Tr.  Co.  v.  Marietta  &  X.  G. 
R.  Co..  C.  C.  A..  75  Fed.  103:  s.  c. 
75  Fed.  200:  Berwind-White  Coal 
Min.  Co.  v.  Metropolitan  S.  S.  Co., 
183  Fed.  250.  It  was  held  that  no- 
tice of  an  application  for  receiver's 
certificates  given  to  a  trustee  of  a 
mortgage  who  was  not  a  party  to  a 
suit  did  not  make  them,  when  is- 
sued, prior  to  his  mortgage,  Farm- 
ers' L.  &  Tr.  Co.  v.  Centralis  &  C. 
R.  Co..  C.  C.  A..  00  Fed.  636:  and 
that  a  bondholders'  committee  em- 
powered to  act  in  matters  requisite 
or  necessary  for  the  enforcement 
and  protection  of  the  legal  rights 
of  the  holders  of  mortgage  bonds 
bad  no  authority  to  consent  in  their 
behalf  to  the  issue  of  receiver's  cer- 
tificates with  a  priority  over  the 
mortgage,  in  order  to  pay  claims 
not  entitled  to  a  preference.  Ibid. 
See  Fordyce  v.  Omaha.  Kansas  City 
v.  E.  R.  R.,  145  Fed.  544.  556. 


309] 


RECEIVER  S    CERTIFICATKS. 


DJJl 


property  is  not  subject  to  the  lien  of  such  certificates.  Re- 
ceivers certificates  are  assignable,  but  not  negotiable.  "Re- 
ceivers' certificates,  being  merely  evidences  of  indebtedness, 
can  have  no  higher  character  than  the  debts  of  which  they  are 
the  representatives."26  "The  receivers'  certificate  is  defined 
within  the  corners  of  the  court's  order,  aided,  in  interpretation, 
somewhat  by  the  petition  on  which  issued  and  such  other  docu- 
mentary evidence  as  may  be  relevant."27  A  purchaser  oi 
receiver's  certificates  at  par  from  the  receiver  without  notice 
of  any  suspicious  facts  is  not  prejudiced  by  the  appropriation 
of  the  funds  by  the  receiver  for  his  own  use.28  The  court  has 
power  to  pay  out  of  the  fund  receivers*  certificates  in  the  bands 
of  bona  fide  purchasers,  although  the  receivership  is  dissolved 
and  the  bill  dismissed.29  It  has  been  said  that  the  power  to 
issue  them  is  a  personal  one  which  the  receiver  cannot  dele- 
gate.30 The  holders  of  receiver's  certificates  are  bound  by  all 
subsequent  proceedings  in  the  suit,  whether  or  not  the  same 
affect  their  lien  and  with  or  without  notice.31  Tt  was  held  to 
be  an  abuse  of  discretion  for  the  court  to  sell  property,  without 


24  State  Tr.  Co.  v.  Kansas  City. 
P.  &  G.  R.  Co..  120  Fed.  308. 

25  Union  Tr.  Co.  of  X.  Y.  v.  Chi- 
cago &  L.  II.  R.  Co.,  7  Fed.  513; 
Stanton  v.  Ala.  &  C.  R.  Co.,  31  Fed. 
585;  Turner  v.  Peoria  &  S.  K.  Co., 
95  111.  134.  35  Am.  Rep.  144;  Stan- 
tun  v.  Ala.  &  C.  R.  Co..  2  Woods, 
50G;  s.  C,  31  Fed.  585;  Central 
Nat.   Bank   v.   Hazard,  30   Fed.  484. 

26  Fidelity  Ins.  &  Safe  Deposit 
Co.  v.  Shenandoah  Iron  Co.,  42  Fed. 
372.377;  Bibber-White  Cio.  v.  White 
River  Valley  EI.  R.  Co.,  175  Fed. 
470. 

27  Re  .1.  1!.  &  J.  M.  Cornell  Co.. 
20  1    Fed.  381,  3SS. 

28  Mercantile  Tr.  Co.  v.  Kanawha 
&  0.  I!y.  Co.,  50  Fed.  874.  Where 
a  receiver  issued  a  certificate  to  a 
person  named  therein  as  payee,  for 
negotiation  and  sale,  and  the  latter 
never  paid  over  any  money  on  ac- 
count of  it,  a  purchaser  of  the  cer- 


tificate at  much  less  than  par,  who 
was  unable  to  prove  that  the  person 
from  whom  he  bought  it  had  paid 
anything  therefor  to  the  person 
named  as  payee,  was  not  allowed  to 
receive  anything  from  the  receive] 
on  account  of  the  same.  Union  Tr. 
Co.  v.  Chicago  &  L.  H.  R.  Co..  7 
Fed.  513.  See  Stanton  v.  Ala.  & 
C.  R.  Co.,  31  Fed.  585:  8.  C,  2 
Woods.  506. 

29  El.  Supply  Co.  v.  Put-in-Bay 
W.   L.  cV    Ry.  Co..  SI   Fed.  740. 

soiJnion  Tr.  Co.  v.  Chicago  «S;  L. 
II.  R.  Col,  7  Fed.  513.  Bui  see  Ala. 
Inm  \  Ry.  Co.  v.  Armiston  L.  & 
It.  Co..  C.  C.  A..  57   Fed.  25. 

31  Gordon  v.  Newman.  62  Fed. 
686;  Mercantile  T.  Co.  v.  Kanawha 
&  o.  Ky.  Co.,  C.  C.  A..  5S  Fed.  6. 
Bui  see  Sheffield  &  B.  <'.  l.  &  Ry. 
Co.  v.  Newman.  C.  C.  A..  77  Fed. 
7S7. 


992 


RECEIVERS. 


[§    309 


first  determining'  questions  raised  concerning  the  validity  of 
receivers'  certificates;32  and  that  such  questions  should  be 
determined,  after  taking  testimony  rather  than  upon  a  de- 
murrer.33 The  purchaser  at  a  judicial  sale  made  subject  to  the 
payment  or  receiver's  certificates  cannot  contest  their  validity,34 
unless  his  right  so  to  do  is  reserved.  A  receiver  is  personally 
responsible  for  a  fraudulent  statement  in  a  certificate  which  he 
issues.35  In  at  least  one  case,  the  court  ordered  the  receiver 
to  execute  a  mortgage  to  secure  the  receiver's  certificates.36 
Imt,  ordinarily,,  the  order  for  the  issue  of  the  certificates  pro- 
vides that  they  shall  constitute  a  lien  upon  the  property  su- 
perior to  all  prior  incumbrances,  which  is  sufficient.37  It  has 
been  said  that  a  receiver's  certificate  payable  out  of  the  in- 
come is  in  the  nature  of  a  call  loan,  and  that  the  holder  has 
the  right  to  presume  that  the  receiver  will  notify  him  when  the 
loan  is  to  be  collected  or  the  money  paid.38  Where  the  order 
provides  that  the  certificates  shall  be  a  first  lien  on  the  prop- 
erty, the  lien  may  be  enforced  by  an  independent  suit,39  or  by 
a  petition  in  the  suit  in  which  they  were  issued  to  the  court 
which  ordered  their  issue,40  or  to  a  court  having  territorial 
jurisdiction  over  a  part  of  the  railroad  in  an  ancillary  suit.41 
When  the  proceeds  of  the  property  are  insufficient  to  pay  the 
receiver's  certificates  in  full,  those  issued  to  defray  the  expenses 


32  International  Tr.  Co.  v.  Decker 
Bros.,    C.    C.    A.,    11    L.R.A.(X.S.) 

15-2,  152  Fed.  78. 

33  Savings  &  Tr.  Co.  v.  Bear  Val- 
ley Ir.  Co.,  112  Fed.  093. 

34  Central  Nat.  Bank  v.  Hazard. 
30  Fed.  484;  Central  T.  Co.  v.  Shef- 
field &  B.  C.  &  I.  Ry.  Co..  44  Fed. 
f)2G. 

35  Bank  of  .Montreal  v.  Thayer,  7 
Fed.  022. 

36  Jerome  v.  McCarter,  94  U.  S. 
734,  24  L.  ed.  136. 

37  For  a  good  form  of  an  order 
and  a  certificate,  see  Kennedy  v. 
St.  Paul  &  P.  Pv.  Co.,  2  Dill.  448. 
In  one  case  the  order  simply  stated 
that  the  certificates  should  he  pay- 
ahle  out  of  the  income  of  the  prop- 


erty, and  l'be  provided  for  by  this 
court  in  its  final  order  in  said 
cause,  unless  paid  by  the  receiver 
out  of  the  income  of  said  road  as 
aforesaid."  Miltenberger  v.  Logans- 
port  By.  Co.,  106  U.  S.  286,  298,  27 
L.  ed.  117,   122. 

38  Sage  J.,  in  Mercantile  T.  Co. 
v.  Kanawha  &  0.  Ry.  Co.,  50  Fed. 
874,  878. 

39S\vann  v.  Clark,  110  U.  S.  602, 
28  L.  ed.  256.  But  see  Re  C.  M. 
Burkhalter  &  Co.,   179  Fed.  403. 

40  Mercantile  T.  Co.  v.  Kanawha 
&  O.  Ry.  Co..  50  Fed.  874.  See  Am. 
Trust  Co.  v.  Metropolitan  S.  S.  Co., 
C,  C.  A.,  190  Fed.  113. 

«  Thid. 


I  309] 


RECEIVER  S     CERTIFICATES. 


993 


of  the  receivership  will  be  paid  before  certificates  given  for  pre- 
ferential debts  of  the  mortgagor,*8  but  certificates  issued  for 
betterments  were  not  given  a  priority  over  the  claims  for 
material  and  supplies  furnished  to  the  insolvent  within  a  few- 
months  before  the  receivership;43  and  the  lien  of  certificates 
issued  for  the  expenses  of  the  receivership  was  postponed  to 
that  for  tax  liens  and  mechanics'  liens  that  previously  vested, 
although  the  mortgagee  consented  that  such  certificates  should 
be  prior  to  the  mortgage.44  Where  there  were  two  sets  of  re- 
ceivers' certificates,  the  first  with  the  consent  of  the  bondholders 
made  a  lien  prior  to  the  mortgage,  the  second  issued  without 
such  consent  and  without  such  a  provision;  it  was  held  that  the 
second  set  should  be  paid  subsequent  to  the  mortgage.45  Where 
the  property  was  situated  outside  of  the  State  and  judicial  dis- 
trict, and  lienholders,  who  were  indispensable  parties,  were 
citizens  of  the  same  State  as  the  complainant;  it  was  held  that 
an  order  issuing  receivers'  certificates  to  complete  an  unfinished 
building  was  void.46  A  receiver  appointed  in  a  suit  for  the 
foreclosure  of  a  second  railroad  mortgage  may  be  authorized 
to  issue  certificates  constituting  a  prior  lien  to  that  of  the 
first  mortgage,  provided  the  mortgagor  is  in  default  as  to  that, 
and   the  first   mortgagee  is   a   party   to  the   suit.47     An   order 


42  Bank  of  Commerce  v.  Central 
Coal  &  Coke  Co.,  C.  C.  A.,  115  Fed. 
S78.  This  was  so  held  even  when 
the  decree  provided  that  the  fund 
arising  from  the  sale  should  be  ap- 
plied, after  payment  of  costs  and 
•expenses,  "to  the  payment  of  all 
interventions  or  other  claims  here- 
tofore or  hereafter  to  be  allowed 
.  .  .  as  superior  to  the  liens  of 
the  bonds  .  .  .  or,  if  the  fund 
realized  he  not  sufficient,  to  pay  the 
;same,  then  to  the  payment  of  the 
same   pro  rata." 

43  Pennsylvania  Steel  Co.  v.  N.  Y. 
•City  Ry.  Co..  105  Fed.  455;  §  305, 
supra. 

44  Pusey  &  Jones  v.  Pennsylvania 
Paper  Mills,  17:?  Fed.  634. 

45  Re  J.   P,.  &   J.  M.   Cornell   Co., 
201    Fed.    381.   303.      In    that   bank- 
Fed.  Prac.  Vol.  L— 63. 


ruptcy  case,  the  order  of  priority 
was  fixed  as  follows:  (1)  All 
taxes  due;  (2)  cost  of  administra- 
tion; (3)  claim  of  the  holder  of  the 
first  series  of  certificates,  which 
were  by  their  terms  a  lien  prior  to 
the  mortgage:  l4l  claims  of  bond- 
holders secured  by  the  mortgage; 
(5)  second  series  of  certificates  and 
claims  of  creditors,  who  had  fur- 
nished merchandise  to  the  receiv- 
ers, which  were  placed  upon  an 
equality;  (f>)  claims  for  damages 
for  breach  of  contract;  (7)  claims 
for  injuries.  Re  J.  B.  &  J.  M.  Cor- 
nell Co..  201    Fed.  381,  393. 

46  Baltimore  Building  &  Loan 
Ass'n  v.  Aldrrs.m,  C.  C.  A..  90  Fed. 
142,   32   C.   C.   A.  542. 

47  Miltenberger  v.  Logansport  Ry. 
Co.,  106  U.  S.  286,  27  L.  ed.  117. 


994 


RECEIVERS. 


[§  310 


authorizing  the  issue  of  receiver's  certificates  is  appealable.48 
A  Federal  court  has  no  power  to  enjoin  a  receiver  appointed 
by  a  State  court  from  issuing  certificates  of  indebtedness.*9 

§  310.  Advice  to  receivers.  Receivers  may  apply  to  the 
court  for  instructions  and  advice,  both  generally  and  in  particu- 
lar cases.1  In  every  doubtful  case,  it  is  the  duty  of  the  receiver 
to  apply  for  the  instructions  of  the  court.2  "If  there  are  parties 
in  interest,  and  they  have  their  day  in  court,  the  advice  may  be 
decisive.  But  if  the  matter  is  ex  parte,  the  value  of  the  advice 
depends  largely  upon  the  information  and  ability  of  the  judge, 
and  is  probably  binding  only  on  the  receivers,  for  the  judge 
may  change  his  mind  on  hearing  full  argument.',  3  He  may 
be  authorized  to  attend  the  hearings  before  a  State  Public- 
Service  Commission.4  It  has  been  said,  that  from  the  nature 
of  things  the  court  cannot  determine  how  many  trains  a  receiver 
shall  run,5  nor  select  his  employees,7  although  it  may  regulate 
his  treatment  of  them,7  and  his  contracts  with  rhem.8  and  will 
listen  to  their  complaints  of  unfair  treatment  by  him.9  The 
courts  have,  at  the  request  of  receivers,  instructed  them  what 
rates  to  charge,10  and  directed  them  not  to  obey  so  much  of  a 
State  statute  as  impaired  the  obligation  of  a  contract,  where 
the  petition  for  instructions  was  filed  a  month  before  the  act 


48  Farmers'  L.  &  T.  Co.  Petition- 
er, 129  U.  S.  206,  32  L.  ed.  650. 

49  Reinaeh  v.  Atlantic  &  G.  W.  R. 
Co..  58   Fed.  33. 

§  310.  l  Frank  v.  Denver  &  R. 
G.  Ry.  Co.,  23  Fed.  757;  Fx  parte 
Koehler,  23  Fed.  520:  Mo.  Pae.  Ry. 
Co.  v.  Tex.  &  P.  Ry.  Co.,  31  Fed. 
802. 

2  Cliable  v  Nicaragua  C.  C.  Co.. 
5!)   Fed.  S46. 

3  Mo.  Pae.  Ry.  Co.  v.  Texas  &  P. 
Ry.  Co..  31  Fed.  862;  Jones  v. 
Moore,  198  Fed.  301.  an  order  grant- 
ing leave  to  sue. 

4/.V  Metropolitan  St.  Ry.,  166 
Fed.   100G. 

5  Brewer,  J..  Treat,  J.,  concur- 
ring, in  Central  Tr.  Co.  v.  Wabash 
St.  L.  &  P.  Rv.  Co..  23  Fed.  863. 
867. 


6  Brewer,  J.,  in  Frank  v.  Denver 
&   R.  G.  Ry.  Co..  23   Fed.  757.   704. 

7  Frank  v.  Denver  &  R.  G.  Ry. 
Co..  23  Fed.  757,  764 ;  YVaterliouse 
v.  Coiner,  19  L.R.A.  403.  55  Fed. 
149. 

8  Waterhouse  v.  Comer,  19  L.R.A. 
403,  55  Fed.  149;  Piatt  v.  Phila. 
&  R.  R.  Co..  65  Fed.  660.  The  court 
refused  to  permit  receivers  of  a 
railroad  to  reduce  the  wages  of  the 
employees  and  change  the  terms  of 
their  employment  without  notice  to 
them.  Ames  v.  Union  Pae.  Ry.  Co.,. 
60  Fed.  674.  A  reduction  was  al- 
lowed in  U.  S.  Tr.  Co.  v.  Omaha  & 
St.  L.  Ry.  Co..  63  Fed.  737. 

9  Continental  Tr.  Co.  v.  Toledo. 
St.  L.  &  K.  C.  R.  Co..  59  Fed.  514. 

10  Fx  parte  Koehler,  23  Fed.  529. 


§  311] 


LITIGATION    BY     RECEIVERS. 


905 


went  into  operation.11  and  advised  a  receiver  whether  he  should 
pay  a  tax,12  and  authorized  them  to  default  in  the  paymenl  of 
mortgage   interest  under  a  stipulation   with   the  trustees   that 

foreclosure  suits  bo  instituted  and  the  receivership  extended  to 
them,  and  that  the  entry  of  the  decree  of  foreclosure  and  sale 
should  then  he  postponed  until  time  had  been  afforded  for  a 
reorganization.13  When  a  railroad  was  in  the  hands  of  a  re- 
ceiver appointed  in  a  suit  to  foreclose  a  mortgage,  the  court 
refused  to  entertain  a  petition  by  the  mortgagee  asking  for 
instructions  as  to  the  propriety  of  postponing  a  meeting  of  its 
stockholders,  and  for  permission  to  postpone  the  meeting.14 

§  311.  Litigation  by  receivers.  The  causes  of  act  inn 
which  a  receiver  can  enforce  are  of  two  kinds. — those  which  be- 
long to  the  estate  of  which  he  has  charge  before  it  was  en- 
trusted to  him.  and  those  which  have  accrued  since  his  appoint- 
ment. As  has  been  said  before,  he  cannot  sue  upon  either  with- 
out the  leave  of  the  court  which  appointed  him.1  A  suit  upon 
a  cause  of  action  which  belonged  to  the  estate  before  his  appoint- 
ment is  brought  in  the  name  of  the  legal  owner  of  the  estate ;  2 
unless,  as  is  not  uncommon,  the  order  authorizes  the  receiver 
to  sue  in  his  own  name.3  In  the  former  case,  the  person  whose 
name  is  used  is  indemnified  out  of  the  fund  for  all  costs  to 
which  he  is  thereby  made  liable.4  Receivers  of  corporations 
are  usually  authorized  to  sue  and  defend  in  the  name  of  the 
corporation.5     An  order  of  ancillary  appointment,  giving  the 


n  ibid. 

12  Ledoux  v.  La  Bee.  83   Fed.  761. 

13  Cay  v.  Hudson  River  El.  Power 
Co.,  C.  G.   A..   169   Fed.   1020. 

H  Taylor  v.  Phila.  &  R.  R.  Co.. 
7  Fed.  381. 

§311.  1  Wynne  v.  Lord  Xewbor- 
ough,  1  Yes.  ,lr.  104;  s.  c.  3  Brown. 
Ch.  C.  SS:  Green  v.  Winter.  1  J. 
Oh:   (X.  Y.i   60. 

2  Dick  v.  Struthers.  25  Fed.  103; 
Dick  v.  Gil-Well  S.  Co..  25  Fed. 
105;  Daniell's  Ch.  Pr.  (2d  Am,  ed.) 
1977.  This  1ms  been  held  bo  be  the 
proper  practice  before  final  decree. 
Bay  State  Gas  Co:  v.  Rogers,  147 
Fed.  .~>.">7.  559. 


3  Davis  v.  Gray.  1(1  Wall.  203.  21 
L.  ed.  447.  See  Frankle  v.  Jackson, 
30  Fed.  398; 

4  Daniell's  OK.  Pr.  (2d  Am.  ed.) 
10!)1. 

5  Frankle  v.  Jackson.  30  Fed. 
398;  Davis  v.  Gray,  16  Wall.  203, 
21  L.  ed.  447;  Harland  v.  B  4  M. 
Tel.  Co.,  33  Fed.  199;  Hale  v.  Har- 
den, 89  Fed.  283,  2S7.  ('(.  Wilder 
v.  New  Orleans.  (  .  t  .  A..  S?  Fed. 
S43;  Braddock  Br.  Co.  v.  Pfaudler 
V.  M,  Co.,  P.  C.  A.,  lnii  Fed.  004. 
Unfair  trade  may  he  enjoined  at 
tin'  suit  of  a  receiver  authorized  to 
carry    on    a     business*       Dixon    v. 


996 


RECEIVERS. 


[§    311 


receiver  all  the  powers  described  in  the  order  appointing  him,, 
in  the  court  of  primary  jurisdiction,  which  had  authorized 
him  to  institute  actions  or  suits  in  any  court  for  the  recovery 
of  any  estate,  property  or  judgment  existing  in  favor  of  the 
corporation,  gives  him  the  right  to  sue  in  the  name  of  the  corpo- 
ration to  recover  unlawful  profits  made  by  a  director  of  the 
same.6  Costs  recovered  against  a  receiver  in  an  action  brought 
by  him  in  his  official  capacity,  are  entitled  upon  the  distribution 
of  the  fund  to  a  priority  over  claims  that  existed  against  it 
before  the  receiver's  appointment.7  In  the  conduct  of  liti- 
gation, as  in  every  other  proceeding  by  him,  a  receiver  is  under 
the  constant  supervision  of  the  court.8  He  is  not  bound  by  a 
stipulation  which  is  not  advantageous  to  the  estate,  made  by 
himself  or  his  counsel  without  the  sanction  of  the  court.9  He 
cannot  waive  a  defense  on  the  merits.10     He  cannot  allow  a  set- 


Dixon.  Ch.  D.  89  L.  T.  272.     Harv. 
L.  Rev.  xvii.   19G. 

6  Bay  State  Gas  Co.  v.  Rogers, 
147   Fed.  557. 

7  Camp  v.  Receivers  Niagara 
Bank,  2  Paige  (X.  Y.),  283:  Col- 
umbian Ins.  Co.  v.  Stevens,  37  N. 
Y.  536;  Locke  v.  Covert.  42  Hun 
(49  X.  Y.  S.  C.  R.l.  484. 

8  Van  Dyck  v.  McQuade.  85  X. 
Y.  616;  McEvers  v.  Lawrence,  Hoff. 
Ch.   (X.  Y.)    175. 

9  Van  Dyck  v.  McQuade,  So  X.  Y. 
616;  Piatt  v.  Pliila.  &  R.  R.  Co.. 
115  Fed.  842.  Cf.  Vance  v.  Royal 
C.  Mfg.  Co.,  82  Fed.  251;  Central 
Tr.  Co.  v.  Worcester  Cycle  Mfg.  Co.. 
114  Fed.  659:  where  such  a  stipu- 
lation was  enforced.  A  stipulation 
by  the  receiver  of  a  corporation,  to 
enter  its  appearance  in  a  suit 
brought  against  it.  does  not  hind 
him  to  enter  his  own  appearance  as 
receiver.  Re  Muncie  Pulp  Co..  151 
Fed.  732.  733.  In  the  absence  of  a 
seasonable  and  well  founded  objec- 
tion, a  stipulation  made  by  receiv- 
ers of  an  insolvent  corporation 
binds     its    creditors.       Robinson    v. 


Mutual    Reserve   Life   Ins.   Co.,    182 
Fed.   850. 

!0  McEvers  v.  Lawrence.  Hoffman 
Ch.  (X.  Y.)  172:  Keiley  v.  Dusen- 
bury.  10  J.  &  S.  (X.  Y.  Super.  Ct.) 
238:  s.  c.  77  X.  Y.  597;  Van  Dyck 
v.  McQuade,  85  X.  Y.  616.  A  re- 
ceiver may  waive  service  of  process 
and  an  objection  to  the  jurisdiction 
founded  upon  residence.  Whitcomb 
v.  Hooper.  C.  C.  A.,  81  Fed.  946. 
It  was  held  that  a  receiver  who 
had  removed  an  action  brought 
against  him  in  a  State  court  could 
not  afterwards  object  that  the  Fed- 
eral court  had  not  acquired  juris- 
diction; Baggs  v.  Martin.  179  U. 
S.  206.  45  L.  ed.  155:  but  that  his 
appearance  and  filing  a  motion  to 
quash  an  attachment  in  the  State 
court,  without  leave  of  the  Federal 
court,  did  not  affect  the  prior  juris- 
diction of  the  Circuit  Court  of  the 
United  States.  Memphis  Saw  Bank 
v.  Houchens.  C.  C.  A.,  115  Fed.  96, 
112.  A  receiver  is  bound  by  an  ad- 
mission in  the  litigation  made  in 
good  faith  by  the  corporation  be- 
fore    his     appointment.       Perry     v. 


§  311] 


LITIGATION    BY    RECEIVERS. 


007 


off  not  authorized  bv  law.11    He  mav  be  allowed  to  discontinue 
without   costs    an    action   honestly   but   erroneously    begun    by 
him.12    The  court  will  not  direct  its  receiver  to  dismiss  an  eject- 
ment  suit  brought  by   him,   except   on   clear   proof   that    it   is 
impossible  for  him  to  succeed.13     The  rights  of  a  receiver  are 
in  general  no  greater  than  those  of  the  person  whose  estate  he 
holds.14    Thus,  a  receiver  of  an  insolvent  corporation  appointed 
in  a  creditor's  suit  cannot  "enforce  a  collateral  obligation  given 
to  a  creditor  or  to  a  body  of  creditors  by  a  third  person  for  the 
payment  of  the  debts  of  the  insolvent,"  15  for  example  a  statu- 
tory liability  of  stockholders  and  creditors.16     He  may  sue  to 
collect  an  unpaid  stock  subscription,17  and  to  set  aside  a  fraudu- 
lent transaction,  by  which  stock  was  cancelled   in   return   for 
the  delivery  to  the  stockholder  of  the  property.18     "It  is  the 
settled  doctrine  that  the  receiver  of  an  insolvent   corporation 
represents  not  only  the  corporation  but  also  creditors  and  stock- 
holders, and  that  in  his  character  as  trustee  for  the  latter,  he 
may  disaffirm  and  maintain  an  action  as  receiver  to  set  asi<l<- 
illegal   or  fraudulent  transfers  of  the   property  of  the  corpo- 
ration made  by  its  agents  or  officers,  or  to  recover  its  funds  or 
securities    invested'  or   misapplied."19      The    defendant   to    an 
action  by  the  receiver  of  an  insolvent's  estate  cannot  set  off 
claims  against  the  insolvent  which  have  been  assigned  to  him 


Godbe,  82  Fed.  141.  He  is  not, 
however,  bound  by  a  promise  of  his 
own  made  before  his  appointment. 
Stanton  v.  Ala.  &  C.  R.  Co.,  31  Fed. 
585. 

11  Van  Dyck  v.  McQuade,  85  N. 
Y.  616.  Cf.  Central  Tr.  Co.  v. 
Clark,  C.  C.  A.,  81  Fed.  269. 

12  St.  John  v.  Denison,  0  How. 
Pr.  (N.  Y.)  343;  Reeder  v.  Seely, 
4  Coweri,  548;  Arnoux  v.  Steinbren- 
ner,   1   Paige    (N.  Y.).  82. 

13  Pakradooni  v.  Storey  Cotton 
Co.,   151    Fed.  607. 

H.Tacobson  v.  Allen,  12  Fed.  454, 
457.  But  see  Hart  v.  Barney  &  S. 
Mfg.   Co..   7    Fed.   543. 

15  Wallace,  J.,  in  .Tacobson  v.  Al- 
len. 12  Fed.  454. 

WJacobson  v.  Allen,  12  Fed.  454. 


A  complaint  in  such  an  action  was 
held  not  to  be  bad  for  uncertainty 
because  it  did  not  show  whether 
the  suit  was  based  on  a  statute  or 
upon  an  agreement  made  to  define 
a  statutory  liability.  French  v. 
Busch.  18fl  Fed.  480. 

17  Kirkpatrick  v.  Am.  Alkali  Co., 
135   Fed.  230. 

18  Davis  v.  Gray.  16  Wall.  203, 
21  L.  ed.  447;  Aldrich  v.  Gray,  C. 
C.  A.,   147   Fed.  453. 

19  Andrews.  J.,  in  Atty.  Geif.  v. 
Guardian  M.  L.  Ins.  Co..  77  X.  Y. 
272.  275.  See  also  Gillet  v.  Mooly. 
3  N.  Y.  470.  488;  Talmadgo  v.  Pell, 
7  N.  Y.  328;  Whittlesey  v.  I)elaneyr 
73  N.  Y.  .171;  National  T.  Co.  v. 
Miller,  33  N.  J.  Eq.  165,  158;  lacob- 
son  v.  Allen.  12  Fed.  454.  455. 


998 


RECEIVERS. 


CI 


311 


since  the  application  for  the  receiver's  appointment.20  Ordin- 
arily, a  foreign  receiver  cannot  sue  until  he  has  obtained  an 
ancillary  appointment;21  but  he  may  sue  in  a  foreign  court, 
upon  a  judgment  which  he  has  recovered  in  the  court  that  ap- 
pointed him ; 22  or  to  recover  land  conveyed  to  him  as  receiver.23 
He  can  also  do  so  when  he  has  received  a  voluntary  assignment 
of  the  assets  of  the  insolvent,24  or  when  a  statute  vests  him  with 
the  title  to  the  same.25  In  a  court  that  has  appointed  an  ancil- 
lary receiver  it  will  be  presumed,  in  the  absence  of  allegations 
to  the  contrary,  that  a  suit  there  instituted  is  brought  in  his 
ancillary  capacity.26  A  substituted  trustee  can,  however,  sue 
in  a  foreign  jurisdiction,  even  though  the  trial  court  that 
appointed  him  required  him  to  give  a  bond  and  to  account  to 
itself  in  the  same  manner  as  a  receiver.27  It  seems  that  a  re- 
ceiver appointed  by  a  State  court  can  sue  in  the  Federal  court 
in  the  same  district.28  A  receiver  is  especially  favored  in  the 
enforcement  of  causes  of  action  arising  after  his  appointment. 
He  can,  upon  motion  or  petition  in  the  suit  wherein  he  is  ap- 
pointed, obtain  injunctions  to  prevent  disobedience  to  contracts 
made  with  him,29  or  prevent  interference  with  property  in  his 
possession,30  whether  the  person  enjoined  is  a  party  to  the  suit 
or  not,  even  if  he  be  a  state  officer ;  for  example,  a  tax  collector.31 


20  In  re  Van  Allen,  37  Barb.  (N. 
Y.)  225,  231;  Van  Dyck  v.  Quade, 
85  N.  Y.  616;  City  of  Shelbyville, 
Ky.  v.  Glover,  C.  C.  A.,  184  Fed. 
234. 

21  Supra,,  §  93. 

22  Wilkinson  v.  Culver,  25  Fed. 
639. 

23  Oliver  v.  Clarice,  C.  C.  A.,  100 
Fed.  402. 

24  Hawkins  v.  Glenn,  131  U.  S. 
319.  33  L.  ed.  184;  Lewis  v.  Clark, 
C.  C.  A.,  129  Fed.  570. 

25  Converse  v.  Mears,  162  Fed. 
767 ;    supra,   §   — . 

26  Sullivan  v.  Sheehan,  89  Fed. 
247. 

27  Glenn  v.  Soule,  22  Fed.  417; 
Holmes  v.  Sherwood,  16  Fed.  725; 
s.  c,  3  MeCrary,  405.  Cf.  Hale  v. 
Hardon,   89   Fed.   283,  287,   288. 


28  Porter  v.  Sabin,  149  U.  S. 
473,  37  L.  ed.  815;  Hegewieh  v.  Sil- 
ver, 140  N.  Y.  414.  But  see  Olney 
v.  Tanner,  10  Fed.  101. 

29  Walton  v.  Johnson,  15  Sim. 
352. 

30  Angel  v.  Smith,  9  Ves.  335 ; 
Lake  Shore  &  M.  S.  By.  Co.  v. 
Felton,  C.  C.  A.,  103  Fed.  227.  In 
Brady  v.  South  Shore  Traction  Co., 
197  Fed.  669,  an  injunction  was 
granted  against  competition  upon 
municipal  car  tracks,  to  use  which 
it  had  a  license  that  was  not  ex- 
clusive, through  the  operation  of 
cars,  bv  charging  lower  fares  than 
those  charged  by  the  receivers, 
when  it  Avas  claimed  that  the  rival 
company  had  no  power  to  use  the 
read. 

31  In   re  Tyler's   Petition,   149   U. 


311] 


LITIGATION    BY    RBCEIVEKS. 


999 


In  nearly  every  case,  interference  with  a  receiver  in  tbe  dis- 
charge of  his  duties  is  a  contempt  of  court,  even  when  no 
injunction  expressly  forbidding  it  has  been  issued.32  For 
example,  striking  laborers  have  been  adjudged  guilty  of  con- 
tempt for  attempting  to  prevent  employees  of  a  receiver  of  a 
railroad  from  working  for  him.33  The  court  will  not  enjoin 
the  employees  of  a  receiver  from  a  peaceable  strike,  unaccom- 
panied by  violence  or  intimidation.34  He  can  compel,  by  a 
summary  proceeding  in  the  court  that  appointed  him  the  deliv- 


S.  164,  37  L.  ed.  689;  Ex  parte 
Chamberlain,  55  Fed.  704;  Ex  parte 
ITuidekoper,  55  Fed.  709;  Ledoux  v. 
La  Bee,  83  Fed.  76] .  A  sale  for 
taxes  without  leave  of  the  court  is 
void.  Va.  T.  &  C.  Steel  &  I.  Co.  v. 
Bristol  Land  Co.,  88  Fed.  134.  A 
valid  tax  upon  the  assets  is,  it 
seems,  a  prior  lien  after  the  judi- 
cial costs.  Ledoux  v.  La  Bee,  83 
Fed.  761. 

32  Thompson  v.  Scott,  4  Dill.  508; 
Davis  v.  Gray,  16  Wall.  203,  218, 
21  L.  ed.  447,  452;  Royal  Tr.  Co.  v. 
Washburn  B.  &  I.  Ry.  Co.,  113  Fed. 
531;   infra,   §  428. 

33  Secor    v.    Toledo,    P.    &    W.    R. 
Co.,    7    Biss.    513;    King   v.    Ohio   & 
M.  Ry.  Co.,  7  Biss.  529;  In  re  Hig- 
gins,   27    Fed.    443.      "If    the    testi- 
mony   makes     it    clear     that    when 
these  parties  went  in  such  numbers, 
and  conducted  themselves  in  such  a 
way,    that    while    they    simply    said, 
'Please  get  off  this  engine,'   or  'We 
want    you    to    get    off    this    engine,' 
they    intended   to   overawe, — intend- 
ed,   by    the    demonstrations    which 
they    made,    to    impress    upon    the 
minds    of   the    engineers    and    train- 
men   that    personal    prudence    com- 
pelled   them    to    leave, — why,    then 
the    government    lias    made    out    its 
case.     As  my  brother  Treat  said   in 
a  similar   case,  that  we   had   before 
us    in    St.    Louis,    a    request,    under 


these    circumstances,    is    a     threat: 
Every   sensible  man  knows   what   it 
means,    and    courts    are    bound    to 
look  at  things  just  as  they   are,  to 
pass  upon  facts  just  as  they  are  de- 
veloped, to  treat  the  conduct  of  men 
just  as  it  is,  and  to  impute  to  them 
that  intention  which  their  acts  and 
their  conduct  disclose  was  their  in- 
tention."   Brewer,  J.,  U.  S.  v.  Kane, 
23   Fed.  748,  751,  citing  In  re  Doo- 
little,    23    Fed.    544,    518.      And    in 
another   case   the   same   judge    said: 
"Now,  if  a  party  engaged   in  a   law- 
ful  undertaking  unintentionally    in- 
terferes with  some  of  the  officers  of 
this    court,    and    obstructs    them    in 
the    discherge    of    their    duties,    this 
court  is  not  tenacious  of  any   mere 
prerogative,  and   would  let  such  ac- 
tion   pass    almost    without    notice: 
hut    where    parties    are    engaged    in 
that     which     is    of    itself     unlawful. 
in    doing   that    which    they    have    no 
right    to    do,    and    in    so    doing    ob- 
struct  the   officers   of   the   court   al- 
though      intending      no      contempt, 
that     is     a     very     different     thine." 
Brewer.  J.,   In   re   Doolittle.  23    Fed. 
544,  548. 

34  Arthur   v.    (lakes.   C.    C,    A..   -25 
L.R.A.    414.    <;:;    Fed.    310;    supra, 

§  275.  It  has  been  held  thai 
ordering  the  employees  of  a  receiv- 
er to  strike  ie  a  viola  I  ion  of  an  or- 
der   of    the    court    directing    tbe    re- 


1000 


RECEIVERS. 


[§    311 


cry  of  money  or  other  property  of  the  estate  in  the  possession  of 
a  stranger  to  the  snit,  who  claims  no  right  to  its  possession,35 
or  who  acquired  the  same  subsequent  to  his  appointment;  even 
though  the  stranger  claims  a  lien  thereupon  adverse  to  the  re- 
ceiver.36 Where  a  marshal  had  levied  on  property  previously 
in  the  possession  of  a  receiver  of  a  State  court,  the  receiver  was 
allowed  to  proceed  by  a  rule  to  take  the  possession  of  the  same, 
although  the  regular  practice  was  an  intervention  by  him.37 
It  has  been  held,  however,  that  the  court  should  not  enjoin  a 
stranger  to  the  suit  who  is  a  citizen  of  another  State  from  en- 
forcing legal  process  in  his  own  State  against  land  there  in  the 
possession  of  the  receiver.38  It  has  been  held  that  a  foreign 
receiver  cannot  sue  in  the  name  of  a  corporation  in  another 
district,  where  the  object  is  to  remove  the  funds  collected  to 
the  court  that  appointed  him  fro  administration,39  and  a  re- 
ceiver must  proceed  by  an  original  suit  to  recover  property 
held  by  a  stranger  to  the  litigation  under  a  claim  of  title.40 
And  he  cannot  ordinarily  maintain  a  bill  in  equity  when  he 
has  an  adequate  remedy  at  law.41  After  the  appointment  of 
ancillary  receivers  although  no  issue  has  been  joined  or  final 
decree  entered,  the  court  may  order  the  oral  examination  of  a 


ceiver  to  operate  a  manufacturim; 
plant.  U.  S.  v.  Weber,  134  Fed 
950. 

35  Miles  v.  New  So.  B.  &  L.  Ass'n, 
95   Fed.  019. 

36  Horn  v.  Pere  Marquette  R.  Co.. 
101   Fed.  620. 

37  Remington  P.  Co.  v.  Louisiana 
Pr.  &  Pub.  Co..  50  Fed.  287. 

38  Sebindelholz  v.  Cullum,  C.  C. 
A..  55  Fed.  885. 

39  Great  Western  Min.  &  Mfg.  Co. 
v.  Harris,  198  U.  S.  561,  25  Sup.  Ct. 
770.  49  L.  ed.  1163;  Fairview  Fluor 
Spar  &  Lead  Co.  v.  Ulrich,  C.  C.  A., 
192    Fed.   894. 

40  Davis  v.  Gray.  10  Wall.  203, 
21 S.  21  L.  ed.  447,  452:  Parker  v. 
Browning.  S  Paige  (X.  Y.j,  3SS.  35 
Am.  Dee.  717:  Xoe  v.  Gibson.  7 
Paige   (N.  Y.),  513.     Or  to  collect  a 


claim  of  the  corporation.  Fau 
Claire  v.  Payson,  C.  C.  A.,  107  Fed. 
557.  A  receiver  cannot  by  petition 
in  the  suit  obtain  an  injunction 
against  unlawful  discrimination  by 
a  railroad  company  which  is  not  a 
party  to  the  suit.  Wood  v.  N.  Y.  & 
N.  F.  R.  Co..  61  Fed.  236.  Where  a 
receiver  took  pay  for  corporate 
property  in  stock  which  he  kept 
himself,  crediting  his  fund  with 
price  in  cash,  held  that  he  could 
not  sue  individually  for  fraudulent 
representations  by  the  vendor  of 
the  stock.  Kenedy  v.  Benson.  54 
Fed.  836. 

41  Sewerage  and  Water  Board  of 
New  Orleans  v.  Howard,  C.  C.  A.. 
175  Fed.  555:  Robinson  v.  Mutual 
Reserve  Life  Ins.  Co..  175  Fed.  629. 


§    311]  LITIGATION    BY    RECEIVERS.  1001 

person  not  a  party  to  the  suit,  who,  the  receivers  and  the  com- 
plainant charge,  holds  assets  of  the  defendant.  Such  an  appli- 
cation will  not  he  denied  because  material  allegations  concern- 
ing such  property  are  made  upon  information  and  belief;  aor 
because  the  person  whose  examination  is  prayed  presents  an 
affidavit  positively  denying  that  he  holds  any  property  of  the 
defendant.  It  is  better  practice  to  require  notice  of  such  an 
application  to  be  served  upon  the  person  whose  examination 
is  applied  for.42  Since  a  proceeding  to  collect  assets  of  an 
estate,  whether  brought  in  personam  to  recover  damages,  or 
in  rem,  as  by  replevin  or  ejectment,  is  ancillary  to  the  principal 
suit,  a  receiver  appointed  by  a  Federal  court  can  bring  a  suit 
for  that  purpose  in  the  court  of  his  appointment  irrespective 
of  the  citizenship  of  the  parties  or  the  amount  involved.4 
Where  a  Federal  receiver  had  sued  in  a  State  court,  which  had 
the  power  to  entertain  equitable  defenses  in  actions  at  law.  the 
Federal  court  refused  to  direct  him  to  suspend  that  action,  in 
order  to  permit  the  defendant  to  prosecute  a  Federal  suit  in 
equity  to  establish  his  right  to  a  set  off,  although  the  courts  of 
the  two  jurisdictions  held  different  views  as  to  the  right  of  set 
off  under  the  facts;  but  the  Federal  court  stayed  the  suit  before 
it  until  the  State  court  had  disposed  of  the  action  which  had 
been  there  brought  before  the  defendant  sued  in  equity.44  lie 
cannot  sue  out  a  writ  of  error  from  the  Supreme  Court  of  the 
United  States  to  the  judgment  of  a  State  court,  except  in  a  ease 
where  that  might  be  done  by  an  individual.45  lie  has  the  righl 
of  appeal  from  an  appealable  order  or  decree  of  a  Federal  court 

42  BowUer  v.  Haight  &  Freese  Co.,  erees.    413;     Johnes    v.    Gkuagbton, 

U.   S.   C.   C,  S.   D.   N.  Y..   June  29,  -lac.     .->73;     Trcadwell     v.     Monvll. 

1905,  per  Lacombe.  J.  Roger  Foster  Chan.    X.    Y..    Aug.    1829    cited    in 

for  receivers  cited  Foster  v.  Towns-  Hoffman's  Ch,  IV  I.  156.    See'West- 

liend,  68  N.  Y.  203,  208;    Ch.   Ill,  1;lke  v-  Marrin,    176   Fed.  74J.  s.  c. 

§   10;    Daniell's   Ch.   Pr.,   First  Am.  *■    Y-    L-    -1"    *■*    7"    1!,,,,:    Mr"~ 

ed      1209,     1270;     Lord    Pelham    v.       s  ' 

'  '  43  White  v.   Ewing,   159   1.   S.  36, 

Duchess    of   New   Castle.    3    Swanst.  . 

4D  L.  ed.  6S  ;   Pope  v.  Louisville,  A. 
290,     n.;      Bird     v.     Littlehales,     3       A    &    (,     ,,     (.()      m   v    g    5n    4;{ 

Swanst.  300,  n.;   Dixon   v.  Smith.    1  L    e(}    sl4.  supr(K  §§  5.  51. 

Swanst.    457;     Anon.,    6    Yes.    287;  44  Frees    v.    John    Shields    Const. 

Angel  v.  Smith.  !)  Yes.  336;   Brooks  Co.,   145   Fed.    1020. 

v.  Greathed,   1    J.  &   W.    1 7 S  -.    Ham-  45  Bailsman    v.    Dixon,    173    U.    S. 

lvn  v.   Lee,   cited   in   Seton   on   De-  113,  43  L.  ed.  633. 


1003 


RECEIVERS. 


[§  311 


which  sustains  a  claim  antagonistic  to  the  rights  of  both  parties 
to  the  suit,  or  antagonistic  to  the  rights  of  either  party;  sub- 
ject to  the  limitation  that  he  may  not  question  any  order  or 
decree  which  distributes  burdens,  or  apportions  rights,  or  dis- 
tributes the  estate  in  his  hands  between  the  parties,  or  any 
clause  in  the  order  or  decree  appointing  him,  or  any  order  or 
decree  resting  in  discretion.46  Permission  to  appeal  at  the 
expense  of  the  estate  may  be  refused  to  a  receiver,  when  the 
highest  creditor  is  interested  against  such  an  appeal,47  and 
where  the  question  involved  is  doubtful,  the  court  may  refuse 
such  permission,  unless  creditors  give  security  for  the  expenses 
of  the  appeal,48  and  may  even  require  security  for  the  costs  of 
the  respondent.49  He  may  appeal  from  an  order  or  decree 
which  affects  his  personal  rights,  such  as  an  order  which  dis- 
allows his  fees  or  commissions ;  but  it  seems  that  he  cannot 
appeal  from  an  order  which  rests  in  the  discretion  of  the 
court ;  for  example,  an  order  which  discharges  or  removes  him, 
or  directs  him  in  the  administration  of  the  estate,  as,  for 
example,  to  issue  receiver's  certificates  or  to  make  improve- 
ments.50 "His  right  to  appeal  from  an  allowance  or  claim 
against  the  estate  does  not  necessarily  fail  when  his  receiver- 
ship is  terminated,  to  the  extent  of  surrendering  the  property 
in  the  possession  of  the  receiver." 51  Upon  an  appeal  in  a 
suit  brought  by  him,  in  the  absence  of  any  Federal  question, 
the  jurisdiction  is  considered  as  dependent  upon  the  difference 
of  citizenship  in  the  suit  in  which  he  was  appointed ;  and  the 
judgment  or  decree  of  the  Circuit  Court  of  Appeals  is  final. 


52 


46Bosworth  v.  St.  Louis  T.  R. 
Ass'n,  174  U.  S.  182,  186,  187,  43 
L.  ed.  941,  942,  943. 

47  Cook  v.  Anderson  Food  Co. 
(N.  J.  Chi),  55  Atl.  1042. 

48  Gay  v.  Hudson  River  El.  Pow- 
er Co.,  184  Fed.  631. 

49  Ibid. 

50  Bosworth  v.  St.  Louis  T.  R. 
Ass'n,  174  U.  S.  182,  189,  43  L.  ed. 
941,  944.  An  order  directing  the  re- 
ceiver of  a  railroad  to  construct 
and  maintain  gates  and  other  safe- 
guards at  the  crossing  of  another 
road,     in    accordance    with    a    con- 


tract made  between  two  railroad 
companies,  with  covenants  running 
with  the  land,  is  not  a  decree  for 
specific  performance,  but  merely  an 
interlocutory  order  affecting  the  ad- 
ministration of  the  estate  from 
which  he  cannot  appeal.  Hunt  v. 
111.  Cent.  Co..  C.  C.  A.,  96  Fed.  644. 
But  see  Felton  v.  Ackerman,  61 
Fed.  225. 

51  Bosworth  v.  St.  Louis  T.  R. 
Ass'n,  174  C.  S.  182.  189,  43  L.  ed. 
941.  944. 

52  Pope  v.  Louisville,  N.  A.  &  C. 


§  312] 


DUTIES   OF   RKCKIVKIJS. 


1003 


A  receiver  is  presumed  to  represent  all  parties  to  tie  suit,  and 
he  cannot  object  because  other  par-ties  have  no  notice  of  an 
application  duly  served  on  him  ; 53  although,  of  course,  the  court 
may  listen  to  a  suggestion  of  that  nature  by  him.      \<>  action 

by  the  directors  or  stockholders  of  a  corporation  after  the 
appointment  of  a  receiver  can  release  a  claim  which  it  owns,54 
or  bind  it  by  a  contract.55 

§  312.  Duties  of  receivers.  A  receiver  holds  the  prop- 
erty of  which  he  is  given  the  cave  in  trust  for  all  persons  inter- 
ested therein,  whether  parties  to  the  suit  or  not.1  provided  that 
they  do  not  claim  it  by  a  title  paramount  to  his  own.2  His 
duties,  therefore,  are  substantially  those  of  a  trustee,  although 
his  powers  are  usually  more  limited;  and  the  decisions  concern- 
ing the  duties  and  liabilities  of  trustees,  executors,  adminis- 
trators, and  assignees  in  bankruptcy  and  insolvency  are  often 
of  service  in  determining  those  of  a  receiver.3  A  receiver's 
first  duty  after  his  appointment  is  to  take  possession  of  the 
property  entrusted  him  by  the  order,  using  all  the  powers 
therein  given  him.4  If  any  of  it  is  under  lease  he  should 
notify  the  tenants  of  his  appointment  and  demand  that  they 
attorn  to  him.5  Ordinarily  as  soon  as  he  has  obtained  posses- 
sion of  all  the  estate  that  consists  of  personal  property  he 
should  make  an  inventory  thereof;6  he  should   investigate  all 


Ry.   Co.,    173   U.   S.   573,    43    L.   ed. 
814. 

53  McLeod  v.  Now  Albany.  C.  C.  A., 
GO  Fed.  378.  As  to  the  right  of  a 
creditor  to  enforce  a  cause  of  ac- 
tion owned  by  a  receiver,  see  in- 
fra, §  313. 

54  Stewart  v.  Laberee,  0.  C.  A., 
185  Fed.  471. 

55  Barker  v.  Southern  Bldg.  & 
Loan  Ass'n..  181    Fed.  030. 

§  312.  1  Davis  v.  Cray,  10  Wall. 
203,  217,  218,  21  L.  ed.  447,  452; 
Central  T.  Co.  v.  Wabash.  St.  L.  & 
P.  Ry.  Co..  23  Fed.  868;  Hamilton 
v.  David  C.  Beggs  Co..  171  Fed.  157. 

2  Davis  v.  Duke  of  Marlborough, 
2     Swanst.     108,     118,     137,     138; 


Georgia  v.  Atlantic  &  G.  R.  Co..  3 
Woods,   434. 

3  See,  for  example.  Com.  v. 
Franklin  Ins.  Co.,  115  Mass.  2.78; 
People  v.  National  T.  Co.,  82  X. 
Y.   2S3. 

4 Darnell's  Ch.  Pr.  (2d  Am.  ed.) 
1987. 

5  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1987. 

6  Lewin  on  Trusts  (0th  ed..  Lon- 
don. 1875),  1S4;  England  v.  Downs. 
0  Beav.  209.  Cf.  Williamson  v. 
Wilson.  1  Bland  ( Md.  i .  41S.  430. 
But  see  Guaranty  Tr.  Co.  v.  .Met. 
St.  Ry.  Co..  L68  Fed.  937.  afi'd.  C. 
('.  A..  177  Fed.  925,  quoted  infra, 
§  394. 


1004 


RECEIVERS. 


[§  312 


pledges  and  mortgages  of  any  part  of  the  assets7  and  cause 
)  the  property  in  his  hands  to  he  insured  against  fire.8  All 
moneys  that  he  receives  he  should  either  pay  into  court  or 
deposit  in  a  hank  to  the  credit  of  himself  as  receiver,  in  a  separ- 
ate account  from  that  for  his  private  deposits.9  In  remitting 
money  from  one  place  to  another,  he  may  do  so  by  using  the 
ordinary  means,  provided  that  he  uses  due  care.10  He  will  be 
personally  liable  for  all  loss  to  the  estate  caused  by  his  making 
any  other  disposition  of  the  funds  collected  by  him.11  It  is  ad- 
visable for  a  receiver  to  take  a  receipt  for  all  sums  of  money 
exceeding  twenty  dollars  paid  out  by  him.  By  so  doing,  and 
by  using  such  receipts  as  vouchers,  he  will  have  less  difficulty 
in  passing  his  accounts.12  A  receiver  should  so  keep  the  estate 
in  his  hands  that  it  can  easily  be  traced,  delivered  up,  or  ac- 
counted for.13  When  he  is  carrying  on  a  mercantile  business, 
he  must  keep  cost  sheets,  in  order  that  whether  he  is  making 
a  profit  or  loss  may  readily  be  ascertained.14  He  should,  at 
least  as  often  as  once  a  year,  account  and  pay  into  court  all 
the  money  which  he  has  received,  together  with  the  profits 
thereof,  less  all  necessary  or  authorized  expenditures,  and  such 
compensation  as  the  court  allows  him.15  If  he  receives  a  con- 
siderable sum  of  money  during  the  interval  between  the  regular 
times  for  his  accounting,  it  seems  that  he  should  apply  to  the 
court  for  directions  concerning  its  investment ; 16  and  in  general. 


7  Wise  v.  Williams,  102  Fed.  ]61. 

8  Thompson  v.  Phoenix  Ins.  Co., 
136  V.  S.  287,  203,  34  L.  ed.  408, 
41],    per   Mr.   Justice    Harlan. 

9  Salway  v.  Salway,  4  Russ.  00; 
s.  c,  2  R.  &  M.  215;  Wren  v.  Kir- 
ton,  11  Ves.  377;  Hinckley  v.  Rail- 
road Co.,  100  U.  S.  153,  157,  23  Li 
ed.  591,  593.  For  a  case  where  a 
receiver  was  held  responsible  for 
money  lost  by  the  failure  of  a  bank, 
see  Fikener  v.  Bott,  (Ky.)  47  S. 
W.  251. 

lOKniorht  v.  Lord  Plimouth,  3 
Atk.  480;    s.  c,   1    Dickens,   120. 

11  Salway  v.  Salway.  4  Russ,  60; 
s.  c.  2  R.  &  M.  215;  Rowfh  v.  Frw- 
ell,   3  Ves.  565. 


12  Remsen  v.  Remsen,  2  J.  Ch. 
(X.  Y.)    495,  501. 

13  Williamson  v.  Wilson,  1  Bland 
(Md.)i,  418;  Hinckley  v.  Railroad 
Co.,  100  U.  S.  153,  157,  25  L.  ed. 
591,  593;  Atty.  Gen.  v.  North  Am. 
L.  I.  Co.,  89  N.  Y.  94.  107.   108. 

1*  Gutterson  &  Gould  v.  Lebanon 
Iron  &  Steel  Co.,  151  Fed.  72. 

iSDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1992:  Shaw  v.  Rhodes,  2  Russ.  539. 
See  §  319. 

16  Shaw  v.  Rhodes,  2  Russ.  539; 
Hicks  v.  Hicks,  3  Atk.  274;  Earl 
of  Lonsdale  v.  Church,  3  Brown  Ch. 
C.  41. 


312] 


DUTIES  OF  RECEIVERS. 


1005 


he  should  apply  for  instructions  whenever  any  unexpected 
event  occurs  of  which  advantage  may  he  taken  for  the  benefit 
of  the  state,  or  which  necessitates  active  measures  to  preserve 
the  state  from  loss.17  He  should  pay  no  creditor  of  the  estate 
without  authority  from  the  court;  and  even  an  ex  parte  order 
authorizing  such  payment  will  be  no  protection  to  him  when 
granted  upon  the  inaccurate  representation  that  there  were 
sufficient  funds  to  make  the  payments  without  detriment  to  the 
business.18  He  cannot  act  inequitably,  even  for  the  benefit  of 
the  estate;19  and  if  money  is  paid  him,  which  in  equity  be- 
longs to  another,  he  can  be  compelled  to  pay  the  same  to  its 
rightful  proprietor.20  Any  protit  which  he  may  make  from 
the  estate  belongs  to  the  finally  successful  party,  or  to  him  to 
whom  the  surplus,  after  the  payment  of  prior  demands,  is 
finally  directed  to  be  paid.21  If  he  uses  the  property  over  which 
he  has  been  appointed  in  his  private  business,  he  must  pay  the 
estate  for  its  use;  22  and  the  same  may  be  charged  to  be  subject 
to  a  constructive  trust  after  its  transfer  by  him  to  one  who  is 
not  a  hona  fide  purchaser.23  It  is  his  duty  to  exhibit,  to  claim- 
ants against  the  fund,  all  entries  in  the  books  of  the  corporation. 
which  relate  to  their  respective  claims.24  A  stockholder  who, 
in  good  faith,  asks  for  an  examination  of  the  books,  in  order 
to  enable  him  to  determine  whether  a  proposed  plan  of  re- 
organization is  desirable,  should  be  accorded  such  inspection 
under  proper  regulations  as  to  time  and  circumstance,  so  as 
not  to  interfere  either  with  the  transaction  of  the  receiver's 
duties  or  with  the  inspection  of  other  stockholders.25     "In  every 


17  Shaw  v.  Rhodes.  2  Riis*  539; 
Hicks  v.  Hicks,  3  Atk.  274;  Earl 
•ci  Lonsdale  v.  Church,  3  Bro\ui  Cli. 
<\  41. 

iSGibbs  v.  David,  L.  R.  20  Eq. 
373. 

»Skud  v.  Tillinghast,  C.  C.  A., 
195  Eed.   1. 

20  Whelan  v.  Enterprise  Transp. 
■Co.,  175  Fed.  212. 

21  But  see  Whitesides  v.  Lefferty, 
3   Humph.    (Tenn.)    3  50. 

22  Battaile  v.  Fisher,  36  Miss. 
321.     When,   bv   the  use  of   the   as- 


sets, he  elects  himself  president  of 
another  corporation,  he  must  ac- 
count to  the  beneficiaries  of  his 
trust  for  all  profits  that  he  receives 
therefrom.  Strang  v.  Edson,  C.  C. 
A.,  19,8  Fed.  813. 

23  Aminon-Stivers  Min.  Co.  v. 
Great  Northern  Mining  &  Devel- 
opment  Co..    119    Fed.   377. 

24  Bowker  v.  Haight  &  Freese  Go., 
140  Fed.  796. 

26  Chable  v.  Nicaragua  C.  C.  Co., 
59  Fed.  840. 


1006 


KECEIVERS. 


[§  312 


case  of  doubt,  it  is  well  for  a  receiver  to  refrain  from  action 
until  he  may  obtain  the  instruction  of  the  court,  whose  officer 
he  is."26     It  is  not  the  duty  of  a  receiver  to  take  part  in,  or 
to  promote   any  plan  of  reorganization.27     "If  rival  and  dis- 
cordant interests  between  the  parties  interested  in  the  property 
produce   conflicting  plans,   upon   which   they  cannot    agree,    it 
is  the  receiver's  duty  to  stand  absolutely  neutral  between   all. 
giving  to  no  one  any  preference  or  advantage  over  the  other, 
and    according  equal   facilities   to   every   stockholder,    whether 
he  holds  a  single  share  or  10,000."  28     It  is  usually  considered 
improper  for  a  receiver  to  retain  as  his  counsel  one  who  has 
previously  acted  in  the  suit  for  one  of  the  parties.29     But  it  is 
proper  for  a  receiver  appointed  in  a  suit  brought  by  a  creditor 
for  the  satisfaction  of  his  own  debt  alone,  to  retain  the  attorney 
of  the  complainant.30     A  receiver  of  a  railroad  is  a  common 
carrier.81     He  is  guilty  of  impropriety,  for  which  he  may  be 
removed,  when  he  discriminates  between  different  persons  who 
use  the  railway ; 32  and  he  may  be  obliged  to  repay  such  sums 
of  money  as  he  has  exacted  from  shippers  of  freight  by  un- 
lawful discriminations  against  them.33     A  receiver  cannot  re- 
sign without  the  permission  of  the  court  which  appointed  him.34 
"Whenever  in  any  case  pending  in  any  court  of  the  United 
States,  there  shall  be  a  receiver  or  manager  in  possession  of  any 


26  ibid. 

27  [bid. 

28  ibid. 

29  Ryckman  v.  Parkins,  5  Paige 
(X.  Y.),  543;  Blair  v.  St.  Louis, 
H.  &  K.  R.  Co..  20  Fed.  348.  In 
one  ease  the  court  refused  to  al- 
low the  receiver  to  retain  a  rel- 
ative who  had  previously  prac- 
ticed elsewhere,  and  had  come  in- 
to the  Circuit  apparently  for  the 
purpose  of  acting  as  counsel  for 
the  receiver.  Blair  v.  St.  Louis, 
N.  &   K.  R.  Co.,  20  Fed.  348. 

30Shainwald  v.  Lewis.  8  Fed. 
878.  See  Davis  v.  Chattanooga  U. 
Ry.  Co..  05  Fed.  395. 

31  Beers  v.  Wabash,  St.  L.  &  P. 
Ry.  Co.,  34  Fed.  244. 


32  Haiidy  v.  Cleveland  &  M.  R- 
Co..  31  Fed.  089.  See  Missouri  Pac. 
Ry.  Co.  v.  Texas  &  P.  Ry.  Co.,  30 
Fed.  2;  Cutting  v.  Florida  Ry.  & 
Nav.  Co.,  43  Fed.  747.  It  has  been 
said  that  a  contract  between  a  re- 
ceiver of  a  railroad  company  and' 
a  shipper  for  the  payment  of  a  re- 
bate upon  an  intrastate  shipment, 
is  not  illegal.  Bibber-White  Co.  v. 
White  River  Val.  El.  R.  Co.,  175 
Fed.   470. 

33  Cutting  v.  Florida  Ry.  &  Nav. 
Co..  43   Fed.  747. 

34Daniell's  Ch.  Pr.    (2d  Am.  ed.) 
2002.      See   In    re    Matter   of   Jones,. 
4  Sandf.  Ch.   (X.  Y.)   615. 


§  313] 


LIABILITY  OF  RECEIVERS. 


1007 


property,  such  receiver  or  manager  shall  manage  anil  operate 
such  property  according  to  the  requirements  of  the  valid  laws 
of  the  State  in  which  such  property  shall  be  situated,  in  the 
same  manner  that  the  owner  or  possessor  thereof  would  be 
bound  to  do  if  in  possession  thereof.  Any  receiver  or  manager 
who  shall  wilfully  violate  the  provisions  of  this  section  shall  be 
fined  not  more  than  three  thousand  dollars  or  imprisoned  qo1 
more  than  one  year."  35 

§  313.  Liability  of  a  receiver.  The  liability  of  a  receiver 
is  in  many  but  not  all  respects  analogous  to  those  of  a  trustee. 
He  is  liable  to  all  persons  interested  in  the  estate  in  his  hands 
for  any  damage  resulting  to  them  from  any  breach  of  duty  by 
him,  whether  intentionally1  or  through  negligence.2  It  has 
ben  held  that  he  is  personally  responsible  for  funds  of  the  trust 
embezzled  by  his  clerks.3  He  is,  however,  free  from  liability 
to  the  parties  to  the  suit  on  account  of  any  act  performed  in 
obedience  to  an  order  of  the  court  within  its  jurisdiction,  and 
not  obtained  by  fraud,  until  the  same  has  been  vacated  upon 
appeal  or  otherwise.4  A  receiver's  liability  to  strangers  is 
much  more  limited  than  that  of  a  trustee.5  He  is  not  liable 
personally  upon  a  covenant  entered  into  in  his  official  capacity 
with  the  sanction  of  the  court.6 


35Jud.  Code.  §  65,  36  Stat.  1087, 
re-enacting  in  substance  25  St.  at 
L.,  §  2,  p.  436;  24  St.  at  L.,  §  2, 
p.  554.  But  see  Royal  Tr.  Co.  v. 
Washburn  B.  &  I.  R.  Ry.  Co.,  113 
Fed.  531.  It  has  been  held  that  a 
receiver  is  subject  to  the  Act  of 
March  4,  1907  (34  St.  at  L.  1416, 
c.  2030.  Comp.  St.  Supp.  1911, 
p.  1321),  forbidding  a  common  car- 
rier to  permit  employees  of  a  cer- 
tain class  to  remain  on  duty  for 
more  than  sixteen  consecutive 
hours;  but  that  he  is  ordinarily  not 
personally  liable  for  the  fine  im- 
posed for  its  violation  (I'.  S.  v. 
Ramsey,  C.  C.  A.,  197  Fed.  144); 
and  that  after  the  appointment  of 
a  receiver  of  an  insolvent  corpora- 
tion, the  company  is  not  liable  to 
the  Corporation  Income  Tax.    Penn- 


\1  though  it  may  be  that  in 


sylvania  Steel  Co.  v.  N.  Y.  City  Ry. 
Co.,  C.  C.  A.,  198  Fed.  774.  As  to 
the  liability  of  receivers  under  Fed- 
eral statutes,  see  Erb  v.  Morasch, 
177  U.  S.  584,  44  L.  ed.  897;  U.  S. 
v.  DeCoursey,  82  Fed.  302. 

§313.  1  Knight  v.  Lord  Plim- 
outli.  3  Atk.  4S0.  481;  Kaiser  v. 
Kellar,  21  Iowa.  95,  97;  Koontz  v. 
Northern  Bank.  16  Wall.  196.  202. 
203,  21  L.  ed.  465,  468;  infra,  §  321. 

2Skerrett's  Minors,  2  Hog.  192. 
Infra,  §  321. 

3  Gunii  v.  Ewan.  93  Fed.  80. 

4  llolcombe  v.  Johnson,  27  Minn. 
353. 

5  See  Taylor  v.  Davis.  110  U.  S. 
330.  335.  28  L.  ed.  163,  165. 

6  Livingston  v.  Pettigrew,  7  Lans. 
(N.  Y.)  405;  Newman  v.  Daven- 
port,  9   Baxt.    (Tenn.)    538;    Taylor 


1008 


RECEIVERS. 


[§  313 


the  courts  of  Massachusetts  he  is  personally  responsible  for 
rent  when  he  retains  possession  of  a  leasehold,7  in  the  Federal 
courts  he  is  not  liable  in  such  a  case,  and  the  court  may  au- 
thorize him  to  abandon  a  leasehold  after  experience  has  shown 
that  it  is  unprofitable  to  the  estate,  and  then  he  incurs  no  per- 
sonal liability,  and  the  estate  is  responsible  only  for  the  use  of 
the  property  during  the  time  that  he  has  remained  in  posses- 
sion,8 according  to  its  rental  value.9  The  payment  under  orders, 
of  the  court  of  the  rent  fixed  by  the  lease,  is  not  an  assumption 
thereof.10     lie   has   a   reasonable   time   within   which    to   elect 


v.  Davis,  110  U.  S.  330,  335,  28  L. 
ed.  163,  165;  Central  Tr.  Co.  v. 
Wabash,  St.  L.  &  P.  Ry.  Co.,  34 
Fed.  259. 

7  Com.  v.  Franklin  Ins.  Co.,  115 
Mass.  278;  People  v.  National  Tr. 
Co.,  82  N.  Y.  283.  Cf.  People  v. 
Univ.  L.  Ins.  Co.,  30  Hun  (37  N. 
Y.  S.  C.  R.),  142;  Wells  v.  Hig- 
gins,  132  N.  Y.  459.  But  see  Stokes 
v.  Hoffman  House,  1(57  N.  Y.  554, 
53  L.R.A.  870;  s.  c,  46  N.  Y.  App. 
D.  120. 

8  St.  Joseph  &  St.  L.  R.  Co.  v. 
Humphreys,  145  U.  S.  105,  36  L. 
ed.  640;  Ames  v.  Union  Pac.  Ry. 
Co.,  60  Fed.  966;  U.  S.  Tr.  Co.  v. 
Wabash  W.  Ry.  Co.,  150  U.  S.  287, 
37  L.  ed.  1085;  Seney  v.  Wabash 
W.  Ry.  Co.,  150  U.  S.  310,  37  L. 
ed.  1092;  Quincy,  M.  &  P.  Ry.  Co. 
v.  Humphreys,  145  U.  S.  82.  36  L. 
ed.  632;  Kneeland  v.  Am.  L.  &  Tr. 
Co.,  136  U.  S.  89,  34  L.  ed.  379; 
Pennsylvania  Steel  Co.  v.  N.  Y. 
City  RyT  Co.,  165  Fed.  459;  s.  c, 
175  Fed.  812;  s.  c.  176  Fed.  471; 
s.  c,  190  Fed.  609,  615;  s.  c,  192 
Fed.  135;  Coy  v.  Title  Guarantee 
&  Tr.  Co..  198  Fed.  275.  Cf.  3  Co- 
lumbia Law  Rev.  53.  For  cases 
where  it  was  held  that  the  court 
had  adopted  and  assumed  the  lease, 
see  Central  R.  &  R.  Co.  of  Ga.  v. 
Farmers'  L.  &  Tr.  Co.,  79  Fed.  158; 


Mercantile  Tr.  Co.  v.  Atlantic  &  P. 
R.  Co.,  C.  C.  A.,  88  Fed.  140:  s.  c, 
as  U.  S.  Tr.  Co.  v.  M.  Tr.  Co.,  C. 
C.  A..  80  Fed.  18;  Central  T.  Co. 
v.  Continental  Tr.  Co..  C.  C.  A.,  86 
Fed.  517;  U.  S.  Tr.  Co.  v.  Mercan- 
tile Tr.  Co.,  88  Fed.  140.  Dayton 
Hydraulic  Co.  v.  Felsentliall,  C.  C. 
A.,  116  Fed.  961.  The  question 
whether  the  court  should  adopt  the 
lease  was  said  to  be  administrative 
rather  than  judicial  in  its  nature, 
and  not  to  be  reviewed  by  an  ap- 
pellate tribunal,  unless  there  was  a 
manifest  abuse  of  discretion.  Mer- 
cantile Tr.  Co.  v.  Farmers'  L.  &  Tr. 
Co.,  C.  C.  A.,  81  Fed.  254.  Certio- 
rari denied,  168  U.  S.  710,  42  L. 
ed.  1213. 

9  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry..Co.,  190  Fed.  609.  615; 
Re  Adams  Cloak,  Suit  &  Fur  House, 
199  Fed.  337.  In  Pennsylvania 
Steel  Co.  v.  X.  Y.  City  Ry.  Co.,  175 
Fed.  812,  the  receivers,  while  in 
possession,  were  directed  to  pay  the 
rent,  although  the  same  was  con- 
sidered to  be  exorbitant.  See  High 
on  Receivers,  (4th  ed.)  §§  273, 
394a.  In  re  Grignard  Lithographic 
Co..  155  Fed.  699.  holding  that  the 
landlord  could  not  recover  for  pow- 
er which  was  not  used  by  the  trus- 
tee in  bankruptcy. 

10  Pennsylvania    Steel    Co.    v.    N. 


313] 


LIABILITY  OF  RECEIVERS. 


1009 


whether  to  keep  the  lease  as  an  asset  of  the  estate.11  Where  a 
receiver  retained  possession,  without  giving  security,  after  an 
order  of  the  court  which  appointed  him  directed  that  he  either 
surrender  the  property  or  give  security  for  the  rent ;  it  was  held 
that  he  was  personally  liable.12  It  has  been  held  that  the  re- 
ceiver cannot  be  dispossessed  for  nonpayment  of  rent  by  a  peti- 
tion in  the  suit  of  his  appointment,13  but  only  by  an  independent 
action  of  ejectment14  unless  a  State  statute  authorizing  sum- 
mary proceedings  in  landlord  and  tenant  cases  exists  and  is 
followed.15  The  same  principles  apply  to  a  lease  of  personal 
property  such  as  railroad  cars;16  and  it  seems  to  building  con- 
tracts17 and  other  executory  contracts  the  performance  of  which 
is  incomplete  when  the  receiver  is  appointed.18  Receivers  of  a 
street  railroad  system  may  be  authorized,  after  notice  to  the 
public,  to  discontinue  the  exchange  of  transfers,  although  t In- 
corporation had  contracted  to  make  them.19  A  receiver  is  not 
personally  liable  for  a  loss  resulting  from  his  conduct  of  the 
business,  when  he  was  not  guilty  of  negligence  or  misconduct 
and  acted  under  the  direction  of  the  court  without  objection 


Y.  City  Ry.  Co.,  176  Fed.  471;  s.  c, 
175  Fed.  812:  s.  c,  192  Fed.  135. 
where  a  temporary  agreement  as  to 
the  rent  was  made  with  the  lessor. 

11  Walton  v.  Staflord,  14  App.  D. 
(X.  Y.)  310.  Ten  (Pennsylvania 
Steel  Co.  v.  N.  Y.  City  Ry.  Co.,  190 
Fed.  609,  015)  and  nine  (St.  Joseph 
and  St.  Louis  R.  R.  Co.  v.  Hum- 
phreys, 145  C.  S.  105.  36  L.  ed.  640) 
month's  have  been  held  to  be  not 
unreasonable  periods  of  time.  It 
was  said  that  it  was  not  unreason- 
able to  preserve  the  integrity  of  the 
system  until  its  sale,  by  continuance 
in  possession  of  the  leased  property. 
Pennsylvania  Steel  Co.  v.  X.  Y. 
City  Ry.  Co.,  1.76  Fed.  471.  See  au- 
thorities cited   in   note  8.  supra. 

12  Brooklyn  Improvement  Co.  v. 
Lewis.    136   App.    Div.    (X.   Y. )    8(11. 

13  Johnson  v.  Lehigh  Valley  Trac- 
tion  Co.,   130  Fed.   932. 

14  Ibid. 

Fed.   Prac.   Vol.   I.— 64. 


15  See  Prince  v.  Schlesinger  X.  Y. 
S.   (Trial  term,  Nov.  28,  1905.) 

16  Sunflower  Oil  Co.  v.  Wilson, 
142  U.  S.  313,  35  L.  ed.  1025.  Cf. 
Piatt  v.  Phila.  &  R.  R.  Co.,  C.  C. 
A.,  84  Fed.  535;  Thomas  v.  Western 
Car  Co..  149  U.  S.  95.  37  L.  ed.  663: 
Farmers'  L.  &  Tr.  Co.  v.  Chicago, 
etc.,  Ry.  Co.,  42  Fed.  6:  Easton  v. 
Houston  &  T.  C.  Ry.  Co.,  38  Fed. 
784. 

17  Commonwealth  Roofing  Co.  v. 
Xortli  Am;  Tr.  Co..  C.  C.  A..  135 
Fed.  9S4. 

18  See  Manhattan  Tr.  Co.  v.  Sioux 
City  &  X.  R.  Co..  81  Fed.  50:  Cen- 
tral Tr.  Co.  v.  Fast  Tenn.  Land  Co., 
79  Fed.  19:  Missouri  &  K.  Eriterur- 
b'ari  Ry.  Co.  v.  Edson,  C.  C.  A..  198 
\u-d.  819. 

19  Re    Dry    Dock    R.    R.,    165    Fed 
487. 


1010 


RECEIVERS. 


[§   313 


by  the  parties  in  interest.20  A  receiver  is  personally  liable  to 
strangers  for  trespass,21  fraud,22  or  other  wilful  act,  although 
performed  under  color  of  his  office.  So,  if  by  mistake,  though 
honestly,  he  takes  possession  of  the  property  of  another,  he  is  per- 
sonally liable.23  The  fact  that  he  does  so  under  authority  of  an 
order  of  the  court  will  not  justify  him  as  against  a  person  who 
was  not  a  party  to  the  suit  or  proceeding  in  which  the  order 
was  granted.24  In  all  of  such  cases  it  seems  that  he  can,  inde- 
pendently of  the  statute,  be  sued  without  leave  of  the  court 
which  appointed  him.25  A  person  who,  without  having  been 
lawfully  appointed,  assumes  to  act  as  a  receiver,  has  all  the  lia- 
bilities of  one  duly  appointed.26  A  receiver,  even  when  acting  as 
a  common  carrier,  is  not  liable  personally  for  injuries  caused 
by  the  negligence  of  his  employees,  when  he  exercised  reasonable 
care  in  their  selection.27  The  only  remedy  of  the  person  thus 
aggrieved  is  by  an  action  against  the  receiver  in  his  official 
capacity,  seeking  satisfaction  out  of  the  estate.28  When,  before 
a  suit  is  brought  against  him,  the  receiver  has  been  discharged 
and  the  estate  sold,  or  returned  to  its  owner,  it  has  been  held 
that  he  has  ordinarily  no  remedy  in  a  Federal  court  except 
against  the  employee,  unless  one  has  been  preserved  for  him  by 


20  Pusey  &  Jones  v.  Pennsylvania 
Paper  Mills,   173   Fed.  629. 

21  In  re  Young,  7  Fed.  855;  Olney 
v.  Tanner,  10  Fed.  101;  Barton  v. 
Barbour,  104  U.  S.  126,  134,  26  L. 
ed.  672,  676.  For  a  case  where  a 
receiver  was  held  not  liable  for 
malicious  prosecution,  see  YVidmey- 
•er  v.  Felton.  95  Fed.  926. 

22  Bank  of  Montreal  v.  Thayer,  7 
Fed.  622. 

23  Barton  v.  Barbour,  104  U.  S. 
126.  134,  26  L.  ed.  672,  676;  Curran 
v.  Craig,  22  Fed.   101. 

24  Curran    v.    Craig,    22   Fed.    101. 

25  Barton  v.  Barbour,  104  U.  S. 
126.  134.  26  L.  ed.  672.  676.  In  re 
Young,  7  Fed.  855;  Bank  of  Mon- 
treal v.  Thayer.  7  Fed.  622;  Curran 
v.  Craig,  22   Fed.   101.     But  see  As- 


ton   v.    Heron,    2    Myl.    &    K.    390; 
Chalie  v.  Pickering,  1  Keen,  749. 

26  Wood  v.  \Tood,  4  Russ.  558. 

27  Kennedy  v.  I.  C.  &  L.  R.  Co., 
3  Fed.  97;  Union  Tr.  Co.  v.  Chi- 
cago &  L.  H.  Ry.  Co.,  7  Fed.  513, 
516;  Davis  v.  Duncan,  19  Fed.  477; 
Farmers'  L.  &  Tr.  Co.  v.  Central  R. 
R.  of  Iowa,  2  McCrary,  181;  s.  c, 
7  Fed.  537 ;  Thompson  v.  No.  Pac. 
Ry.  Co.,  93  Fed.  384,  389;  Hanlon 
v.  Smith,  175  Fed.  192.  See,  how- 
ever.  Kain   v.   Smith,  80  N.  Y.  458. 

28  Kennedy  v.  1.  C.  &  L.  R.  Co., 
3  Fed.  97;  Farmers'  L.  &  Tr.  Co. 
v.  Central  R.  R.  of  Iowa,  2  Mc- 
Crary, 181  ;  s.  p.,  7  Fed.  537;  Union 
Tr.  Co.  v.  U.  &  L.  H.  Ry.  Co.,  7 
Fed.  513,  510;  Gray  v.  Grand  Trunk 
W.  Ry.  Co..  C.  C.  A.,  150  Fed.  736. 


§  314] 


SUITS  A«AIXST  RECEIVERS. 


101  1 


the  court.29    For  the  owner  of  the  property  is  noi  liable  for  fcb« 
negligence  of  the  receiver's  employees.*"     For  this  reason  it  is 

customary  to  insert  in  the  order  for  the  sale  in  bulk  oi  prop- 
erty in  the  possession  of  a  receiver  thai  the  purchaser  shall 
take  it  subject  to  all  claims  for  injuries  caused  while  it  was 
managed  by  the  receiver.31  Such  a  provision,  although  noi  men- 
tioned in  the  order  for  the  sale,  may  be  inserted  as  a  condition 
in  the  order  confirming  the  sale,  and  the  purchaser,  after  tak- 
ing possession  under  the  latter  order,  is  estopped  from  disputing 
the  validity  of  the  condition.32  Claims  of  this  nature  are  usual- 
ly enforced  in  the  suit  in  which  the  receiver  was  appointed. 
The  discharge  of  a  receiver  until  revoked  relieves  him  from  all 
liabilitv  to  those  who  had  an  opportunity  to  he  heard  upon  the 


34 


motion  for  his  discharge 

§  314.  Suits  against  receivers.  By  the  former  practice, 
following  the  old  chancery  rule,  a  receiver  could  not  be  sued 
without  the  permission  of  the  court  that  appointed  him.1  An 
act  of  Congress  has  changed  the  practice  as  follows:  "Every 
receiver  or  manager  of  any  property  appointed  by  any  court  of 
the  United  States  may  be  sued  in  respect  of  any  act  or  trans- 


29  Davis  v.  Duncan,  19  Fed.  477; 
White  v.  Keokuk  &  D.  M.  Ry.  Co., 
52  Iowa.  97.  See  §  394,  infra.  But 
see  Gray  v.  Grand  Trunk  Ry.  Co., 
C.  C.  A.,  156  Fed.  730.  For  cases 
where  a  State  court  gave  a  remedy, 
see  Texas  &  Pac.  Ry.  Co.  v.  John- 
son. 1.11  U.  S.  8],  38  L.  ed.  81; 
Texas  Pac.  Ry.  Co.  v.  Griffin,  70 
Tex.  441;  Fordyce  v.  Wittc's  (Tex- 
as), 20  S.  W.  2GG;  Baer  v.  AlcCul- 
lougli,    170   X.  Y.   97. 

30  Davis   v.   Duncan,    19   Fed.   477. 

31  Fanners-  L.  &  Tr.  Co.  v.  Cen- 
tral 1!.  It.  Co.  of  Iowa,  2  McCrary, 
181;  s.  c.  7  Fed.  537;  S.  c,  subse- 
quently  considered    in    17    Fed.    75S. 

32  Farmers'  L.  &  Tr.  Co.  v.  Cen- 
tral R.  R.  of  Iowa.  17  Fed.  758; 
infra,  §  394. 

33  [bid. 

34  Lehman  v.  MeQuown,  31  Fed. 
138:  Davis  v.  Duncan,  19  Fed  A77 
Infra,  §  324. 


§  314.  l  Barton  v.  Barbour.  104 
U.  S.  126,  26  L.  ed.  672;  Central 
Tr.  Co.  of  New  York  v.  Wheeling 
&  L.  E.  R.  Co.,  1S9  Fed.  82.  A 
judgment  against  a  receiver  in  an 
action  which  could  not  properly  be 
instituted  without  permission.  is 
not  void  because  no  such  permission 
was  obtained.  Ridge  v.  Manker.  C. 
C.  A.,  13-2  Fed.  599.  Such  an  order 
is  revocable  and  may  be  conditional. 
Central  Tr.  Co.  v.  Wabash.  St.  I, 
&  F.  Ry.  Co.,  26  Fed.  74;  Buckhan- 
non  St  N.  R.  Co.  v.  Davis.  C.  C.  A.. 
135  Fed.  707.  "The  !ea\e  to  bring 
suit  in  any  form  reserves  the  right 
to  the  receiver  to  set  up  any  defense 
he  may  have,  which  can  be  done  by 
plea,  answer,  or  demurrer."  Davis 
v.  Duncan,  19  Fed'.  177.  4S3.  s(.(. 
;ilsn  .Ionian  v.  Wells.  3  Wood-.  527. 
The  court  might  direct  that  service 
of    process   be   made   upon    the    resi- 


1012 


RECEIVERS. 


[§  314 


act  ion  of  his  in  carrying  on  the  business  connected  with  such 
property,  without  the  previous  leave  of  the  court  in  which  such 
receiver  or  manager  was  appointed;  but  such  suit  shall  be  sub- 
ject to  the  general  equity  jurisdiction  of  the  court  in  which 
such  receiver  or  manager  was  appointed,  so  far  as  the  same 
shall  be  necessary  to  the  ends  of  justice/'2  This  dispossesses 
receivers  appointed  by  a  Federal  court  of  any  right  which  they 
might  otherwise  have  to  remove  suits  brought  against  them  from 
the  State  to  the  Federal  courts,  where  no  difference  of  citizen- 
ship exists  and  no  Federal  question  is  involved.3  It  has  been  held 
that  this  statute  makes  the  judgment  in  the  State  court  in  such 
an  action  conclusive  as  to  the  right  of  the  plaintiff  therein  to  re- 
cover damages,  and  as  to  the  amount  of  the  recovery ;  4  that  the 
receiver  has  the  right  to  appeal  from  the  judgment  of  the 
State  court,  and  that  the  Federal  court  should  not,  as  a  condi- 
tion of  such  appeal,  oblige  him  to  execute  a  supersedeas  bond;5 
but  that  judgment  in  such  a  suit  cannot  be  enforced  by  exeeu- 


dent  agent  of  a  non-resident  receiv- 
er. Central  Tr.  Co.  v.  St.  Louis. 
A.  &  T.  Ry.  Co.,  40  Fed.  426.  As 
to  the  service  of  process  in  the  ab- 
sence of  an  order  upon  the  subject, 
see  Baltimore  &  0.  R.  Co.  v.  Free- 
man, C.  C.  A.,  112  Fed.  237.  For 
a  case  where  the  order  of  the  State 
court  granting  leave  to  sue  a  re- 
ceiver appointed  by  it,  was  held  not 
to  authorize  a  suit  in  a  Federal 
court,  see  Harper  v.  Printing-Tel. - 
News  Co.,  12S  Fed.  07!).  Of.  Wat- 
son v.  Jones.  13  Wall.  679,  20  L. 
ed.  600;  supra,  §§  52,  94.  Other- 
wise when  it  grants  leave  to  sue 
him  "in  any  court  of  competent 
jurisdiction."  James        Freeman 

Brown  Co.  v.  Harris,  139  Fed.  105. 
2Jud.  Code,  §  66,  re-enacting  25 
St.  at  L.,  p.  436;  24  St.  at  L., 
p.  554.  See  Croy  v.  Marshall,  21 
Ohio  W.  L.  B.  489;  Atkin  v.  Wa- 
bash Ry.  Co.,  41  Fed.  193.  1!>4: 
Colonial  Trust  Co.,  et  al.  v.  Pacific 
Packing  &  Navigation  Co..  142  Fed. 
298;    Nashville   Rv.  &   Light   Co.  v. 


Bunn,  C.  C.  A.,  168  Fed.  862.  This 
applies  to  receivers  in  bankruptcy. 
Re  Gutinan,  114  Fed.  1009;  Re  Ran- 
ter &  Cohen.  121  Fed.  984. 

3  Gableman  v.  Peoria.  D.  &  E.  Ry. 
Co.,  179  U.  S.  335,  45  L.  ed.  220. 
See  supra.  §§  5,  37,  51. 

4  Dillingham  v.  Hawk.  C.  C.  A., 
23  L.R.A.  517.  60  Fed.  494;  St. 
Louis  S.  W.  Ry.  Co.  v.  Holbrook. 
C.  C.  A.,  73  Fed.  112;  Bound  v. 
South  Carolina  Ry.  Co.,  174  Fed. 
729;  Meyer  Rubber  Co.  v.  George- 
town &  W.  R.  Co.,  174  Fed.  731; 
Willcox  v.  Jones,  C.  C.  A..  177  Fed. 
870,  holding  that  the  judgment 
bears  interest  in  accordance  with 
the  State  statute;  Manhattan  Tr. 
Co.  v.  Chicago  EL  Traction  Co.,  188 
Fed.  1006.  ( 'antra.  Guaranty  Tr. 
Co.  v.  Chicago  Union  Traction  Co., 
175  Fed.  284.  But  see  Mo.  Pac. 
Ry.  Co.  v.  Texas  Pac.  Ry.  Co.,  41 
Fed.  311,  314. 

5  Central  Tr.  Co.  v.  St.  Louis,  A. 
&  T.  Ry.  Co.,  41  Fed.  551,  555,  556. 


§   314] 


scrrs  i-oAIHST  eeceivebs. 


1013 


tion  against  the  property.6  that  the  time  and  manner  of  pay- 
ment mnst  be  determined  by  th, at  that- appointed  the  re- 

XV'  that  the  statute  does  not  authorise  the  interference  by 
2  State  court  with  property  in  the  posset  ot  the  receiver 
b     an    etln  of  unlawful  detainer,'  ,  suit  to  recover  title  or 
by  an  acu  „„,,,uiiment "  or    condemnation 

possession  to   property,      or  garnishment,  Keos.ins» 

nroceedings,12  or  proceedings  to  condemn  a  grade  cross.n 

Therefusal  of  the  receiver  to  agree'  with  the  petit, r  upon  the 

StaTd  manner  of  crossing  ,1,,.  not  *— J^I 
transaction"  by  him  within  the  meaning  ot  the  statute. 


6  Ibid.  Dillingham  v.  Hawk.  C.  C. 
\  23  L.R.A.  517,  60  Fed.  494;  St. 
Louis  S.  W.  Ry.  Co.  v.  Holbrook, 
C  C  \,  75  Fed.  112;  Mo.  Pac.  R. 
Co.  v.  Texas  Pac.  R.  Co.,  41  Fed. 
311;  Gableman  v.  Peoria,  D.  &  E. 
By.  Co.,  179  U.  S.  335,  339,  45  L. 
ed.   220,  222. 

7  Ibid.      Mever     Rubber      Co.      v. 
Georgetown  &   W.   R.   Co.,   174   Fed. 

731. 

8  Comer  v.  Felton,  C.  C.  A.,  61 
Fed  731;  Stateler  v.  Cal.  Nat. 
Bank,  77  Fed.  43;  J.  I.  C.  Plow 
Works  v.  Finks,  C.  C.  A.,  81  Fed. 
524,  529.  For  a  remarkable  exer- 
tion of  Federal  power,  see  Louis- 
ville Tr.  Co.  v.  Cincinnati  1.  P  Ry- 
Co.,  78  Fed.  307. 

9  Comer    v.    Felton,    C.   C.    A.,    61 

Fed.  731. 

10  J.  I.  C.  Plow  Works  v.  Finks, 
81    Fed.    529;    Love   v.   Louisville   & 
E.  R.   Co.,   178    Fed.   507.     So   held 
of   a   suit   to   foreclose   a   lien   when 
the  receiver  was  a  defendant.     Am. 
L.  &  Tr.  Co.  v.  Central   Vt.  R.  Co., 
84  Fed.  917.     Of.  Gtarid  Trunk  Ry. 
Co.   v.  C.  Vt.   R.   Co.,   88   Fed.   622. 
So  a  Federal  court  refused  to  enter- 
tain a  suit  to  foreclose  a  lien,  Am. 
L.  &  Tr.  Co.  v.  Central  Vt.  R-  Co., 
84  Fed.  917;   or  ejectment.  Waters 
v.   Shinn,    178    Fed.    3'45;    or   to    set 
aside    a    fraudulent    conveyance    of 


property    in    the    hands    of    a    State 
receiver        Werner    v.     Murphy,    60 
Fed.  769.     Cf.  supra,  §§  52,  55.     For 
a  case  where  the  Federal  court  ap- 
pointed   a    trustee    to    protect    the 
rights   of   lienors,   see   Risk  v.  Kan- 
sas Tr.  Co.,  58  Fed.  45.     The  same 
rule  applies  to  trustees  and  receiv- 
ers   in    Bankruptcy.      Re    Russell    & 
Birkett,    C.    C.    A.,     101    Fed.    248. 
They    may,    however,    be    sued     in 
trover    without    leave    of    the    court 
of    bankruptcy.      Re    Kanter    v.    Co- 
hen,   C.    C.    A.,    121    Fed.    984;    Re 
Spitzer.  C.  C.  A.,  130  Fed.  879. 

U  Central  Tr.  Co.  v.  Fast  Tenn. 
V.  &  G.  Ry-  Co..  59  Fed.  523;  Cen- 
tral Tr.  Co.  of  New  York  v.  Wheel- 
ing &  L.  E.  R.  Co.,  189  Fed.  82. 
For  the  practice  by  the  receiver  in 
such  a  case,  see  In  re  Barnard,  61 
Fed.  531.  For  the  remedy  by  a 
State  receiver  when  property  is  at- 
tached by  a  United  States  marshal, 
see  Remington  P.  Co.  v.  Louisiana 
P.  &  Pub.  Co.,  56  Fed.  287. 

12  Hayes    v.    Columbus,    1-    &    -M- 
Ry.   Co.,  67    Fed.   630. 

13  Coster     v.     Parkersburg    B.     B 
Co.,    131    Fed.    115;    Buckhannon    & 
N.  R.   Co.  v.  Davis,   C.   C.  A.,   135 

Fed.  707. 

14  Buckhannon    &    N.    R.    Co.    v. 
Davis,  C.  C.  A.,  135  Fed.  707 


1014 


RECEIVERS. 


[§    314 


law  does  not  authorize  a  mandamus  against  a  receiver.15     The 
proper  remedy  in  all  such  eases  is  usually  a  petition  of  interven- 
tion pro  interesse  suo.1G     It  has  been  held  that  the  statute  does 
not  prevent  an  injunction  against  the  interference  by  the  cred- 
itors with  the  assets  in  the  hands  of  a  receiver  of  a  national 
bank ; 1T  nor  authorize  a  stockholder  of  a  corporation  to  enforce 
a  corporate  cause  of  action  by  a  suit  against  a  debtor  to  the 
corporation,  when  the  receiver  refuses  to  sue,18 — in  the  latter 
case,  the  proper  remedy  is  an  application  to  the  court  to  direct 
the  receivers  to  sue ; 19 — nor  authorize  the  joinder  of  the  re- 
ceiver in  his  official  capacaity  in  an  action  against  different 
companies    for   making    in    concert    with    him    discriminating 
rates ; 20  and  that  upon  his  accounting  the  receiver  can  set  off 
against  a  claim  upon  the  fund  debts  owed  by  the  claimant  to  his 
successor  in  interest.     A  petition  to  the  Federal  court  for  the 
payment  of  a  claim  should  show  that  the  receiver  holds  assets 
properly   applicable   thereto.22      The   holder  of   a   common-law 
claim  who  intervenes  in  the  Federal  court  in  the  first  instance 
waives  his  right  to  a  trial  by  jury;  and  if  the  court  submits  to  a 
jury  the  issues  that  arise  thereupon,  the  verdict  is  merely  ad- 
visory.23    It  has  been  held  that  the  statute  applies  to  receivers 
appointed  before  its  enactment ; 24  that  it  applies  to  suits  against 


15  Royal  Tr.  Co.  v.  Washburn  B. 
&  I.  Ry.  Co.,  113  Fed.  531;  infra, 
§  42S. 

16  Winchester  v.  Davis  Pyrites 
Co.,  C.  C.  A.,  67  Fed.  45;  Minot 
v.  Mastin,  C.  C.  A.,  95  Fed.  734; 
Strain  v.  Palmer,  C.  C.  A.,  159  Fed. 
C24;   supra,  §  25S. 

"Stateler  v.  Cal.  Nat.  Bank,  77 
Fed.  43.  As  to  suits  in  a  State 
court  for  an  injunction  against  a 
Federal  receiver,  see  Royal  Tr.  Co. 
v.  Washburn  B.  &  I.  R.  Co.,  C.  C. 
A.,   139   Fed.   8G5. 

18  Swope  v.  Villard.  61  Fed.  417. 
Gf.  Werner  v.  Murphy,  60  Fed.  769. 

19  Land  Title  &  Trust  Co.  v.  As- 
phalt Co.,  120  Fed.  996,  999.  See 
Werner  v.  Murphy.  60  Fed.  769; 
Swope  v.  Villard,  61  Fed.  417. 

20  Western   X.   Y.   &   P.    R.   Co.   v. 


Penn    Refining    Co.,    C.    C.    A.,    137 
Fed.  343. 

21  Central  R.  &  B'g  Co.  v.  Farm- 
er's L.  &  Tr.  Co.,  113  Fed.  405. 

22  Empire  Distilling  Co.  v.  Me- 
Nulta,  C.  C.  A.,  77  Fed.  700.  But 
see  Veatch  v.  Am.  L.  &  Tr.  Co.,  C. 
C.  A.,  84  Fed.  274.  For  a  case 
where  the  claimant  did  not  lose  any 
rights  by  delay  till  after  a  dividend 
had  been  paid,  and  the  State  rule 
requiring  a  surrender  of  collateral 
was  not  followed,  see  London  &  S. 
F.  Ry.  Co.  v.  Willamette  S.  M.  L. 
&  Md;  S.  Co.,  SO  Fed.  226. 

23Flippiu  v.  Kimball,  C.  C.  A.. 
87  Fed.  258.  Gf.  Atkin  v.  Wabash 
Ry.  Co.,  41   Fed.   193. 

24  Texas  &  Pac.  Ry.  Co.  v.  Cox, 
145  U.  S.  593,  36  L.  ed.  829. 


314] 


SUITS  AGAINST  RECEIVERS. 


10 1; 


a  receiver  for  liabilities  incurred  by  his  predecessor  m  office; 
that  is  applies  to  receivers  appointed  by  the  courts  of  the  Ter- 
ritories over  the  property  of  corporations  created   by   acts  of 
Congress;26  that  non-resident   receivers  may  be  served  in   the 
same  manner  as  the  corporations  over  which  they  were  appoint- 
ed;87 that  a  judgment  in  a  suit  thus  prbsedtited  can  only  be  col- 
lected out  of  the  property  in  the  hands  of  the  receiver  in  his 
official  capacity ; 28  that  it  does  not  authorize  suits  against  a  re- 
ceiver upon  claims  against  the  corporation,  over  whose   prop- 
erty he  has  been  appointed;29  that  after  the  property  has  been 
sold,  free -and  clear  from  all  incumbrances  except  certain  claims, 
which  the  decree  directs  shall  be  presented  within   a   limited 
time,  and  after  such  time  has  expired,  a  receiver  cannot,  with- 
out leave  of  the  court  that  appointed  him,  be  sued  for  acts  com- 
mitted in  his  management  of  the  property ; 30  but  that  a  suit 
pending  against  a  receiver  at  the  time  of  his  discharge  may  be 
prosecuted  to  final  judgment  where  the  property  has  been  sold 
subject  to  claims  against  him;31  and  that  an  order  of  a  Fed- 
eral court  which  discharged  a  railroad   receiver,  restored    the 
property  to  the  defendant  company  and  required  that  all  claims 


25  McNulta  v.  Lochridge,  141  U. 
S.  327,  35  L.  ed.  796;  State  v.  Port 
Royal  &  A.  Ry.  Co.,  84  Fed.  67. 
But  see  Jones  v.  Schlapbeck,  81 
Fed.  274. 

26  WheelCr  v.  Smith,  81    Fed.  319. 

27  Eddy  v.  Lafayette,  L63  U.  S. 
456,  464.  41  L.  ed.  225.  228.  It  was 
held  that  process  might  be  served 
upon  any  local  agent  of  the  re- 
ceivers. Re  Seaboard  Air  Line  Ry., 
166  Fed.  376. 

28  Farmers'  L.  &  Tr.  Co.  v.  Cen- 
tral R.  Co.  of  Iowa,  2  McCrary, 
181  ;  s.  c.  7  Fed.  537 ;  Barton  v. 
Barbour.  104  U.  S.  126,  26  L.  ed. 
672;  Mo.  Pac.  Ry.  Co.  v.  Texas  Pac. 
Ry.  Co.,  41  Fed.  310.  Re  Seaboard 
Air  Line  Ry..  166  Fed.  376;  Hanlon 
v.  Smith,  175  Fed.  192. 

29  Farmers'  Loan  &  Trust  Co.  v. 
Chicago  &  X.  P.  R.  Co..  118  Fed. 
204. 


30  Farmers'  Loan  &  Trust  Co.  v. 
Chicago  &  X.  P.  R.  Co.,  118  Fed. 
204. 

31Baer  v.  McCullough,  176  X.  Y. 
97,  103  Parker,  C.  J.:     '-Clearly  the 
statute  indicates  that  it  was  a  part 
of    the    Congressional    scheme    that 
the     appointment     of     receivers     of 
great    corporations — in    the    case    of 
railroads,     covering     hundreds     and 
sometimes  thousands  of  miles,  with 
property    extending    through    main 
different      counties      and      States — 
should   not   operate   to   prevent   par- 
ties having  claims  against  such  cor- 
porations,   or   against    the    receivers 
thereof,     from     proceeding     in     the 
courts  of  the  neighborhood  precisely 
as   they   could   have  done    when   the 
corporation  was  managing  the  prop- 
erty.     And   to   save   the   citizen    un- 
necessary   expense,     and     the    more 
eurely  to  protect  him   in  his  rights, 


1016 


RECEIVERS. 


[§    314 


against  the  receiver  be  presented  by  intervention  to  that  court 
before  a  given  date,  did  not  prevent  the  subsequent  recovery  in 
a  State  court  of  a  judgment  against  the  company  for  damages  on 
account  of  personal  injuries  caused  by  the  negligent  operation 
of  the  railroad  by  the  employees  of  the  receiver  before  his  dis- 
charge.32     A    Court    of    the    United    States    will    rarely,    if 


it  provided,  in  effect,  that  the  right 
to  bring  the  action  should  not  de- 
pend upon  the  will  of  the  court  ap- 
pointing the  receivers,  and  so  could 
be  brought  without  the  consent  of 
such  court.  But  while  Congress  in- 
tended to  permit  the  establishment 
of  claims  against  the  fund  in  the 
hands  of  the  receivers  to  take  place 
through  the  ordinary  local  judicial 
machinery,  it  could  not,  of  course, 
tolerate  an  attempt  on  the  part  of 
such  courts  to  take  possession  of  so 
much  of  the  fund  or  property  in 
the  hands  of  the  receivers  as  would 
be  necessary  to  the  satisfaction  of 
the  claims.  Only  one  court  could 
be  permitted  to  operate  the  prop- 
erty, marshal  the  assets,  decree  a 
sale  and  provide  for  the  distribu- 
tion of  the  assets  among  those  en- 
titled thereto,  and  hence  it  was 
deemed  necessary  to  establish  the 
boundary  line  beyond  which  State 
courts  could  not  go.  Such  a  con- 
struction is  in  harmony  with  the 
decree  made  by  the  Federal  court 
in  tli is  case.  True,  it  provided  for 
a  method  by  which  claims  against 
the  fund  could  be  ascertained,  but 
it  did  not  provide  that  such  method 
was  exclusive,  nor  do  we  think  it 
could  have  so  provided  in  view  of 
the  language  of  the  statute  author- 
izing the  commencement  of  suits 
without  its  consent,  for  if  it  could 
take  to  itself  exclusive  jurisdiction 
to  establish  claims  against  the  fund 
by  decree  made  at  the  close  of  the 
litigation,   it  could  also  do  it  at  the 


outset  of  the  litigation,  and  in  such 
case  the  authority  conferred  by 
statute  upon  other  courts  to  take 
jurisdiction  of  actions  brought 
against  the  receivers  would  be  with- 
out effect,  and,  of  course,  the  stat- 
ute cannot  thus  be  brushed  aside. 

"The  decree  of  the  Federal  court 
in  this  case  was  made  on  broader 
lines — lines  more  convenient  for  the 
litigant  and  in  harmony  with  the 
statute.  It  assured  the  creditor 
that  his  claim,  whether  established 
or  not  at  the  time  of  the  sale  of 
the  property,  shall  be  paid,  and  it 
does  not  attempt  to  take  from  him 
the  right,  plainly  given  him  by  the 
statute,  to  select  the  court  most 
convenient  to  him,  and  it  reserved 
to  the  Federal  court,  in  the  interest 
of  all  the  creditors,  the  right  to 
proceed  at  the  foot  of  the  decree 
to  make  such  further  order  as 
might  be  necessary  to  carve  out  of 
the  property  or  take  from  the  fund 
such  sum  as  should  be  necessary  to 
satisfy  all  claims  established 
through  the  proper  legal  machinery 
provided  either  by  the  State  or  the 
Federal  government  in  the  event 
that  the  purchaser  of  the  property, 
the  Frie  Railroad  Company,  should 
fail  to  pay  such  claims." 

32  Texas  &  Pac.  Ry.  Co.  v.  John- 
son. ]51  U.  S.  81-  38  L.  ed.  SI. 
Where  the  receivers  remained  in 
possession  a  few  days  after  the  de- 
livery of  the  deed  to  the  purchaser, 
a  cause  of  action  for  negligence 
then    arising    is    a    liability    of    the 


§  315]     MAXXER  OF  APPLYIXG  FOR  RECEIVERSHIP. 


101' 


ever,  enjoin  a  proceeding  in  admiralty  in  a  Federal  District 
Court  against  property  in  the  hands  of  one  of  its  receivers.33  It 
has  been  held  that  the  statute  does  not  apply  to  a  receiver  in 
bankruptcy  who  is  not  carrying  on  the  business  of  the  bank- 
rupt, except  in  so  far  as  the  cause  of  action  arises  out  of  his 
acts  in  the  care  and  preservation  of  the  property  of  the  es- 
tate.34 A  receiver  appointed  under  a  creditor's  bill  is  not  a 
proper  party  to  an  ancillary  foreclosure  suit.35  An  independent 
suit  to  recover  a  simple  contract  debt  incurred  by  him  cannot  be 
maintained  in  equity.36  The  creditor  must  sue  at  law  or  bring 
a  petition  of  intervention  in  the  original  suit.37  A  suit  begun 
before  the  appointment  of  a  receiver  may  subsequently  be  prose- 
cuted to  judgment,  and  the  judgment  so  obtained  establishes,  as 
against  the  receiver,  the  rightful  amount  of  the  demand.38  A 
party  who,  pending  such  a  suit,  files  his  claim  against  the  re- 
ceiver in  the  suit  in  which  the  receiver  was  appointed,  does  not 
thereby  make  an  election  of  remedies  and  lose  his  right  to  prose- 
cute the  suit.39  In  such  a  case  it  was  held  that  the  claimant 
thereby  lost  his  right  to  costs  in  the  original  action.40  It  has 
been  held  that  leave  from  a  State  court  need  not  be  obtained  be- 
fore suing  a  receiver  appointed  by  it  for  the  infringement  of  a 
patent.41  It  has  been  held  that  an  action  will  not  lie  against  a 
receiver  for  a  personal  injury  sustained  before  his  appoint- 
ment.42 

§  315.  Manner  of  applying  for  the  appointment  of  a 
receiver.  It  has  been  held  that  a  court  has  no  jurisdiction  to 
appoint  a  receiver,  unless  a  cause  is  pending;1  and  that,  there- 


receivership  enforceable  under  such 
a  clause  of  the  decree.  Fidelity  I., 
Tr.  &  S.  D.  Co.  v.  Norfolk  &  W.  R. 
Co..  88  Fed.  815. 

33  Paxson  v.  Cunningham,  63  Fed. 
.132.  Cf.  The  St.  Nicholas,  49  Fed. 
(571. 

34  lie  Kalb  &  Berger  Mfg.  Co.,  C. 
C.  A.,  l'fiS   Fed.  895. 

35  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  &  K.  C.  R.  Co..  82  Fed.  042. 

36  X;lsh  v.  Ingalls,  79  Fed.  510. 

37  Ibid. 


38  Pine  Lake  Iron  Co.  v.  Lafa- 
yette Car  Works.  53  Fed.  853. 

39  Tbid.  See  Zacher  v.  Fidelity 
Tr.  &  S.  D.  Co.,  C.  C.  A.,  106  Fed. 
593. 

40  (bid. 

41  Tlupfeld  v.  Automatic  Piano 
Co..  66  Fed.  788.  Cf.  -Curran  v. 
Craig.  22  Fed.   101. 

42  Finance  Co.  of  Pa.  v.  Charles- 
ton C.  &   C.  R.  Co..  40  Fed.  508 

§  315.  l  In  re  Brant,  96  Fed. 
257,  Anon.,  1   Atk.  578.     See  §  324. 


1018 


RECEIVERS. 


[§  315 


fore,  Avill  never  he  appointed  upon  petition  2  when  no  suit  has 
been  begun,  except  in  the  case  of  lunatics.3  The  grounds  of  the 
exception  and  the  reasons  why  it  does  not  extend  to  infants  are 
not  verv  clear.4  After  a  suit  has  been  begun,  however,  a  re- 
ceiver  may  be  appointed  at  any  stage  of  it  when  a  necessity  is 
shown, — before  appearance,5  between  appearance  and  answer,6 
between  answer  and  decree,7  at  the  decree,8  or  afterwards,  if  the 
cause  is  still  Open 9  and  the  complainant  is  not  in  default.10 
But.  a  case  of  pressing  necessity  must  exist  to  justify  the  ap- 
pointment of  a  receiver  before  answer.11  An  objection  to  the 
bill  on  account  of  multifariousness  or  a  misjoinder  of  parties 
will  not  prevent  the  appointment  of  a  receiver;  nor  will  the 
pendency  of  a  motion  for  leave  to  amend  the  bill,12  unless  in- 
deed the  proposed  amendment  would  change  materially  the  al- 
legations showing  the  necessity  for  a  receiver.  The  bill  should 
lay  the  foundation  for  the  appointment  by  stating  the  facts 
which  show  its  necessity  and  propriety,13  and  should  contain  a 
prayer  for  a  receiver.14  If,  however,  a  state  of  facts  subse- 
quently arise  making  the  appointment  necessary,  it  may  proba- 
bly be  made  without  an  amendment  of  the  original  or  the  filing 
of  a  supplemental  bill.15  The  application  for  a  receiver  should 
lie  supported  by  evidence  showing  that  the  appointment  is  nec- 


2  In  re  Brant.  90  Fed.  257  :  Anon., 
]  Atk.  578;  Ex  parte  Whitfield.  2 
Atk.  315;  Merchants'  &  M.  Xat. 
Bank  v.  Kent  Circuit  Judge.  43 
Mich.   2!»2. 

3  Ex  parte  Radcliffe.  1  J.  &  W. 
(339:  Anon.,  1  Atk.  578;  Ex  parte 
Warren.  10  Yes.  022. 

*Ev  parte  Whitfield.  2  Atk.  315. 

5  Tanlield   v.    Irvine.    2    Russ.    149. 

6  Yann  v.  Barnett.  2  Brown  Ch. 
C.  15S:  Metcalfe  v.  Pulvertoft.  1  Y. 
&    P..    ISO. 

'  Kersliaiv  v.  Mathews.  1  Russ. 
301. 

8()>l.1,rne  v.  Harvey.  1  Y.  &  C.  X. 
R.    110. 

9  Cooke  v.  Gwyn.  3  Atk.  6S9; 
Atty.   Gen.   v.   Mayor   of   Galway.    1 


Molloy,    95;     Bowman    v.    Bell,    14 
Sim.   .!92. 

10  Harrington  v.  Union  Oil  Co.r 
144   Fed.   235. 

11  Latham  v.  Chaffee,  7  Fed.  525. 
See  Union  Mut.  Life  Ins.  Co.  v. 
Union  Mills  P.  Co.,  3  L.R.A.  90,  37 
Fed.  2S7. 

12  Barnard  v.  Darling,  1  Barb, 
Ch.    (X.  Y.)    70. 

13  Tomlinson  v.  Ward.  2  Conn. 
390;  Yerplanck  v.  Mercantile  Tns. 
Co..  2  Paige  (X.  Y.),  438.  But  see 
Hcttenstein  v.  Conrad.  9  Kan.  435. 

i4  Eq.  Rule  25.  But  see  Osborne 
v.  Harvey.  1  Y.  &  C.  X.  R.  116. 

15  Malcolm  v.  Montgomery,  2  Mol- 
loy, 500:  Hottenstein  v.  Conrad,  9- 
Kan.  435. 


315] 


MANNER  OF  APPLYING  FOK   I!E<   EI  VEUSHIP. 


1010 


essary.  If  the  application  is  made  before  decree,  the  affi- 
davits should  be  founded  upon  the  allegations  in  the  bill.17  If 
'  statements  not  founded  on  allegations  in  the  bill  and  alleging 
facts  which  existed  and  were  known  before  the  bill  was  filed, 
are  introduced  into  the  affidavits,  it  seems  that  the  court  will 
not  consider  them,18  and  even  if,  where  the  case  made  by  the 
bill  fails,  sufficient  ground  for  a  receiver  is  confessed  in  the 
answer,  it  seems  that  a  receiver  should  be  denied  the  plain- 
tiff, at  least  until  he  had  amended  his  bill.19  Where  the  appli- 
cation is  made  ex  parte,  it  is  the  complainant's  duty  to  make  a 
full,  frank,  and  complete  statement  of  all  facts  which  might 
affect  the  action  of  th*e  court.20  After  an  application  for  a  re- 
ceiver has  been  once  denied,  a  second  application  supported  by 
the  same  papers  will  rarely  be  granted.21  The  former  rule  was 
that,  after  answer,  a  plaintiff  when  moving  for  a  receiver  could 
only  rely  upon  the  admissions  in  the  answer;  2*  but  now  a  sworn 
answer  is  given  upon  such  a  motion  little  more  effect  than  an 
ordinary  affidavit,  and  may  be  contradicted  by  affidavits  in  sup- 
port of  the  bill.23  The  appointment  is  usually  only  made  upon 
notice  and  is  very  rarely  granted  ex  parte?*  Less  thon  one 
day's  notice  has  been  held  to  be  insufficient.25  A  receiver  may, 
however,  be  appointed  ex  parte,  if  that  is  the  only  way  to  pre- 
serve the  property  from  destruction  or  serious  injury,  or  remov- 


ISMiddleton  v.  Dodswell.  13  Yes. 
266;  Kerr  on  Receivers  (2d  Am. 
ed.),  154.  It  was  held  in  a  State 
court  that  a  bill  praying  for  a  re- 
ceiver, sworn  to  '*as  being  true  to 
the  best  of  affiant's  knowledge  and 
belief."  is  not  .sufficiently  verified. 
Smith-Dimmick  Lumber  Co.  v. 
"league,  24  South.  4. 

17  Dawson  v.  Yates,  1  Beav.  301, 
300;  Cremen  v.  llawkes,  2  Jones 
&    La.    T.    674;    Kerr    on    Receivers 

(2d  Am.  ed.),  1.14. 

18  Dawson  v.  Yates,  1  Beav.  301, 
306;  Kerr  on  Receivers  (2d  Am. 
ed.).   lf>4. 

19  Cremen  v.  llawkes,  2  Jones  & 
La.  T.  674:  Kerr  on  Receivers  (2d 
Am.  ed.),    154. 


20  Burroughs  v.  Toxaway  Co..  1S2 
Fed.  120. 

21  Fenton  v.  Lumberman's  Bank. 
Clarke  Ch.    (X.  Y.)    360. 

22Daniell\  Ch.  Pr.  (2d  Am.  ed.) 
1076.  See  Goodman  v.  Wnitcdmb, 
1  J.  &  W.  5S0:  Kershaw  v.  Ma- 
thews.   1    Russ.  361. 

23  Allen  v.  Dallas  k  \V.  R.  Co., 
3   Woods.   316,   332. 

24  Blondheim  v.  Moore.  11  Md. 
365 :  People  v.  Norton.  1  Paige  I  X. 
Y.).  17:  Sandford  v.  Sinclair.  8 
Paige  (X.  V.).  373-.  Miltehberger 
v.  Logarisport  Ryl  Co.,  106  V.  S. 
2S6.  27   L.  ed.   117. 

25  St.  Louis.  K.  C.  &  C.  Ry.  Co. 
v.  Deuces,  23   Fed.  691. 


1020 


RECEIVERS. 


[§  315 


al  beyond  the  jurisdiction  of  the  court.26  It  has  been  said  that 
a  receiver  of  the  assets  of  a  railroad  company  will  rarely  be  ap- 
pointed in  a  suit  to  which  no  stockholders  or  bondholders  are  * 
actually  parties.27  Where  the  officer  of  a  corporation  who  had 
been  served  with  notice  of  a  motion  for  the  appointment  of  a. 
receiver  fraudulently  concealed  that  fact  from  his  associates, 
and  did  not  oppose  the  motion,  although  no  collusion  with  the 
plaintiff  was  shown,  a  motion  to  vacate  the  appointment  was  eii^ 
tertained.28  A  delay  of  one  month  after  knowledge  of  the  ap- 
pointment of  a  receiver,  who  had  expended  in  the  improvement 
of  the  property  money  furnished  him  by  others,  was  held  such 
acquiescence  as  to  estop  a  party  from  moving  to  vacate  the  or- 
der of  appointment  for  irregularity  because  granted  without 
notice  to  him.29     Except  in  an  extraordinary  case,  a  receiver 


26  Phelps  v.  Mutual  Reserve,  etc., 
Ass'n.  ('.  C.  A.,  61  L.R.A.  717.  112 
Fed.  453;  Worth  Mfg.  Co.  v.  Bing- 
ham, C.  C.  A.,  116  Fed.  785:  Re 
Francis,  136  Fed.  012:  holding  that 
such  an  appointment,  without  no- 
tice to  a  defendant  who  is  not  pres- 
ent, was  not  unconstitutional  as  a 
taking  of  his  property  without  due 
process  of  law.  In  Buchanan  v. 
Bay  State  Gas  Co.,  V.  S.  C.  C.  D.. 
Del.  Oct.  15.  1896.  Judge  Wales  ap- 
pointed a  receiver  ex  parte  upon 
documentary  evidence.  In  a  later 
case  Judge  Kirkpatrick  in  U.  S.  C. 
C.  D.,  X.  J.,  appointed  a  receiver 
ex  parte.  Brady  v.  Bay  State  l^is 
Co..  106  Fed.  5S4.  Latimer  v.  Me- 
Xeal.  C.  C.  A..  142  Fed.  451  ;  Mann 
v.  Caddie  C.  C.  A.,  158  Fed.  42; 
Taylor  v.  Faston.  C.  C.  A.,  180  Fed. 
363.  In  Weiss  v.  Haight  &  Freese 
Co..  May.  1!»06,  Judge  Lowell  made 
such  an  appointment.  The  case  was 
affirmed  on  the  ground  of  waiver  in 
Haight  &  Freese  Co.  v.  Weiss,  C.  C. 
A..  150  Fed.  328:  certiorari  denied 
207  l".  S.  504.  52  L.  ed.  356:  Gihson 
v.   Martin.    8    Paige    (X.    Y.),    481: 


Johns  v.  Johns.  23  Ga.  31  :  Triebert. 
v.  Burgess,  11  Md.  452:  Ginbohs  v. 
Mainwaring.  !l  Sim.  77:  MUtenber- 
ger  v.  Logansport  Ry.  Co.,  106  I\. 
S.  286,  27  L.  ed.  117:  Barley  v. 
Gittings.  15  App.  D.  C.  421,  437; 
Hendrix  v.  Am.  Freehold,  etc.,  Co.,. 
,95  Ala.  313.  See  Harv.  Law  Rev. 
xv.  S49:  supra.  §  304. 

27  Overton  v.  Memphis  &  L.  R. 
Co..  10  Fed.  866.  But  see  Central 
T.  Co.  v.  Texas  &  St.  L.  Ry.  Co.r 
24  Fed.  153.  The  absence  of  the 
defendant  from  the  jurisdiction  or 
inability  to  find  and  serve  him  or 
some  urgent  emergency,  making  the 
interference  of  the  court  necessary 
to  prevent  loss  of  the  property,  are 
sufficient  grounds  for  an  appoint- 
ment without  notice.  Mann  v. 
Gaddie,  C.  C.  A..  158  Fed.  42:  Ver- 
planck  v.  Mercantile  Ins.  Co.,  2 
Paige  (X.  Y.)  43S:  People  v.  Al- 
bany &  Susquehanna  R.  R.  Co.,  38 
How.   Pr.    (X.  Y.)    228.  252. 

28  Allen  v.   Dallas  &  W.  R.  Co.,  3. 
Woods.  316. 

29  Ibid. 


§    317]  MANNER  OF  APPOINTMENT  OF  RECEIVER. 


1021 


will  not  be  appointed  over  property  in  the  possession  of  a  stran- 
ger to  the  suit.30 

§  316.  Who  may  apply  for  the  appointment  of  a  re- 
ceiver. A  receiver  is  usually  appointed  upon  the  application 
of  the  plaintiff.  Before  a  decree  it  seems  that  one  defendant 
cannot  move  for  a  receiver,1  unless  he  has  hied  a  cross-bill  or 
counterclaim  praying  for  one.2  After  a  decree,  however,  he 
may,  in  a  proper  case.  Obtain  a  receiver  of  the  property  of  a  co- 
defendant  upon  petition.3  but  not  usually  over  the  property  of 
the  plaintiff  without  a  ca?QSS-hill.4 

§  317.  Manner  of  the  appointment  of  a  receiver.  Bv  the 
English  practice,  which  was  followed  in  New  York  before  the 
passage  of  statutes  altering  it.  when  an  application  for  the  ap- 
pointment of  a  receiver  was  granted,  the  selection  of  the  re- 
ceiver was  referred  to  a  master  in  chancery,  whose  action  was 
subject  to  the  confirmation  of  the  court.1  The  same  master 
usually  exercised  supervision  over  contracts  made  by  the  receiv- 
ers and  the  adjustment  of  his  compensation. 2  In  the  Federal 
courts,  however,  it  is  the  customary  practice  for  the  judge  to 
appoint  and  often  to  supervise  a  receiver  himself,  without  the 
aid  of  a  master,  except  when  the  accounts  are  passed.3  The 
order  is  not  void  because  the  bill  is  demurrable  for  want  of 
equity,  or  because  the  bill  is  not  verified.4     The  denomination 


30  Series  v.  Jacksonville.  P.  &  M. 
R.  Co..  2  Woods,  021.  See  also 
Davis  v.  Cray.  16  Wall.  203,  218, 
21   L.  ed.  447.  452. 

§  310.  1  Robinson  v.  Hadley,  11 
Beav.  014:  Leddel's  Ex'r  v.  Starr, 
19  X.  J.  Eq.  (4  C.  E.  Green)  159. 
But  see  Sargant  v.  Read.  L.  R.  1 
(li.  D.  Odd:  Henshaw  v.  Wells.  9 
Humph.    (Tenn.)    508. 

2  0rote  v.  Bury.  1  W.  R.  !»2 : 
Robinson  v.  Hadley,  11  Beav.  014: 
Kerr  on  Receivers  (2d  Am.  ed.), 
153.  154. 

3  Barlow  v.  Cains,  8  Beav.  329; 
Hiles  v.  Moore.  15  Beav.  175:  Kerr 
on  Receivers    (2d  Am.  ed. ) .   154. 

*Grote  v.  Bury.  1  W.  R.  921;  Rob- 
inson v.  Hadley.  11  Beav.  014:   Ken- 


on     Receivers     (2d    Am.    ed.),     153. 
154. 

§  317.  l  Creuze  v.  Bishop  of 
London.  Dick.  087:  Thomas  v.  Daw- 
kin,  1  Yes.  Jr.  452;  In  re  Eagle 
[ran  Works.  8  Paige  <  X.  Y.).  385i; 
High  on  Receivers.  §  90;  Daniell's 
Ch.   Pr.    (2d  Am.  ed.  |    1970. 

2Thornhill    v.   Thornhill.    14    Sim 
ons.  600. 

8  Miltenberger  v.  Log&nsporl  By. 
Co..  100  l*.  S.  286,  27  L.  ed.  117; 
Buck  v.  Piedmont  &  A.  L.  Ins.  Co., 
4  Fed.  849;  Frank  v.  Denver  &  K. 
C.  By.  Co..  23  V<-d.  757.  P.ut  set 
Taylor  v.  Phila.  &  R.  R.  Co..  7  Fed. 
379;  s.  c.  9  Fed.  1;  <  'owdrcy  v. 
Pail  road  Co.,    1    Woods.  331.  341. 

4  Clark  v.  Brown.  C.  C.  A.,  119 
Fed.    130. 


10-2-2 


RECEIVERS. 


[§    318 


of  a  person  appointed,  with  authority  to  bring  a  suit  as  a  special 
master  instead  of  as  a  receiver,  will  not  affect  the  validity  of 
the  order.5  Where  in  two  suits,  to  which  the  same  corporation 
was  a  defendant,  a  receiver  had  been  appointed  in  one,  and  or- 
ders concerning  the  receivership  were  entitled  in  both  jointly; 
it  was  held  that,  although  no  order  had  been  made  consolidat- 
ing the  two  nor  extending  the  receivership  to  the  second  suit, 
the  receivership  was  in  fact  extended.6 

§  318.  Who  should  be  appointed  receiver.  As  a  general 
rule  no  one  should  be  appointed  receiver  of  property  who  has 
anv  interest  therein,1  or  is  in  any  way  connected  witli  the  litiga- 


5  Royal  Tns.  Co.  v.  Mitten  199  U. 
S.  .353.  .10  L.  ed.  22G. 

6  Gila  Rend  Reservoir  &  Irriga- 
tion Co.  v.  Gila  Water  Co..  202  U. 
8.  270.  .10  L.  ed.  1023. 

§  .31 S.  IWisvvell  v.  Starr,  48 
Me.  401.  The  son  or  brother  of  a 
party  to  a  cause  should  not  be  ap- 
pointed receiver  over  property 
which  is  the  subject  of  the  litiga- 
tion, Williamson  v.  Wilson.  1  Bland 
(Ma-)'i  418;  Taylor  v.  Oldham,  Jac. 
.527 ;  but  see  Shainwald  v.  Lewis,  8 
Fed.  878.  Nor  should  the  next 
friend  of  an  infant,  whose  duty  it 
is  to  protect  his  interest,  be  ap- 
pointed receiver  over  his  estate, 
Stone  v.  Wishart.  2  Madd.  64;  nor 
an  active  trustee  over  the  trust  es- 
tate. Sutton  v.  Jones,  15  Ves.  584; 
v.  Jolland.  8  Ves.  72:  al- 
though a  mere  dry  trustee  may  be 
thus  appointed.  Sutton  v.  Jones, 
15  Ves.  584;  nor  should  a  master 
in  chancery,  whose  duty  it  is  to 
pass  receivers'  accounts,  be  appoint- 
ed a  receiver,  3x  }xtrte  Fletcher,  0 
Ves.  427.  It  has  also  been  said  in 
England,  "that  the  receiver-general 
of  taxes  for  a  county  cannot  be 
appointed  a  receiver;  for  having 
given,  as  such,  security  to  the 
crown,  if  he  were  to  become  indebt- 
ed  to  the  crown   and  to  the  estate, 


the  crown  might,  by  its  prerogative 
process,  sweep  away  all  his  prop- 
erty." Daniell's  Ch.  Rr.  (2d  Am. 
ed.)  1973.  See  Atty.  Gen.  v.  Day, 
2  Madd.  240,  254.  And  Lord  Eldon 
held  that  a  peer  could  not  be  a  re- 
ceiver, because,  "in  many  instances, 
a  receiver  may  be  committed." 
Atty.  Gen.  v.  Gee,  2  V.  &  B.  208. 
It  was  held  improper  to  appoint  as 
assignee  in  bankruptcy  of  a  corpo- 
ration one  who  had  been  appointed 
by  a  State  court  receiver  of  its  as- 
sets. In  re  Stuyvesant  Rank,  5  Ren. 
560;  s.  c.  0  X.  R.  R.  272.  Rut  it 
was  subsequently  held  eminently 
proper  to  appoint  as  a  receiver  of 
the  assets  of  a7i  insolvent  corpora- 
tion one  who  by  the  laws  of  the 
State  that  chartered  it  was  the  of- 
ficial custodian  of  its  assets  in  case 
of  its  insolvency  even  though  that 
State  was  in  another  Circuit  from 
the  one  in  which  the  suit  for  a 
receiver  was  brought,  and  the  offi- 
cer did  not  reside  within  the  juris- 
diction of  the  court.  In  this  case 
it  was  made  a  condition  of  the  ap- 
pointment that  the  receiver  should 
pay  into  the  registry  of  the  court 
the  proceeds  of  all  assets  collected 
within  its  jurisdiction,  but  he  was 
allowed  to  give  sureties  who  were 
residents    of    the    State     where    he 


§  318] 


WHO  SHOULD  BE  APPOINTED  RECEIVER. 


1033 


tion  in  the  course  of  which  the  appointment  is  made2  pi  is 
nearly  related  to,3  or  is  in  the  employ  of,  any  of  the  parties 
thereto,4  or  who.  if  he  should  receive  the  appointrneritj  would  oc- 
cupy two  inconsistent  positions;5  nor  a  person  who  is  aol  famil- 
iar with  the  management  of  similar  property,  and  aide  to  give 
sufficient  attention  to  the  management  of  his  trust.7  The  court 
may,  however,  under  special  eircumstances  appoint  as  receiver 
a  trustee,8  a  person  interested  in  the  subject  of  the  suit.9  el- 
even a  party  to  the  suit,10  or  his  near  relation.**  This,  however, 
should  rarely  be  done  unless  by  consent,  or  possibly  when  it 
clearly  appears  to  be  for  the  interest  of  all  concerned  ; 12  and  in 
such  a  case  by  the  English  practice  the  receiver  was  usually 
obliged  to  act  without  compensation  if  he  accepted  the  trust.13 


dwelt.     Taylor  v.  Life  Ass'n  of  Am., 
3   Fed.   465. 

2  Baker  v.  Backus.  32  J 11.  70: 
Garland  v.  Garland,  2  Yes.  Jr.  137: 
State  Tr.  Co.  v.  Nat.  Land  &  Mfg. 
Co.,  72  Fed.  575;  Wood  v.  Oregon 
Dev.  Co..  55   Fed.  001. 

3  Williamson  v.  Wilson,  1  Bland 
(Md.).  418. 

4  Baker  v.  Backus,  32  111.  70; 
Atty.  Gen.  v.  Bank  of  Columbia,  1 
Paige  (N.  Y.).  511;  Buck  v.  Pied- 
mont &   A.  L.  Ins.  Co.,  4   Fed.   840. 

5  Stone  v.  Wishart.  2  Madd.  04: 
Ex  parte  Fletcher.  6  Yes.  427. 

6  Lupton  v.  Stephenson,  11  Ir. 
Eq.  484.  But  it  was  held  that  a 
person  was  not  disqualified  from 
appointment  as  receiver  of  a  rail- 
road because  he  was  not  a  citizen 
of  the  State  where  the  railroad  was 
chartered  and  situated:  nor  be- 
cause he  was  not  a  railroad  expert 
and  was  unacquainted  with  the 
mechanical  details  of  the  railroad. 
Farmers'  L.  &  Tr.  Co.  v.  Cape  Pear 
&  Y.  Val.  R.  Co..  62  Fed.  675.  Con- 
tra, Wynne  v.  Lord  Newbor,pugh,  15 
Yes.  283.  Nonresidents  are  often  ap- 
pointed ancillary  receivers.  Payne 
v.  Brewer  Pottery  Co.,  82   Fed.  301. 


'  Wynne  v.  Lord  Xewborough,  15 
Ves.  283;  Gibbs  v.  David,  L.  K.  20 
Eq.   373. 

SSykes  v.  Hastings.  11  Ves.  363: 
Sutton  v.  Jones.  15  Yes.  5S4:  Gard- 
ner v.  Blane,  1  Hare.  381  :  Pbwys 
v.  Blagrave.  18  Jur.  463:  Ames  v. 
Birkenhead  Docks.  20  Beav.  332: 
Potts  v.  Warwick  &  B.  (  .  X.  Co., 
Kay,  143;  Kerr  on  Receivers  (2d 
Am.  ed.).   136-139. 

9  Hoffman  v.  Duncan,  18  Jur.  69; 
Powys  v.  Blagrave.  18  Jur.  462: 
Kerr  on  Receivers  (2d  Am.  ed.), 
136. 

10  Wilson  v.  Greenwood,  1  Swanst. 
471  :  Blakeney  v.  Dufaur,  15  Beav. 
40;  Robinson  v.  Taylor.  42  Ya\.  803, 
812. 

"Shainwald  v.  Lewis.  S   Fed.  878. 

12  Atkins  v.  Wabash.  St.  L.  &  P. 
Ry.  Co..  20  Fed.  161  j  Kerr  on  Re- 
ceivers   ( 2d   Am.  ed.i.    136-139, 

is  Wilson  v.  Greenwood,  1  Swanst- 
471,  183:  BJakeney  v.  Dufaur.  15 
Beav.  40:  Hoffman  v.  Duncan,  IS 
Jur.  69;  Powys  v.  Blagrave,  is  Jur. 
403.  But  see  Newport  v.  Bury,  23- 
Beav.  30. 


102-1 


RECEIVERS. 


[§  318 


A  stockholder,14  officer  or  director  of  a  corporation  should  or- 
dinarily not  be  appointed  receiver  of  the  same,15  especially 
when  he  has  been  connected  with  or  assented  to  the  transactions 
that  lead  to  its  insolvency;16  but  under  special  circumstances, 
when  it  is  necessary  to  obtain  the  advantage  of  his  knowledge 
of  its  aifairs  and  he  cannot  otherwise  be  employed,  such  an 
officer  or  director  may  be  appointed; 17  although,  in  such  a  case, 
it  is  advisable  to  join  a  disinterested  person  with  him  as  a 
co-receiver,18  The  fact  that  directors  of  a  corporation,  of  which 
a  receiver  has  been  appointed,  are  also  directors  of  the  insolvent 
corporation,  may  be  a  sufficient  cause  for  objecting  to  his  ap- 
pointment.19 In  one  case,  the  court  held  that  the  fact  that 
there  was  a  possible  claim  on  the  part  of  the  corporation  against 
one  of  several  receivers  was  no  ground  for  removing  him,  until 
the  court  or  his  associates  had  determined  to  prosecute  the 
claim.20  When  a  party  to  the  cause  is  appointed  receiver  in  it, 
he  does  not  thereby  lose  his  privilege  of  acting  as  party.21  It 
has  been  held  in  Tennessee,  that  no  one,  not  even  a  clerk  of  the 
court,  can  be  made  a  receiver  against  his  will.22  Recent  stat- 
utes provide  that  no  clerk  or  deputy  clerk  of  a  Federal  court 
shall  be  appointed  receiver  except  for  special  reasons  which 
must  be  assigned  in  the  order  of  appointment ; 23  and  that  "no 


IMViswell  v.  Starr,  48  Me.  401: 
Atkins  v.  Wabash,  St.  L.  &  P.  Ry. 
Co.,  2!)  Fed.  161;  but  see  People  v. 
Illinois  B.  &  L.  Ass'n,  56  111.  App. 
642. 

15  Buck  v.  Piedmont  &  A.  L.  Ins. 
Co.,  4  Fed.  849;  Atkins  v.  Wabash, 
St.  L.  &  P.  Ry.  Co.,  29  Fed.  161. 
Finance  Co.  of  Pa.  v.  Charleston, 
C.  &  S.  C.  R.  Co.,  45  Fed.  436; 
•Olmstead  v.  Distilling  &  C.  F.  Co., 
67  Fed.  24;  but  see  Farness  L.  & 
Tr.  Co.  v.  Xo.  Pac.  R.  Co..  61  Fed. 
546;  Coy  v.  Title  Guarantee  &  Tr. 
Co.,  157  Fed.  794;  Attorney  Gen- 
eral v.  Bank  of  Columbia.  1  Paige 
(X.  V.),  511:  Baker  v.  Backus,  32 
111.  79.  Cf.  Re  Gordon  Supply  & 
Mfg.  Co.,  129  Fed.  622.  See  High 
.on    Receivers,    1 4th  ed.)    §§   63-81a. 


16  Coy  v.  Title  Guarantee  &  Tr. 
Co.,   157   Fed.   794. 

Instate  Tr.  Co.  v.  Nat.  Land  Imp. 
&  Mfg.  Co.,  72  Fed.  575;  Bowling 
Green  Trust  Co.  v.  Virginia  Passen- 
ger &  Power  Co.,  133  Fed.  186;  Cole 
v.  Phila.  &  E.  Ry.  Co.,  140  Fed. 
944;  but  see  People  v.  Illinois  B.  & 
L.  Ass'n,  50   111.   App.  642. 

18  Cole  v.  Phila.  &  E.  Ry.  Co., 
140   Fed.  944. 

19  Cole  v.  Phila.  &  E.  Ry.  Co., 
140  Fed.  944. 

20  Land  Title  &  Trust  Co.  v.  As- 
phalt Co.  of  America,  120  Fed.  996. 

21  Scott  v.  Platel,  2  Phil.  229: 
Cbwdfey  v.  Railroad  Co.,  1  Woods, 
331.   350. 

22  Waters     v.     Carroll, 
(Tenn.)    102. 

23  20  St.  at  L.,  415. 


9     Yerg. 


§  319]  the  receiver's  security.  1025 

person  related  to  any  justice  or  judge  of  any  court  of  the  United 
States  by  affinity  or  consanguinity,  within  the  degree  of  tii-t 
cousin,  shall  hereafter  he  appointed  by  such  court  or  judge  to 
■or  employed  by  such  court  or  judge  in  any  office  or  duty  in  any 
court  of  which  such  justice  or  judge  may  be  a  member.75  M  A 
State  statute  prohibiting  the  appointment  of  non-residents  as 
receivers  is  not  binding'  upon  a  Federal  court.25  An  order  may 
provide  for  the  appointment  of  a  receiver  in  the  alternative  t<> 

other  relief.26 

§  319.  The  receiver's  security.  As  a  general  rule,  the  or- 
der for  the  appointment  of  a  receiver  provides  that  he  shall  give 
good  and  sufficient  security  for  the  faithful  performance  of  his 
duties.1  This,  by  the  English  practice,  was  usually  a  recogni- 
zance entered  into  by  the  receiver  and  two  or  more  sureties. 
wherebv  they,  the  cognizors,  acknowledged  '"themselves  to  be 
indebted  to  the  cognizees  (usually  the  Master  of  the  Rolls  and 
the  senior  Master  of  the  Court)  in  certain  sums  of  money  to  be 
paid  on  certain  days  therein  mentioned;  in  default  of  which 
thev  will  and  agree  that  the  said  sums  shall  be  levied  and  recov- 
ered of  them,  their  heirs,  executors,  and  administrators,  and  of 
.all  and  singular  their  lands  and  hereditaments,  goods  and  chat- 
tels."2 The  recognizance,  however,  was  subject  to  a  condition 
-making  it  void  if  the  receiver  should  duly  account  for  the  rents 
:and  profits  of  the  estate  over  which  he  was  appointed.3  In  the 
Federal  courts  no  fixed  rule  prevails,  the  security  required  from 
a  receiver  being  whatever  the  judge  who  orders  his  appointment 
thinks  proper.4  When  a  receiver  is  appointed  by  consent,  the 
■court  may  appoint  him  without  requiring  security,  or  upon  his 
•own  recognizance  only.5  The  sureties,  when  individuals,  should 
usually  be  residents  of  the  district;  but  under  peculiar  circuin- 

24  25  St.  at  L.    554.  235;    Toinlinson    v.    Ward.    2    Conn. 

25  City  of  Defiance  v.  McGonigale,       396. 

•C.  C.  A.,   150  Fed.  089.  8  Daniell's  Ch.  Pr.    (2d   Am.  ed.) 

MCurline  v.  Townshend,   19  Ves.     •  1999. 


■628. 


4Tavlor   v.   Life  Ass'n  of   Am..   3 


§319.     l  Daniell's     Ch.     Pr.     (2d  Fed.  4(15. 
Am.   ed.)    1977;    Mead   v.   Lord   Or-  5  Hibbert    v.     Hibbert,    3     Meriv. 

rery,     3     Atk.     235;     Toinlinson     v.  081;    Countess    of    Carlisle    v.    Lord 

Ward,  2  Conn.  39ff.  Berkley,   Ami..  599;    Ridout   v.   Fail 

2  Daniell's  Ch.   Pr.    (2d   Am.  ed.)  of  Plymouth,  1    Dickens,  08. 
3977:   Mead  v.  Lord  Orrery,  3  Atk. 
Fed.  Prac.  Vol.  I.— 65. 


1026  KECEIVEKS.  [§319 

stances  sureties  residing  elsewhere  have  been  accepted.6  The 
sureties  of  a  receiver  cannot  be  discharged  at  their  own  request,7 
except  under  special  circumstances,  "as  where  underhand  prac- 
tice is  proved,  and  the  person  secured  shown  to  be  connected 
with  such  practice."8  "For  if  people  voluntarily  make  them- 
selves bail  or  sureties  for  another,  they  know  the  terms,  and  will 
be  held  very  hard  to  their  recognizance,  and  not  discharged  at 
their  request  to  have  new  sureties  appointed,  for  then  there 
would  be  no  end  of  it.'"9  If  a  surety  should  procure  his  dis- 
charge during  the  continuance  of  the  receivership,  the  receiver 
must  enter  into  a  fresh  recognizance.10  In  law,  a  surety  is  liable 
to  the  full  amount  of  the  penalty  of  the  recognizance,  bond,  or 
undertaking  by  which  he  is  bound.11  In  equity,  however,  he  is 
only  liable  to  the  full  amount,  including  interest  as  well  as  prin- 
cipal which  the  receiver  is  liable  in  equity  to  pay,12  unless  that 
exceeds  the  amount  of  the  penalty,  which  fixes  the  extreme  limit 
of  his  liability.13  It  has  been  held  in  England  that  a  surety  who 
has  undertaken  to  be  responsible  for  whatever  a  receiver 
"should  receive  or  become  liable  to  pay"  as  such  receiver,  is  lia- 
ble for  funds  received  by  the  receiver  before  the  security  was 
given.14  Where  the  parties  interested  have  been  guilty  of  gross 
delay  in  compelling  the  receiver  to  pass  his  accounts,  the  court 
may  excuse  the  surety  from  the  payment  of  the  whole  or  part 
of  the  interest.15  According  to  Daniell,  "When  an  action  is 
brought  against  a  receiver's  surety  upon  the  recognizance,  the 
proper  course  for  him  to  pursue  appears  to  be  to  apply  to  the 
court  by  motion  to  stay  the  proceedings  on  the  recognizance, 
offering  at  the  same  time  to  pay  the  amount  due  from  die  re- 
ceiver, so  as  the  same  does  not  exceed  the  amount  of  the  recog- 
nizance, into  court;  and  upon  such  motion,  the  order  will  be 
made,  upon  the  surety's  paying  the  cost  of  the  application,  and 
of  the  proceedings  consequent  upon  it.  When  the  receiver's 
account  has  not  been  taken,  the  motion  should  also  pray  a  ref- 

6  Taylor   v.   Life   Ass'n   of   Am.,   3*  10  Vaughan    v.    Yaughan.    1    Dick. 

Fed.   465.  DO:   Blois  v.  Betts.  1  Dick.  336. 

1  Griffith    v.    Griffith,   2    Yes.    Sen.  "  Dawson  v.  Raynes.  2  Russ.  466, 

400:  Gordon  v.  Calvert,  2  Sim.  253.  468. 

8  Hamilton    v.    Brewster.    2    Mol-  12  Dawson  v.  Raynes.  2  Rifts.  4(',6. 
loy.  4(17.  13  Walker   v.   Wild.    1   Madd,   528. 

9  Lord    Hardwicke    in    Griffith    v.  14  Smart  v.   Flood.   49   L.   T.   467. 
Griffith,  2  Yes.  Sen.  400.  15  Dawson  v.  Raynes,  2  Russ.  406. 


§    320]  PltOOF  OF  CLAIMS  AGAINST    KECEIVEB8.  lUl'7 

erence  to  the  master  to  see  what  is  due  from  the  receiver;  and 
it  seems  that  upon  such  application  the  court  will  indulge  the 
surety  by  allbwing  him  to  pay  the  balance  bv  instalments."  16 
When  the  surety  has  been  obliged  to  pay  on  account  of  the 
receiver,  he  will  be  entitled  to  a  lien  for  his  reimbursement 
upon  whatever  may  subsequently  be  due  to  the  receiver 
from  the  suit.17  The  sureties  may  he  liable  for  the  malfeasance 
of  the  receiver,  although  the  bill  under  which  the  appointment 
was  made  has  been  dismissed  for  want  of  jurisdiction.18  In  the 
absence  of  a  rule  of  court,  or  of  a  stipulation  in  the  bond,  the 
liability  of  the  surety  should  be  enforced  in  an  independent 
action.19  In  the  absence  of  special  circumstances  no  action  can 
be  brought  until  there  has  been  an  accounting  by  the  receiver.20 
Tt  has  been  held  that  an  order  made  upon  notice  to  the  receiver, 
directing  him  to  pay  the  amount  of  a  judgment  against  him  in 
his  official  capacity,  will  not  support  a  judgment  for  the  same 
against  his  sureties,  when  there  has  been  no  accounting.21 

§  320.  Proof  of  claims  against  receivers.  Claims  against 
receivers  are  generally  presented  and  proved  before  Masters  in 
Chancery,  to  whom  the  matter  has  been  referred.1  The  court 
often  limits  the  time  within  which  proof  must  be  made;2  and 
in  eases  of  preferred  claims,  the  time  within  which  the  prefer- 
ence must  be  asserted  may  also  be  limited;3  but,  in  the  absence 
of  such  an  order,  a  party  filing  a  claim  is  not  required  to  give 
notice  of  the  particular  class  to  which  the  same  belongs  or  wheth- 
er a  preference  is  claimed.4  A  note  given  by  the  insolvent  i- 
prima  facie  valid.5    Claims  may  be  past  due,  immature  or  con 

iflDaniell's  Ch.  Pr.   (2d  Am.  ed.)  §  320.     I' Union  Tr.  Co.  v.  Forty- 

200.-).  2006;   citing  Walker  v.   Wild.  Second    St..    M.    &    St.    \.    Ave.    Ry. 

1    Madd.  528.  <  o..   179   Fed;  nsi. 

-17  Olossop    v.     Harrison,     Cooper,  2  Pennsylvania    Steel    Co.    v.   New 

61;   s.  e..  :;  V.  &   B.  134.  York    City    Ry.    Co..    ('.    C.    A..    IflS 

"Baltimore  B.  &  L.  Ass'n  v.  Al-  Fed.  721. 
derson,  C.  C.  A..  !)!)  Fed.  489.  3  Pennsylvania    Steel    Co.   v.   New 

iSKirker  v.  Owings;  C.  ('.  A.,  98  York  City   lty.  Co..   ins  Fed.  721. 
Fed.   4!)!».  4  Pennsylvania    Steel    (',..    v.    New 

20Coe  v.  Patterson,  122  App.  Div.  York   City    l!y.   Co.    1S7    Fed.  2S7. 
(X.     Y.)      70.       Rut     see     Cake     v.  5  R.arl.er    A.    R.   Co.    v.    Forty ->.-.- 

Molmn.  164  U.  S.  311,  41  L.  ed.  447.  ond   St.,   M.  &    St.    X.   Ave.    Rv.  Co., 

21  [bid.  C.  C.  A.,  180  Fed.  t!48. 


1028 


RECEIVERS. 


[§  320 


tingent.6  In  respect  to  the  question  of  provability,  they  may 
be  divided  into  two  classes:  "(1)  Claims  of  which  the  worth 
or  amount  can  be  determined  by  recognized  methods  of  compu- 
tation at  a  time  consistent  with  the  expeditious  settlement  of  the 
case;  (2)  Claims  which  are  so  uncertain  that  their  worth  can- 
not be  so  ascertained."  7  The  first  class  of  claims  can  be  proved 
and  share  in  the  dividends,  whether  they  are  overdue  accounts, 
immature  notes,  or  claims  for  damages  for  breach  of  contract, 
coinciding  with  or  following  the  receivership.  It  has  been 
held  that  the  second  class  of  claims  cannot  be  proved,  no  mat- 
ter how  highly  meritorious  thev  mav  be.9  Aecordinglv,  it  has 
been  held  under  a  railroad  lease,  that  a  lessor  railway  company 
may  prove  a  claim  for  damages  caused  by  a  breach  of  cove- 
nant to  pay  franchise  taxes,  so  far  as  the  same  had  been  assessed, 
but  not  as  regards  future  taxes  ;10  that  claims  for  rental  can  be 
proved  up  to  the  date  fixed  by  the  court  for  filing  claims  against 
the  receivers,  but  not  subsequently ;  n  that  where  the  receivers  are 


6  Pennsylvania  Steel  Co.  v.  New 
York  City  Ry.  Co.,  C.  C.  A.,  198 
Fed.  721,  739. 

7  Ibid.  See  Pusey  &  Jones  v. 
Pennsylvania  Paper  Mills.  173  Fed. 
629. 

8  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  C.  C.  A.,  198  Fed.  721, 
740;  New  York  Security  &  Trust 
Co.  v.  Lombard  Inv.  Co.,  73  Fed. 
537;  Spader  v.  Mural  Decoration 
Ufg.  Co..  47  X.  J.  Eq.  18,  28  E.  L. 
378. 

9  Pennsylvania  Steel  Co.  v.  New 
York  City  Ry.  Co.,  C.  C.  A..  198 
Fed.  721.  740;  People  v.  Metropoli- 
tan Surety  Co..  205  X.  Y.  135.  98  X. 
F.  412.     See  §  6451,  infra. 

1°  Pennsylvania  Steel  Co.  v.  Xew 
York  City  Ry.  Co.,  C.  C.  A.,  198 
Fed.  721. 

n  Ibid.  In  s.  c.  190  Fed.  009. 
held  that  expenditures  made  for  the 
i  peration.  maintenance  and  im- 
provement of  the  railroad,  after  the 
receivership  was  extended  to  the 
les.-or,    were    not    chargeable    to    the 


estate  of  the  lessee,  since  it  derived 
no  benefit  from  the  same,  and  that 
its  receiver  was  entitled  in  equity 
to  recover  from  the  receivers  of  the 
lessor,  in  preference  to  the  claims 
of  the  mortgagees  of  the  latter,  so 
much  of  the  former's  funds  as  were 
used  for  such  purposes.  In  Lock- 
port  Felt  Co.  v.  United  Box  Board 
&  Paper  Co.,  182  Fed.  328,  held  that 
a  claim  for  water  rent  when  the 
water  had  not  been  used  by  the  re- 
ceivers, could  not  be  considered  as- 
an  expense  of  the  receivership.  For 
a  case  determining  the  apportion- 
ment between  the  lessor  and  the 
lessee,  of  damages  collected  from 
directors  in  interest,  see  Pennsyl- 
vania Steel  Co.  v.  X.  Y.  City  Ry. 
Co.,  C.  C.  A„  198  Fed.  778:  B.  c.,. 
201  Fed.  418.  This  case  held, 
amongst  other  things,  that  the 
mortgagee  had  no  right  to  these 
proceeds.  Citing  Farmers'  Loan  & 
Tr.  Co.  v.  Waterbury,  C.  C.  A.,  193- 
Fed.  44. 


§  320]      PROOF  OF  CLAIMS  AGAINST  BECEIVEBS.         1029 

operating  the  road  experimental lv.  to  determine  whether  or  nor 
they  will  adopt  the  lease,  the  court  should  extend  the  time  within 
which  the  claim  may  he  filed  until  after  the  experimental  period 
has  terminated;  12  that  a  claim  upon  a  guarantee  of  payment  of 
the  principal  and  interest  of  certain  railroad  bonds  can  only  be 
proved  for  interest  past  due  at  the  time  it  is  filed  and  not  for 
principal  and  future  interest,  since,  until  the  termination  of  a 
foreclosure,  the  amount  of  damages  is  too  uncertain  ;  13  and  that 
an   agreement  with   the  mortgagor   to   pay   such   bonds,   cannot 
be  proved  for  the  same  reason.14     It  was  also  held   under  the 
same  lease,  that  where  the  lessee  had  assumed  the  contract  giv- 
ing an  express  company  the  right  to  delayer  parcels  by  express 
over  its  line  for  a  term  of  twenty  years,  in  return  for  a  per- 
centage of  the  gross  receipts,  and  the  express  company  had  as- 
signed the  contract  to  another  solvent  company,  in  consideration 
of  an  agreement  to  pay  it  a  specified  yearly  rental  during  the  re- 
mainder of  the  term,  that  the  claimant  could  prove  that  the  dam- 
ages were  not  too  uncertain  and  that  the  whole  amount  up  to  the 
end  of  the  term  could  be  proved  against  the  funds  in  the  posses- 
sion of  the  receiver.15     Although  the  receiver  has  a  reasonable 
time  within  which  to  accept  or  reject  a  contract,  when  he  does 
so  his  relation  relates  back  to  the  beginning  of  the  receivership 
and  the  breach  takes  place  as  of  that  time.16     AYhere  a  creditor 
holds,  as  collateral,  mortgage  bonds  issued  by  his  debtor,  he  is 
not  entitled  to  receive  from  the  assets  not  subject  to  the  mort- 
gage, dividends  calculated  on  the  basis  of  the  amount  due  him 
plus  that  of  the  amount  due  upon  such  bonds.17     Tt  has  been 
held  that  a  claim  against  the  insolvent  cannot  be  set  off  against 
a  claim  of  the  receivers  for  services  or  money  received  during 

12  Ibid.      Receivers   for   the   lessee  13  Ibid.       Tredegar     Co.     v.     Sea- 

of  a  street  railroad  system  compris-  board    Air  Line   Ry..    ('.   C.    A..    183 

ing  lines  owned  by  different   corpo-  Fed.    289.      In    Ilitner    v.    Diamond 

rations,   are  entitled  to   use  the   in-  State   Steel   Co..    17ti    Fed.   •'>S4.   held 

come    from    the    entire    system    for  that    interest    should    be    allowed    to 

the  purpose  of  operating  and  main-  the  time  of  the  adjudication   of  in- 

taining    the    same    as    a    unit,    not-  solvency, 

withstanding  the  provisions  of  mort-  14  Ibid, 

gages     on     different     parts     of     the  15  Ibid. 

property.       Barber     A.     P.     Co.     v.  16  Ibid.  108  Fed.  721 .  744. 

Forty-Second  St..  M.  &   St.  N.  Ave.  17  Ilitner  v.   Diamond   State  Steel 

Ry.  Co.,  C.  C.  A..  180  Fed.  648.  Co.,  170   Fed.   384. 


1030 


RECEIVERS. 


[§  321 


the  receivership,18  and  that  a  receiver  appointed  in  a  suit  by 
general  creditors  should  not  recognize  a  secret  lien  upon  the 
property  which  is  purely  equitable.19  It  has  been  said  to  be  the 
better  practice  for  the  court  to  fix  a  time  before  the  accounts 
are  made  up  for  distribution  and  to  allow  all  claims  that  are  ma- 
tured and  certain  before  such  date.20  Bankruptcy  acts  and  state 
statutes  regulating  the  provability  of  claims  against  insolvent 
or  dissolved  corporations  are  only  entitled  to  consideration  in  so 
far  as  the  rules  they  lay  down  appeal  to  the  conscience  of  the 
chancellor.  So,  the  decisions  of  the  courts  construing  and  ap- 
plying such  acts  and  statutes  are  only  of  weight  when  they  dis- 
cuss principles  of  general  application.21 

§  321.  Receiver's  accounts.  A  receiver  should  account 
annually  to  the  court  unless  accounts  at  shorter  intervals  are 
required  of  him.1  His  accounts  are  filed  and  passed  in  the 
office  of  the  master  to  whom  matters  pertaining  to  the  receiv- 
ership are  referred.2  A  receiver's  account  should  describe  the 
situation  of  the  estate  at  the  time  when  he  received  it,  and  any 
changes  that  have  since  taken  place.  He  should  then  state  his 
receipts  and  disbursements,  which  should  be  set  forth  in  sched- 
ules as  specifically  as  possible.3    It  is  the  better  practice  for  him 


18  Barber  A.  P.  Co.  v.  Forty-Sec- 
ond St..  M.  &  St.  N.  Ave.  Ry,  Co., 
175  Fed.  154. 

19  H.  K.  Porter  Co.  v.  Boyd,  C.  C. 
A.,  171    Fed.  305. 

20  Ibid.  In  N.  Y.  Security  & 
Trust  Co.  v.  Lombard  Inv.  Co.,  73 
Fed.  537,  it  was  held  that  all  claims 
could  be  allowed  which  had  matured 
before  an  order  of  distribution.  In 
Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  182  Fed.  155,  held 
that  an  application  for  the  pay- 
ment, in  full,  of  certain  claims,  as 
preferred,  should  be  denied  until  the 
final  determination  of  the  status  of 
all  classes  of  claims  which  might  be 
entitled   to  a  preference. 

§321.  1  Potts  v.  Leighton,  15 
Ves.  273;  General  Order,  15  •  Ves. 
278;  Lowe  v.  Lowe,  1  Tenn.  Ch. 
515. 


2Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1996,  1997. 

SDanielFs  Ch.  Pr.  (2d  Am.  ed.) 
1996,  1997.  But  see  Lafayette  Co. 
v.  Neely,  21  Fed.  738.  He  has  a 
lien  upon  the  estate  for  the  repay- 
ment of  his  individual  funds  ad- 
vanced to  execute  orders  of  the 
court.  Union  Tr.  Co.  v.  Illinois 
Midland  Pvy.  Co.,  117  U.  S.  434, 
For  a  case  where  the  receiver's 
expenses  on  a  journey  to  Europe 
were  allowed :  N.  Ala.  Ry.  Co.  v. 
Hopkins,  C.  C.  A.,  87  Fed.  805.  For 
the  disallowance  of  New  York  hotel 
bills  paid  by  the  receiver  of  a  Kan- 
sas railroad,  see  Braman  v.  Farm- 
ers' L.  &  T.  Co.,  C.  C.  A.,  114  Fed. 
18,  21. 


§  321] 


RECEIVER  S  ACCOUNTS. 


1031 


to  charge  himself  with  the  inventory  and  to  take  credit  as  it 
is  disposed  of;  to  separate  expenditures  not  on  improvement 
account  from  those  for  operating  expenses;4  to  file  vouchers 
for  all  sums  of  money,  in  excess  of  twenty  dollars,  which  he 
has  paid.5  He  should  also  state  such  indebtedness  as  he  has  in- 
curred;  and,  in  general,  give  as  full  a  description  of  the  estate 
in  his  hands,  and  of  his  actions  concerning  the  same,  as  is  prac- 
ticable.6 Receivers  will  be  charged  with  personal  liability  for 
such  indebtedness  incurred  by  them  as  might  have  been  pre- 
vented had  they  kept  proper  accounts,7  and  with  preferential 
payments  made  by  them,  which  should  have  been  ratably  ap- 
plied among  all  the  creditors.8  When  a  receiver  withholds  from 
a  stranger  to  the  suit,  money  to  which  the  latter  is  entitled,  he 
is  liable  for  interest  upon  the  same  from  the  time  of  its  receipt 
until  he  pays  it  into  court  and  asks  for  directions  as  to  its  dis- 
tribution.9 The  burden  rests  upon  him  to  justify  and  prove  his 
accounts,  so  far  as  they  are  questioned  by  exceptions.10  An  ex 
parte  order  authorizing  a  payment,  which  is  obtained  from  the 
court  under  a  misapprehension  due  to  fraud  or  negligence  by 
the  receiver,  will  not  protect  him.11  If  a  person  has  not  been 
paid  for  services  rendered  to  the  estate,  but  has  agreed  with  the 
receiver  to  be  content  with  what  the  court  allows  him.  that  facl 
should  be  stated  in  the  account  together  with  a  description  of 
the  services  thus  performed.12     A  receiver  is  entitled  to  credit 


4  Ibid. :  Ely  v.  Van  Kannel  Re- 
volving Door  Co.,   184   Fed.   459. 

5  Remsen  v.  Remsen,  2  J.  Ch.  (X. 
Y.)  495,  501.  See  also  Gutterson 
&  Gould  v.  Lebanon  Iron  &  Steel 
Co.,   151    Fed.   72. 

BDaniell'a  Ch.  Pr.  (2d  Am.  ed.) 
1990,  1997;  Hooper  v.  Winston,  24 
111.  353;  Hinckley  v.  Railroad  Co., 
100  U.  S.  153,  25  L.  ed.  591;  Atty. 
Gen.  v.  X.  A.  L.  I.  Co..  89  X.  Y.  94. 
107;  Bourne  v.  Jilaybin,  3  Woods, 
724,   741  ;    Equity  Rule   79. 

'  Braman  v.  Fanners'  L.  &  Tr. 
Co.,  C.  C.  A.,  114  Fed.  18. 

8  Gutterson  &  Coulld  v.  Lebanon 
Iron  &  Steel  Co..  151    Fed.  72. 

9  Rosenthal  v.  McGraw,  C.  C.  A., 
138  Fed.  721. 


1(>  Gutterson  &  Gould  v.  Lebanon 
Iron  &  Steel  Co.,  151  red.  72.  Spe- 
cific items  for  counsel  fees  were 
considered  in  Drey  v.  Watson.  C.  C. 
A..  138  Fed.  792.  796.  See  also  in- 
fra, §  422. 

11  Gutterson  &  Gould  v.  Lebanon 
Iron  &  Steel  Co.,  151  Fed.  72. 

12  Adams  v.  Woods.  8  Call  306i 
Central  Tr.  Co.  v.  Wabash,  St.  L. 
&  P.  Ry.  Co..  23  Fed.  (>75:  Bound 
v.  S.  Carolina  Ry.  Co..  43  Fed; 
404:  Maxwell  v.  Wilmington  Mig. 
Co..  82  Fed;  214:  Central  Tr.  Co. 
v.  Wabash.  St.  L.  &  V.  K\.  Co.j 
23  Fed,  675;  Boston  8.  D.  &  Tr. 
Co.  v.  Chamberlain,  C.  C.  A..  66 
Vcd.  S47.  Cf.  Sowles  v.  Nat.  Union 
Bank.    82    Fed.    189;     Am.    Loan    & 


1032 


RECEIVERS. 


[§    321 


for  reasonable  counsel  fees  which  he  has  paid  or  incurred ; 13 
but  not,  it  has  been  said,  for  services  in  opposing  a  motion  to 
vacate  his  appointment ; 14  unless  when  he  is  also  trustee  under 
the  mortgage,  when  such  counsel  fees  may  be  allowed.15  lie 
cannot  receive  credit  for  counsel  fees  he  contracted  to  pay  for 
instituting  suits  which  were  unnecessary  and  not  warranted 
under  the  circumstances.16  Allowances  for  counsel  fees  will 
usually  be  small,  until  the  final  accounting  of  the  receiver, 
when  the  full  amount  earned  will  be  ordered  paid.17  In  Xew 
York  it  has  been  held,  that  such  allowances  are  the  property 
of  the  receiver,  not  of  his  counsel ; 18  but  payment  directly  to 
the  attorney  is  often  directed.  The  employment  by  the  re- 
ceiver of  his  law  partner,  as  counsel,  is  a  transaction  which  is 
indelicate,  and  is  not  to  be  commended.19  When,  however,  it 
clearly  appears  that  the  receiver  is  not  to  share  in  the  compen- 
sation, his  partner  may  be  paid  for  legal  services  rendered  to 


TV.  Co.  v.  S.  Atl.  &  O.  R.  Co..  81 
Fed.  62;  Kernochan  v.  Ballance,  56 
X.  Y.  Supp.  132;  s.  c,  26  N.  Y, 
Misc.  43."). 

13  Burroughs  v.  Toxaway  Co.,  C. 
C.  A.,  185  Fed.  435.  Where  the 
counsel  for  a  receiver  lhed  in  one 
State  and  rendered  services  in  two 
States,  it  was  held  that  the  compen- 
sation for  his  different  services 
should  he  adjusted  at  the  amount 
usually  paid  to  lawyers  in  the 
States  where  each  were  performed. 
Bibber-White  Co.  v.  White  River 
Valley  El.  R.  Co.,  175  Fed.  470. 
Where  the  judge  wrote  the  receivers 
stating  that  certain  persons  therein 
named  were  their  only  standing 
counsel  and  that  others  should  be 
employed  only  after  consultation 
with  the  court,  it  was  held  that  that 
was  a  sufficient  discharge  of  any 
that  might  have  been  previously  em- 
ployed. Guaranty  Tr.  Co.  of  New 
York  v.  Chicago  Rys.  Co..  C.  C.  A., 
IS.",  Bed.  411.  It  has  been  held  that 
$500  is  proper  compensation  to  an 
attorney    for     filing    the     receivers' 


bond  and  for  the  preparation,  serv- 
ice, and  filling  of  a  summons  and 
complaint  to  compel  the  payment  of 
$10,001).  People.  &c.  v.  Przestrzel- 
ski.  (Gerard,  J..  N.  Y.  Sup.  Ct..  Sp. 
Tift.)  X.  Y.  L.  J.  May  24.  1912. 
Where  the  attorneys  for  an  insolv- 
ent bank  consented  to  allowances  to 
attorneys  for  a  receiver,  in  order  to 
enable  the  bank  to  resume  business, 
it  was  held  that  the  consent  was 
given  under  duress  and  that  the 
receiver  might  appeal  from  the  or- 
der making  the  allowance.  People 
v.  Brooklyn  Bank.  140  App.  Diy* 
IN.   Y.)    750. 

14  Burroughs  v.  Toxaway  Co.,  182 
Fed.  12!);  modified  S.  C,  C.  C.  A., 
185   Fed.  435. 

15  Burroughs  v.  Toxaway  Co.  C. 
C.   A.,    185    Fed.   435. 

16  Burroughs  v.  Toxaway  Co.,  182 
Fed.   120. 

17  Matter  of  Simpson,  36  App. 
Div.    562.   564. 

18  Ibid. 

19  Stuart  v.  Boulware,  133  II.  S. 
78.  33  L.  ed.  568. 


§    322]  COMPENSATION  OJEiBECEIVERS.  1033 

the  estate.20  Where  before  his  appointment  a  receiver  had  re- 
ceived rent  paid  to  him  in  his  individual  capacity  in  advance, 
he  was  obliged  to  apportion  the  rent,  and  to  account  for  so  much 
of  it  as  was  paid  for  the  time  during  which  he  acted  as  re- 
ceiver of  the  property,  for  the  use  of  which  the  rent  was  paid.21 
Exceptions  should  not  be  taken  after  a  master's  report  upon  a 
receiver's  accounting  has  been  filed,  the  master  acting  in  the 
place  of  the  court  in  a  judicial  and  not  in  a  ministerial  capa- 
city.28 Should  the  receiver  or  anv  other  party  to  the  account- 
ing  feel  aggrieved  at  a  ruling  of  the  master,  he  should  take 
exception  at  the  time,23  and  subsequently  petition  the  court  to 
refer  the  mattter  back  to  the  master  for  correction.24  The 
court's  duty  upon  such  a  petition  consists  in  reviewing  the 
principles  and  rules  adopted  and  followed  by  the  master  in  al- 
lowing the  receiver's  accounts,  rather  than  in  examining  the 
items  of  the  account  in  detail  or  the  evidence  upon  which  those 
items  are  severally  founded;  the  latter  duty  belonging  more  es- 
pecially to  the  province  of  the  master  acting  in  his  judicial  ca- 
pacity, analogous  to  the  province  and  duty  of  a  jury  on  ques- 
tions of  fact.25  Where  the  receiver  claimed  in  his  accounts  a 
balance  as  due  him,  and  it  was  found  that  he  was  indebted  to 
the  estate,  he  was  charged  personally  with  the  costs  of  the  ac- 
counting.26 In  a  proper  case,  the  receiver,  as  well  as  any  other 
party  interested,  may  appeal  from  the  final  decree  entered  after 
his  accounting.27 

§  322.  Compensation  of  receivers.  The  compensation  of 
a  receiver  is  usually  fixed  in  the  first  instance  by  the  master,1 
with  whose  determination  the  court  will  not  ordinarily  interfere.2 
The  compensation  will  rarely,  if  ever,  be  increased   upon   ap- 

20  In    re    Allin,  8    Fed.    753.                   Co..    94    V.    S.    407.    24    L.   ed.    L6j6,; 

21  Cowdrey     v.  Railroad     Co.,     1       Hinckley  v.  Railroad  Co..   100  1".  S. 
Woods..  331,   334.  1.">3.    25    L.    ed.    5j91j    limey    v.    Me- 

22  Ibid.  Donald.  L09  U.  S.  150.  27  1>.  ed.  SSS. 

23  Ibid.  §322.      ICow.lrey       v.        Railroad 

24  ibid.  Co..     1     Woods.     331.     341:     Central 
25Qunn  v.  Fwan.  03  Fed.  80.  Trust   Co.    v.    Wabash,    St.    L.   &    P. 

26  Cake  v.  Molmn,   1(14  U.  S.  311,       Ry.   Co..  32    Fed.    1ST. 

41   L.   ed.   447;    Petersburg  S.   &   I.  2  Cowdrey     v.      Railroad     Co.,      1 

Co.  v.  Dellatorre,  C.  C.  A.,  70  Fed.  Woods.     331.     341;     Central     Trust 

643.                              .  Co.  v.  Wabash,  St.  L.  &  P.  Kv.  Co.. 

27  Hinckley  v.  Oilman  C.  &  S.  R.  32   Fed.  187. 


1(1:51 


RECEIVERS. 


[§    322 


peal.3  Where  the  court  has  fixed  a  receiver's  compensation  in 
advance,  it  has  the  power  to  award  him  an  additional  sum  for 
extraordinary  labors.4  In  cases  of  moderate  amount  of  commis- 
sion of  five  per  cent,  upon  the  receipts  and  disbursements  is  not 
unusual.5  Commissions  were,  however,  not  allowed  upon  se- 
curities which  came  into  the  hands  of  the  receiver,  but  were  not 
collected  by  him.6  Where  the  amounts  received  and  disbursed 
are  large,  it  is  customary  to  pay  the.  receiver  a  salary  or  a  lump 
sum  graduated  according  to  the  amount  of  his  time  employed, 
the  value  of  the  property,  the  difficulty  of  his  task,  and  the  suc- 
cess of  his  administration.7  It  has  been  said  that  the  peculiar 
duties  and  responsibilities  and  accountability  of  a  receiver  of 
a  railroad  entitle  him  to  a  larger  amount  than  would  be  demand- 


3  Hinckley  v.  Railroad  Co.,  100 
t~.  S.  153,  25  L.  ed.  591;  Stuart  v. 
Boulware.  133  U.  S.  78,  33  L.  ed. 
568;  Braman  v.  Farmers'  L.  &  Tr. 
('....  C.  C.  A.,  114  Fed.  18. 

4  Farmers'  L.  &  Tr.  Co.  v.  Cen- 
tral R.  R.  of  Iowa,  8  Fed.  60. 

5  Cowdrey  v.  Railroad  Co..  1 
Woods,  331,  346;  Day  v.  Croft,  2 
Beav.  488;  Girard  Tr.  Co.  v.  lie- 
Kinley-Lanning  L.  &  Tr.  Co.,  143 
Fed.  355;  Calhoun  v.  Dragon  Motor 
Co.,  166  Fed.  080.  $12,000  each  was 
held  to  be  ample  compensation  for 
two  receivers  who  had  been  occupied 
six  months  in  the  administration  of 
trust  funds  amounting  to  $2,000,000. 
People  v.  Brooklyn  Bank,  140  App. 
Div.  (X.  Y.)  750.  Ten  per  cent, 
upon  the  receipts  from  a  business 
conducted  by  him,  and  five  per  cent. 
upon  his  receipts  from  other  sources 
and  his  disbursements  was  allowed 
in  Cake  v.  Mohun.  104  U,  S.  311, 
41  D.  ed.  447.  Where  a  receiver 
collected  earnings  of  the  property, 
to  a  part  of  which  a  third  person 
was  entitled  under  a  contract  with 
the  defendant,  it  was  held  that 
neither  he  nor  the  insolvent  estate 
could    charge   for   the   services   ren- 


dered in  collecting  the  part  pay- 
able to  the  stranger.  Rosenthal  v. 
McGraw,   C.  C.  A.,   138  Fed.   721. 

6  Girard  Tr.  Co.  v.  McKinley- 
Lanning  L.  &  Tr.  Co.,  143  Fed.  355. 

7  Cowdrey  v.  Railroad  Co.,  1 
Woods,  331,  346;  Farmers'  L.  & 
Tr.  Co.  v.  Central  R.  R.  of  Iowa, 
8  Fed.  60;  Central  Trust  Co.  v. 
Wabash,  St.  L.  &  P.  Ry.  Co.,  32 
Fed.  187.  See  Burroughs  v.  Toxa- 
way  Co.,  C.  C.  A.,  185  Fed.  435. 
Where  the  majority  of  the  creditors 
had  given  their  assent  to  the  ap- 
pointment of  receivers  of  a  partner- 
ship, upon  a  bill  alleging  insolvency 
and  that  the  completion  of  a  con- 
tract would  be  for  the  benefit  of 
creditors;  it  was  held  that  the  affi- 
davit of  the  attorney  for  a  single 
judgment  creditor  stating  his  be- 
lief that  the  firm  was  solvent  and 
that  the  receivership  was  obtained 
for  the  benefit  of  the  partners,  in 
order  to  hinder  and  delay  creditors, 
was  insufficient  to  justify  the  vaca- 
tion of  the  receivership  or  to  au- 
thorize its  creditors  to  issue  an  ex- 
ecution against  property  in  the 
hands  of  the  receivers.  Patterson 
v.   Patterson,    184   Fed.   547. 


§   322] 


COMPENSATION  OF  RECEIVERS. 


1035 


ed  by  the  head  officer  of  a  railroad,  of  the  same  size  and  busi- 
ness.8 The  receivers  eight  to  couipensatioji  passed  to  his  per- 
sonal representatives  upon  his  death.9  and  lias  precedence  of  the 
elaims  of  holders  of  receiver's  certificates.10  Whether  a  re- 
ceiver can  assign  his  commissions  before  they  are  earned  is 
doubtful.11  An  agreement  by  a  receiver  that  he  would  not  en- 
force any  claim  for  his  commissions,  "to  the  detriment  of"  the 
claim  of  an  intervener,  was  held  not  to  entitle  the  latter  to  be 
paid  out  of  commissions  allowed  the  receiver  from  funds  that 


8  Bradley,  J.,  in  Cowdrey  v.  Kail- 
road  Co.,  1  Woods,  331,  347.  Ap- 
proved by  Brewer.  J.,  in  Central 
Trust  Co.  v.  Wabash.  St.  L.  &  P. 
Ry.  Co.,  32  Fed.  187,  188.  See  also 
Williams  v.  Morgan.  J]]  U.  S.  684, 
28'  L.  ed.  559.  Receivers  of  rail- 
roads have  been  frequently  allowed 
as  much  as  $10,000  a  year.  Hinck- 
ley v.  Railroad  Co..  100  U.  S.  153, 
25  Er.  ed.  501  ;  Cowdrey  v.  Railroad 
Co.,  1  Woods,  331.  347.  But  see 
Farmers'  L.  &  Tr.  Co.  v.  Central  R. 
R.  of  Iowa,  8  Fed.  60.  In  one  re- 
ported case  two  receivers  were  each 
allowed  $70,000  for  three  and  a  half 
years'  work.  Central  Trust  Co.  v. 
Wabash,  St.  L.  &  P.  Ry.  Co.,  32  Fed. 
187.  In  a  few  cases  not  reported 
larger  fees  have  been  allowed.  In 
other  cases  annual  salaries  of 
$6,000,  Boston  S.  D.  &  Tr.  Co.  v. 
Am.  R.  Tel.  Co.  67  Fed.  165,  168; 
Braman    v.    Farmers'    L.   &    Tr.    Co. 

C.  C.    A.,    114    Fed.    18;    Boston    S. 

D.  &  Tr.  Co.  v.  Chamberlain,  C.  C. 
A.,  66  Fed.  847,  where,  for  winding 
up  the  estate  after  the  railroad  was 
sold,  only  $1,750  was  allowed  for 
seven  months;  $4,500,  Easton  v.  II. 
&  T.  C.  Ry.  Co.,  40  Fed.  L89r;  and 
$2,500,  Central  Tr.  Co.  v.  Cincin- 
nati, J.  &  X.  Ry.  Co.  58  Fed.  500, 
512.  In  street-railroad  eases  much 
less  is  allowed.  Montgomery  v. 
Petersbury  S.  &  I.  Co.,  C.  C.  A.,  70 


Fed.  746.  $15,000  was  held  to  be 
sufficient  for  twenty-nine  months  of 
service  in  the  administration  of  oil 
properties  in  four  different  States, 
which  sold  for  $271,000.  when  the 
receiver  had  also  been  allowed  $15 
a  day  for  his  expenses  during  125 
days  spent  in  different  cities;  and 
an  allowance  of  $24,022.84  was  re- 
duced to  that  amount.  In  the  same 
case,  it  was  held  that  an  allowance 
to  an  assignee,  under  an  insolvent 
assignment,  of  five  per  cent,  upon 
the  money  handled  by  him.  was  suf- 
ficient. Drey  v.  Watson.  C.  ('.  A.. 
138  Fed.  702.  For  a  case  where  the 
Federal  court  refused  to  allow  its 
receiver  to  set  off  the  amount  of 
compensation  awarded  him  by  a 
State  court,  for  compensation  for 
services  as  a  receiver  of  the  same 
property  in  another  suit,  against  the 
sum  he  was  directed  to  pay  1>\  a  de- 
cree of  the  Federal  court,  see  Hinck- 
ley v.  Railroad  Co..  100  U.  S.  153. 
25  L.  ed.  591  :  In  re  Hinckley.  3  Fed. 
556,  For  a  case  of  estoppel  againsl 
objecting  to  the  amount  of  compen- 
sation, see  Dillingham  v.  Morari. 
C.  C.  A.,  81    V\'d.  759. 

9  Cake   v.    Mohun.    104    V.   S.   31  1. 
41    L.  ed.   447. 

10  Petersburg  S.  &   I.   Co.   v.   Dele- 
torre.    C.    C.   A.,   70    Fed.    643. 

11  Bloomlield     \.     Roy,    C.    C.    A., 
120  Fed.  502,  5Q3l 


1036 


EECEIVERS. 


[§    323 


would  otherwise  have  been  applied  in  payment  of  preferred 
claims.12  Misconduct  of  the  receiver,  such  as  the  unneces- 
sary prolongation  of  the  receivership  13  or  his  failure  to  keep 
proper  books  of  account,14  may  be  a  reason  for  denying  him 
any  compensation.  "Where  a  receiver,  with  the  consent  of  the 
court,  authorized  certain  creditors  to  advance  the  necessary  ex- 
panses to  collect  certain  claims  of  the  estate,  under  an  agreement 
that  they  should  have  a  preference  for  the  payment  of  their 
expenses  and  their  claims  out  of  the  proceeds ;  it  was  held  that 
he  should  receive  no  compensation  from  that  fund,  except  from 
the  surplus  after  they  had  been  paid  in  full.15  When  the  ac- 
count has  been  adjusted,  the  receiver  should  be  ordered  to  pay 
the  balance  into  court,  and  his  surety  is  liable  for  his  default.16 
After  such  an  order,  his  liability  is  not  measured  by  the  funds 
or  property  of  the  estate,  although  such  funds  can  be  used  to 
comply  with  the  order.17  An  order  allowing  compensation  to 
a  receiver  should  be  made  only  after  notice  and  a  hearing,  at 
which  the  parties  interested  have  an  opportunity  of  contest- 
ing the  same.18  Such  an  order  is  appealable  and  may  be  re- 
versed for  want  of  proper  notice  of  the  application  for  the 
same.19  Ordinarily,  motions  to  fix  the  compensation  of  a  re- 
ceiver's counsel  should  not  be  heard  ex  parte,  but  notice  thereof 
should  be  given  to  all  parties  in  interest.20 

§  323.   Removal  of  receivers.    A  receiver  may  be  removed 
for  misconduct  in  office,1  or  because  his  original  appointment 


12  Bloomfield  v.  Roy,  C.  C.  A., 
120  Fed.  502. 

13  Newell  v.  International  Tr. 
CO.,  ('.  C.  A..  109  Fed.  497. 

14  B  ram  an  v.  Farmers'  L.  &  Tr. 
Co..  C.  C.  A..  114  Fed.  18. 

15  Cornell  v.  Nichols  &  Langwor- 
thy  Mach.  Co..  189  Fed.  556;  aff'd., 
C.  C.  A..  201  Fed.  320.  See  MeEwen 
v.  Harriman  Land  Co.,  C.  C.  A.,  138 
Fed.  797.  808,  71  C.  C.  A.  163. 

16  Re  Reliable  Bottle  Box  Co.,  199 
Fed.   670. 

17  II, id. 

is  Ruggles  v.  Patton,  C.  C.  A., 
143   Fed.   312:    Merchants'   Bank    v. 


Crysler,  67  Fed.  388;  s.  c,  14  C.  C. 
A.    449. 

19  Ibid. 

20  Merchants'  Bank  v.  Crysler, 
C.  C.  A.,  67  Fed.  388,  14  C.  C.  A. 
449. 

§  323.  1  Handy  v.  Cleveland  & 
Marietta  R.  Co.,  31  Fed.  689;  At- 
kins v.  Wabash,  St.  L.  &  P.  Ry.  Co.. 
29  Fed.  161;  Clarke  v.  Central  R. 
R.  &  B.  Co.,  66  Fed.  16.  Instances 
of  such  misconduct  as  will  be  a 
cause  for  the  removal  of  a  receiver 
are:  unlawful  discrimination  in 
charges  between  different  shippers 
upon  a  railroad;  Handy  v.  Cleve- 
land &  M.  R.  Co..  31   Fed.  689:   At- 


323] 


EEMOVAL  OF  RECEIVERS. 


1037 


was  obtained  by  collusion  or  fraud,2  or  was  improper  on  ac- 
count of  his  interest  in  the  subject  of  the  receivership  or.  con- 
nection with  the  parties  in  interest,3  or  because  subsequent  de- 
velopments make  his  continuance  in  the  office  likely  to  be  detri- 
mental to  the  estate.4  Unreasonable  delay  in  the  administra- 
tion of  the  estate  is  a  cause  for  the  removal  of  a  receiver.5  The 
fact  that  the  estate  has  a  claim  against  him  i-  a  proper  cause  for 
his  removal.6  A  receiver  will  not  be  removed  or  discharged  at 
his  own  request  except  for  good  cause  shown,  nor  ordinarily 
for  a  reason  which  he  knew  or  had  ground  to  anticipate  when 
he  accepted  the  receivership.7  Ordinarily,  a  receiver  can  only 
be  removed  by  the  court  which  appointed  him,8  upon  an  ap- 


1<ins  v.  Wabash,  St.  L.  &  P.  Ry.  Co., 

29  Fed.  101  :  but  see  Central  Tr.  Co. 
v.  Ohio  Cent.  R.  Co.,  23  Fed.  308; 
the  purchase  of  supplies  for  the 
purpose  of  the  receivership  from  a 
^firin  or  corporation  in  which  he  is 
largely  interested.  Atkins  v.  Wa- 
bash. St.  L.  &  P.  Ry.  Co.,  29  Fed. 
101.  In  the  FCastern  District  of 
C  corgi  a.  the  court  refused  to  re- 
move a  receiver,  who  had  continued 
in  good  faith  reports  of  the  condi- 
tion of  the  property  similar  to  those 
issued  by  the  corporation  before  his 
appointment,  who  had  aided  in  a 
scheme  for  organizing  the  prop- 
erty, who  had  in  good  faith  al- 
lowed a  special  rate  to  a  shipper, 
and  whose  agents  had  been  guilty  of 
fraud.  Clarke  v.  Central  R.  R.  & 
E.  Co.,  66  Fed.  16.  But  in  the  Sec- 
ond Circuit  a  receiver  very  properly 
is  not  allowed  to  become  a  member 
•of  a  reorganization  committee.  Cita- 
ble v.  Nicaragua,  C.  C.  A.,  59  Fed. 
846. 

2  O'Mahoney  v.  Belmont,  62  N. 
Y.  133;  s.  c,  37  N.  Y.  Super.  Ct. 
223. 

3  Atkins  v.  Wabash,  St.  L.  &  P. 
Ry.  Co.,  29   Fed.   101. 

*  Meier  v.  Kansas  Pac.  R.  Co.,  5 
Dillon,    476;     where    two    receivers 


were  unable  to  act  in  harmony. 
mit  see  Conner  v.  Belden,  8  Daly. 
(X.  Y.  C.  P.).  257:  Land  Title  & 
trust  Co.  v.  Asphalt  Co..  !20  Fed 
996. 

5J?e  Angel.   131   Mich.   345,  91    X. 
W.  611. 

6  Land  Title  &  Tr.  Co.  v.  Asphalt 
Co.,  120  Fed.  996. 

7  Richardson  v.  Ward.  0  Madd. 
266;  Re  Lytle,  3  Paige  Ch.  I  X.  Y.) 
251;  Smith  v.  Yaughan.  Ridg.  temp. 
Hardw.  251;  Beach  on  Receivers, 
§  782.  Thus  the  court  refused  to 
remove,  at  his  own  request,  a  re- 
ceiver upon  the  sole  ground  that 
the  duties  of  his  office  interfere  with 
his  private  business.  Beers  v.  Chel- 
sea Bank.  4  Kdw.  Ch.  (X.  Y.)  277. 
But  see  Purdy  v.  Rapalye  fX.  Y. 
Ch.  1835);  Kdwards  on  Receivers. 
061.  A  receiver  may  be  removed 
at  his  own  request  when  by  reason 
of  blindness  he  has  become  physi- 
cally incapable  of  performing  the 
duties  of  his  receivership.  Rich- 
ardson  v.  Ward.  6   Madd.  200. 

8  Young  v.  Montgomery  &  E.  R 
Co..  2  Woods,  001).  018;  Alabama 
A  C.  R.  Co.  v.  Jones.  7  X.  B.  R. 
145.  169;  Beach  on  Receivers.  §§  777. 
778. 


1038 


RECEIVERS. 


D§  m 


plication  made  in  the  suit  in  which  his  appointment  was  made.9 
A  Federal  court  may,  however,  after  the  removal  of  a  suit,  re- 
move a  receiver  therein  appointed  hy  a  State  court.10  And  it 
was  held  that  when  a  Circuit  Court  of  the  United  States  had 
appointed  a  receiver  of  a  line  of  railroad  running  through  an- 
other circuit,  as  well  as  through  that  wherein  the  appointment  is 
made,  his  authority  in  the  other  circuit  was  recognized  merely 
by  judicial  comity,  and  he  might  he  removed  from  all  control 
over  property  therein  by  the  Federal  court  there  held,  upon  a 
bill  there  filed.11  A  delay  of  ten  months  after  knowledge 
of  the  facts  upon  which  the  motion  is  founded,  in  moving 
for  the  discharge  of  a  receivership  and  the  removal  of  a  re- 
ceiver, has  been  held  a  sufficient  reason  for  denying  the  appli- 
cation.12 Upon  an  application  for  the  removal  of  a  receiver  of 
a  mine,  the  court  ordered  that  the  agent  of  the  applicant  he 
permitted  to  inspect  the  mine.13  When  a  receiver  is  removed, 
the  court  may  appoint  another  in  his  place.  The  successor 
to  a  receiver  can  usually  enforce,  at  least  in  equity,  contracts* 
made  with  his  predecessor  in  his  official  capacity  and  is  usually 
responsible  in  his  official  capacity14  for  liabilities  incurred  by 
his  predecessor  in  the  same  manner  as  if  he  were  a  corporation 
sole.15  It  has  been  said  that  a  receiver  cannot  appeal  from 
an  order  discharging  or  removing  him.16 


9  Davis  v.  Michelbacher  (S.  C. 
Wis.).  31  X.  VV.  R.  108;  Beach  on 
Receivers,  §§   777.  778. 

10  Texas  &  St.  L.  Ry.  Co.  v.  Rust, 
17  Fed.  275.     See  infra,  §  555. 

11  Atkins  v.  Wabash.  St.  L.  &  P. 
Ry.  Co.,  29  Fed.  161  ;  Farmers'  L. 
&  Tr.  Co.  v.  No.  Pac.  R.  Co..  60 
Fed.  871.  Rut  see  Central  Trust 
Co.  v.  Wabash,  St.  L.  &  P.  Ry.  Co.. 
29  Fed.  618:  Mutter  v.  Dows.  94  ('. 
S.  444;  Young  v.  Montgomery  & 
F.  R.  Co.,  2  Woods.  606.  618:  Ala- 
bama &  C.  R.  Co.  v.  Jones.  7  Xat. 
B.   Reg.  14.").  169:  supra,  §  304. 

12  Brown  v.  Lake  Superior  Iron 
(  ■„.,   134  U.  S.  530.  33  L.  ed.  1021. 

13  Ilcns/cy  v.  Lanfjdon-Henszey 
Coal  Min.  Co..  80  Fed.   178. 


14  Thompson  v.  Phenix  Ins.  Co.r 
136  U.  S.  287,  34  L.  ed.  408. 

iSMcXulta  v.  Lochridge,  141  U. 
S.  327,  35  L.  ed.   796. 

16  Bosworth  v.  St.  Louis  Terminal 
R.  R.  Ass'n.,  174  U.  S.  182,  189.  19 
Sup.  Ct.  625,  43  L.  ed.  941,  modify- 
ing and  affirming  S.  C,  26  C.  C.  A. 
279-  80  Fed.  969.  53  U.  S.  App. 
302:  Re  Premier  Cycle  Mfg.  Co.,  70 
Conn.  473,  39  Atl.  800:  Young  v. 
Irish,  104  Minn.  367.  116  N.  W. 
656;  State  v.  Superior  Court,  36 
Wash.  81,  78  Pac.  202:  High  on  Re- 
ceivers, (4th  ed.)  §  825.  But  see 
Conner  v.  Belden,  8  Daly  (X.  Y. 
C  J.)  257;  Wilson  v.  Barney,  5 
ITun  (X.  Y. ),  257;  Connolly  v. 
Kretz,   78   X.   Y.   620. 


§   324] 


DISCHARGE    OF    A    RECEIVER. 


1039 


§  324.  Discharge  of  a  receiver.  The  discharge  of  a  re: 
ceiver  is  a  termination  of  the  receivership,  and  no  successor  to 
him  is  then  appointed.1  It  will  be  ordered  when  the  court  is 
satisfied  either  that  no  occasion  for  a  receivership  existed  when 
the  appointment  was  made,2  or  that  in  the  course  of  subsequent 
events  the  necessity  for  the  receivership  has  ceased.3  Ordinar- 
ily, a  receiver  can  be  discharged  only  by  the  court  that  ap- 
pointed him.4  After  the  removal  of  a  case  from  a  State  to  a 
Federal  court,  the  Federal  court  may  discharge  a  receiver 
therein  appointed.5  Any  person  injured  by  the  appointment  of 
a  receiver  can  move  for  his  discharge  although  not  a  party  to 
the  suit  in  which  he  was  appointed.6  The  motion  should  be 
made  on  notice  to  all  parties  interested.7  A  motion  for  the 
discharge  of  a  receiver  may  be  denied  on  account  of  the 
laches  of  the  moving  party.8  Ordinarily  a  receiver  of  the 
estate  of  an  infant  should  not  be  discnarkecl  until  a  vear 
after  the  infant's  majority,  unless  the  ward  after  major- 
ity consents  to  his  discharge.9  A  receiver  will  not  be  dis- 
charged, as  of  course,  at  the  motion  of  the  party  who  procured 


§  324.  1  Beach  on  Receivers,  § 
701.  See  High  on  Receivers,  §§  832- 
848a.  Where  a  decree  provided  that 
when  the  receiver  made  a  report, 
if  no  exceptions  were  filed  thereto, 
he  should  be  discharged,  but  no  re- 
port was  filed ;  it  was  held  that  the 
court  was  not  ousted  of  jurisdiction. 
Bray  v.  Staples,  C.  C.  A.,  180  Fed. 
321. 

2  Lavender  v.  Lavender,  Irish  R. 
<)  Eq.  593;  Furlong  v.  Edwards.  3 
Md.  99;  Sage  v.  Memphis  &  L.  R. 
Co.,  18  Fed.  571;  s.  c,  125  U.  S. 
361,   31   L.  ed.  094. 

3  Davis  v.  Duke  of  Marlborough, 
2  Swanst.  108,  168;  Bainbrigge  v. 
Blair,  3  Beav.  421;  Tolman  v. 
TJbero  Plantation  Co.,  142  Fed.  270. 

4  Young  v.  Montgomery  &  E.  R. 
Co.,  2  Woods,  006;  Beach  on  Re- 
ceivers, §  791. 

5  Texas  &  St.  L.  Ry.  Co.  v.  Rust. 
17   Fed.   275;    Mahoney  Mining  Co. 


v.  Bennett,  4  Shaw,  287.  As  to  the 
disposition  of  the  money  in  the 
hands  of  a  receiver  thus  dis- 
charged, see  Mack  v.  Jones,  31  Fed. 
189,  196. 

6  Thomas  v.  Brigstocke,  4  Russ. 
64;  Grenfell  v.  Dean  of  Windsor,  2 
Beav.  544;  Milwaukee  &  M.  R.  Co. 
v.  Soutter,  2  Wall.  510,  17  L.  ed. 
900. 

7  Davis  v.  Duke  of  Marlborough, 
2  Swanst.  108.  108;  Bainbrigge  v. 
Blair,  3  Beav.  421.  423. 

8  Allen  v.  Dallas  &  W.  R.  Co..  3 
Woods.  310,  331;  National  M.  B. 
Ass'n  v.  Mariposa  Co..  60  Barb.  (X. 
Y.)  423:  Hazard  v.  Credit  Mobil irr 
of  America,  38  Fed.  195;  Brown  v. 
Lake  Superior  Iron  Co.,  134  V.  S. 
53(1.  33  L.  ed.  1021. 

9  Matter  of  Van  Home,  7  Paige 
Ch.  (X.  Y.)  340;  Wildridge  v.  Mc- 
Kane,  2  Molloy.  545.  See  also  Bain- 
brigge v.  Blair,  3  Beav.  421. 


1040 


RECEIVERS. 


[§    324- 


his  appointment,  if  other  parties  who  have  acquired  an  interest 
in  the  receivership  object.10     The  entry  of  a  final  decree  which, 
does  not  provide  for  the  continuance  of  a  receivership  super- 
sedes the  appointment  of  a  receiver.11     Where  a  receivership* 
had  been  extended  so  as  to  cover  the  property  of  a  corporation 
not  a  party  to  the  bill,  an  order  directing  the  receiver  to  return 
its  property  to  such  corporation  was  held  to  be  equivalent  to  a 
revocation  of  the  receivership  as  to  that  company.12    A  receiver- 
may  be   discharged   from   the   control   of  real  estate,   and   the- 
rents  and  profits  which  he  has  collected  be  continued  in  his  con- 
trol until  the  termination  of  the  litigation.13     It  has  been  held 
that  the  discharge  of  a  receiver  by  a  decree  cannot  be  set  aside- 
upon  a  motion  entered  after  the  term  at  which  it  was  made,14 
unless  the  decree  reserved  the  jurisdiction  of  the  court  for  the 
enforcement  of  claims,  when  the  court  may  appoint  a  special 
receiver,  against  whom  pending  actions  may  be  revived,  with, 
authority  to  retake  possession  of  sufficient  property  to  satisfy 
any  judgments  that  may  be  recovered.15     The  discharge  of  a 
receiver  terminates  his   liability   for   acts   done   in  his  official 
capacity,16  at  least  to  those  who  had  due  notice  of  the  proceed- 
ings ;  and  until  the  same  is  set  aside,  he  cannot  be  sued  as  re- 
ceiver.17    After  a  receiver's   discharge  damages  to  the  estate' 
resulting  from  his  mismanagement  cannot  be  recovered  from  the 
sureties  upon  an  injunction  bond  concurrent  with  his  appoint- 
ment,18 but  his  discharge  does  not  relieve  the  sureties  upon  a 
forthcoming  bond,  executed  to  him  and  his  successors,  although 
no  other  receiver  is  appointed  and  the  other  property  is  returned 


10  Bainbrigge  v.  Blair,  3  Beav.  421  ; 
People  v.  Globe  M.  IJ.  Ins.  Co..  :>7 
How.  Pr.  (N.  Y.)  481;  Fay  v.  Erie 
&  K.  P..  Pi.  Bank,  Harring.  (Midi/) 
194.  See,  however,  Davis  v.  Duke 
of  Marlborough,  2  Swanst,  108,  168; 
Whiteside  v.  Prendergast,  2  Barb. 
Ch.    (N.  Y.)    471. 

HDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1765. 

12  Hook  v.  Bosworth,  04  Fed.  443. 

18  Jones  v.  Smith,  40  Fed.  314. 

14  Davis  v.  Duncan,  19  Fed.  477. 
Contra.  Taylor  v.  Easton,  C.  C.  A., 
180  Fed.   363,  where,   upon  the  dis- 


covery of  assets,  a  new  receiver  was- 
appointed  at  a  term  long  subse- 
quent. ) 

15  Southern  Ry.  Co.  v.  Townsend, 
C.  C.  A.,   161    Fed.  310. 

16  Davis  v.  Duncan,  19  Fed.  447; 
White  v.  Keokuk  &  D.  M.  Ry.  Co.r 
52  Iowa.  97:  Western  X.  Y.  &  P. 
R.  Co.  v.  Penh  Refining  Co.,  C.  C. 
A.,  137  Fed.  343. 

iTArchambeau  v.  Piatt.  1  73  Mass.. 
249;  Lilienthal  v.  Betz,  185  N.  Y. 
153,  159.  7  Ann.  Cas.  41. 

18  Lehman  v.  M'Quown,  31  FecL 
138. 


§   324] 


DISCHARGE  OF  BECEIVEK. 


1041 


to  his  corporation,  which  can  then  sue  upon  the  bond.19  Where 
a  decree  discharged  a  receiver  upon  condition  that  he  should 
file  a  release  from  the  person  to  whom  the  property  was  given 
by  the  decree,  it  was  held  that  his  omission  to  file  the  release  did 
hot  make  him  liable  to  strangers  for  former  injuries  by  his  em- 
ployees.20 Upon  the  discharge  of  a  receiver  and  the  return  of 
the  property  to  the  original  owner,  who  did  not  oppose  the  re- 
ceiver's appointment,  the  owner  is  liable  for  all  contracts  bv  the 
receiver  entered  into  by  the  authority  of  the  court,  and  also 
for  the  damages  caused  by  the  negligence  or  other  torts  of  the 
receiver's  agents  which  are  incidental  to  the  ordinary  manage 
ment  of  the  property.21  An  order  discharging  a  receiver  and 
directing  him  to  deliver  the  property  to  a  person  from  whom  he 
had  taken  it  was  held  not  to  be  an  adjudication  that  the  latter 
was  entitled  to  the  same.22  Where  the  court  acted  within  its 
jurisdiction,  it  has  been  held  that  where  a  receiver  is  discharged 
because  his  appointment  was  not  justified,  the  expenses  of  his 
administration,  including  his  compensation,  should  be  charged 
against  the  funds  in  his  hands ;  that  the  party  who  moved  for 
his  appointment  should  not  be  obliged  to  pay  them 2:  where 
the  proceedings  were  not  instituted  improvidently  without  rea- 
sonable cause24  and  the  prosecution  thereof  has  not  been  un- 
reasonably delaved;25   and   that   he  is   not   liable   for   interest 


19  Am.  Surety  Co.  v.  Campbell  & 
Zell  Co.,  C.  C.  A.,  t38  Fed.  531. 
20]);ivis   v.   Duncan,    18   Fed.   477. 

21  Texas  &  Pae.  Ry.  Co.  v.  Huron, 
104  U.  S.  036,  G40,  41  L.  ed.  580, 
582;  Texas  &  Pae.  Ry,  Co.  v.  John- 
son, 151  U.  S.  81,  89,  38  L.  ed.  81, 
84.     Cf.  supra,  §  313. 

22  Marshall  v.  Otto,  5!)  Fed.  249, 
255. 

23  Elk  Fork  0.  &  G.  Co.  v.  Jen- 
nings, 90  Fed.  707:  New  Birming- 
ham I.  &  L.  Co.  v.  Blevins  (Tex. 
Civ.  AppJ),  34  S.  W.  R.  828;  Clark 
v.  Brown.  C.  C.  A.,  11!)  Fed.  130; 
Ephraim  v.  Pae.  Bank,  129  Cal.  589, 
592. 

3ft Industrial  &  Mift.  G.  Co.  v.  Fl. 
Supply    Co..   58    Fed.   732,   734;    Og- 
dni    City    v.   Bear   L.   &   W.   &   Imp. 
Fed.  Prac.  Vol.  I.— 66. 


Co.,  55  Fed.  385;  Farmers'  Nat. 
Bank  v.  Backus,  77  X.  W.  R.  142; 
Northern  Ala.  Ry.  Co.  v.  Hopkins, 
31  C.  C.  A.  94;  s.  c.  87  Fed.  505i 
Gallagher  v.  Gingrich.  1(15  Iowa. 
237;  Cutter  v.  Pollock,  4  X.  1).  205; 
Cutter  v.  Pollock.  7  X.  D.  631,  634; 
Richmond  v.  Irons.  121  U.  S.  27: 
Matter  of  Lacov,  C.  C.  A..  142  Fed. 
900;  Beach  v.  Macon  Grocery  Co., 
C.  C.  A.,  125  Fed.  513;  60  0.  C.  A. 
557.  559;  Burroughs  v.  Toxaway 
Co.,  182  FflL  129:  S.  C.  ('.  C.  A., 
is;,  Fed.  135.;  Chicago  Title  &  Tr. 
Co.  v.  New  man.  ('.  ('.  A..  187  Bed. 
573;  Re  Metals  Extraction  &  Refin- 
ing Co..  C.  C.   A..    19:;    Fed.  372. 

25  Unreasonable  delay  in  the 
prosecution  of  the  action  may  be 
ground  for  charging  the  expense  of 


1042 


RECEIVERS. 


[§  325 


upon  the  funds  in  the  receiver's  hands.26  If  the  appointment 
were  void  for  want  of  jurisdiction,  or  induced  by  fraud,  the 
rule  might  be  otherwise.27  Where  the  proceeds  of  the  estate 
are  insufficient  to  pay  the  expenses  of  the  receivership,  they 
cannot  be  charged  against  the  party  at  whose  application  the 
appointment  was  made,  unless  he  was  guilty  of  some  miscon- 
duct,28 or  he  has  received  some  special  benefit  from  the 
receivership.29  Where  a  receivership  in  a  creditors'  suit  has 
been  beneficial  to  the  mortgaged  property,  the  receiver's  com- 
pensation may  be  paid  therefrom  before  the  mortgage  debt.80 
Otherwise  this  should  not  be  done.31  The  failure  of  a  trustee 
to  exercise  a  power  of  sale  vested  in  him,  and  the  institution 
of  a  foreclosure  suit  instead,  is  no  reason  for  charging  him  with 
the  expense  of  the  receivership.32  The  fact  that  land  was  sold 
at  foreclosure  for  enough  to  pay  the  amount  of  the  mortgage  and 
costs  does  not  prevent  the  payment  to  the  receivers  of  compen- 
sation out  of  other  property  covered  by  the  mortgage.33 

§  325.  Appeals  from  orders  appointing  receivers. 
"Where  upon  a  hearing  in  equity  in  a  district  court,  or  by  a 
judge  thereof  in  vacation,  an  injunction  shall  be  granted,  con- 
tinued, refused,  or  dissolved  by  an  interlocutory  order  or  de- 
cree, or  an  application  to  dissolve  an  injunction  shall  be  re- 
fused, or  an  interlocutory  order  or  decree  shall  be  made  ap- 
pointing a  receiver,  an  appeal  may  be  taken  from  such  inter- 
locutory order  or  decree  granting,  continuing,  refusing,  dis- 
solving, or  refusing  to  dissolve,  an  injunction,  or  appointing 
a  receiver,  to  the  circuit  court  of  appeals,  notwithstanding  an 
appeal  in  such  case  might,  upon  final  decree  under  the  statutes 
regulating  the  same,  be  taken  directly  to  the  Supreme  Court: 
Provided,  That  the  appeal  must  be  taken  within  thirty  days 


the  receivership  to  the  complainant, 
when  the  appointment  of  the  receiv- 
er is  set  aside.  Harrington  v.  Union 
Oil   Co.,   144   Fed.  235. 

26  Clark  v.  Brown.  C.  C.  A..  119 
Fed.  130. 

27Ephraim  v.  Pac.  Bank,  129  Cal. 
589,  592.  But  see  Palmer  v.  Texas, 
212  U.  S.  118. 

28Atlantic  Tr.  Co.  v.  Chapman. 
208  U.  S.  300,  52  L.  ed.  528. 


29  Farmers'  Nat.  Bank  v.  Backus, 
74  Minn.  264. 

30  Provident  Life  &  Tr.  Co.  v. 
Camden  &  T.  By.  Co.,  C.  C.  A.,  177 
Fed.  854.     See  supra.   §   305. 

31  Spencer  v.  Taylor  Creek  Ditch 
Co.,  C.  C.  A.,  194  Fed.  635. 

32  Atlantic  Tr.  Co.  v.  Chapman, 
208  U.  S.  300,  52  L.  ed.  528. 

33  Strain  v.  Palmer,  C.  C.  A.,  159 
Fed.  628. 


§  325]  APPEALS  FROM  ORDERS  APPOINTING  RECEIVERS.     1043 

from  the  entry  of  such  order  or  decree,  and  it  shall  take  preced- 
ence in  the  appellate  court;  and  the  proceedings  in  other  re- 
spects in  the  court  below  shall  not  be  stayed  unless  otherwise 
ordered  by  that  court,  or  the  appellate  court,  or  a  judge  thereof, 
during  the  pendency  of  such  appeal:  Provided,  however,  That 
the  court  below  may,  in  its  discretion,  require  as  a  condition  of 
the  appeal  an  additional  bond."1  Although  the  statute  author- 
izes an  appeal  from  an  order,  continuing,  refusing  or  dissolving, 
or  refusing  an  application  to  dissolve,  an  injunction,  there  is 
no  such  provision  concerning  orders  appointing  receiverships. 
The  right  to  appeal  from  an  order  denying  an  application  to 
appoint  a  receiver  or  to  dissolve  a  receivership,  or  from  an 
order  continuing  or  dissolving  a  receivership,  is  not  expressly 
granted.  It  has  been  held:  that  an  ex  parte  order  appointing 
a  receiver  is  appealable;  2  and  that  an  order  nominally  appoint- 
ing a  "conditional  receiver."  which  gave  the  appointee  no  great- 
er powers  than  those  of  a  special  master,  namely,  to  keep  and 
require  accounts,  to  require  bonds  in  such  amount  as  he  might 
determine  and  to  report  to  the  court  in  case  of  misconduct  by 
the  defendants,  is  not  appealable.3  The  court  said  :  "Interlocu- 
tory orders,  which  may  be  reviewed  on  appeal  under  and 
within  the  purview  of  the  statute  just  quoted,  are  orders  in  the 
nature  of  'executions  before  judgment,'  and  in  effect  either 
ousting  parties  from  the  possession  of  property  of  injuriously 
controlling  the  management  and  disposition  of  property."'4     A 


§  325.  l  Jud.  Code.  §  129,  36  St. 
at  L.  1087.  Where  before  the  Act 
authorizing  appeals  from  orders  ap- 
pointing receivers,  an  order  appoint- 
ed a  receiver  and  contained  no  oth- 
er injunction  than  the  usual  man- 
date that  the  defendant,  its  officers, 
agents  and  employees,  deliver  to 
him  the  property  in  their  hands: 
it  was  held  that  it  was  not  appeal- 
able. Bissell  C.  S.  Co.  v.  Goshen  S. 
Co..  C.  C.  A.,  72  Fed.  545;  Marden 
v.  Campbell  Printing-Press  &  .Mfg. 
Co.,  C.  C.  A..  67  Fed.  80fl.  An  or- 
der vacating  the  appointment  of  a 
receiver  and  staying  all  proceedings 
in   the   suit,   was   held   to  be   an    in- 


junction order  and  appealable.  Bak- 
er v.  Walter  Baker  &  Co.,  C.  C.  A.. 
83   Fed.   3. 

2  Joseph  Dry  Goods  Co.  v.  Hecht, 
C.  C  A..  120  Fed.  760.  See  Mann 
v.  Gaddie,  C.  C.  A.,  158  Fed.  42.  47. 
Contra,  Boot  v.  Mills.  C.  C.  A..  168 
Fed.  688.  It  has  been  said:  "This 
statute  will  afford  defendants  relief, 
where  receivers  are  improperly  ap- 
pointed, whether  with  or  without 
notice."  Mann  v.  Gaddie.  C.  C.  A., 
158    Fed.  42.   47. 

8  Gulf  Refining  Co.  v.  Vincent 
Oil  Co..  C.  C.  A.,   is:,  Fed.  87. 

4<;nlf  Refining  Co.  v.  Vincent  <>il 


10-14  RECEIVERS.  [§   325 

stipulation  not  to  object  to  the  continuance  of  a  receivership 
is  a  waiver  of  the  right  to  appeal  from  the  appointment.5  The 
other  decisions  which  apply  to  these  appeals  are  discussed  in 
the  previous  section  upon  appeals  from  injunction  orders.6  Up- 
on an  appeal  from  an  order  appointing  an  ancillary  receiver, 
the  propriety  of  the  decree  in  the  principal  suit  cannot  be 
questioned.7 

Co.,   C.  C.  A.,   185   Fed.  87,  89,  per  TMcGraw  v.  Mott,  C.  C.  A.,   170 

Pardee,  J.  Fed.  646,  where  it  was  said  that  the 

5  Haight   &    Freese    Co.    v.    Weiss,,  jurisdiction     of     the     former     court 
C.   C.   A.,   156   Fed.   328.  could  not  be  questioned. 

6  Supra,  §  300. 


CHAPTER  XX. 


THE  WRIT  OF  Xi:  EXEAT  REPUBLICA. 

§  326.  Definition  of  the  writ  of  ne  exeat  republica,  and 
when  it  will  issue.  The  writ  of  ne  exeat  republica  is  a  writ 
which  issues  from  a  Federal  court  of  equity  or  bankruptcy  to 
restrain  a  defendant  to  a  suit  therein  from  departing  from  the 

United  States  without  the  leave  of  the  court.1  In  England  it 
was  caRed  ne  exeat  rv<ino.  and  was  considered  a  writ  of  high 
prerogative.  It  was  originally  applicable  to  purposes  of  state 
only,  but  afterwards  extended  to  private  transactions.2  In  the 
United  States  the  writ  has  hitherto  been  issued  only  at  the  re- 
quest of  a  private  party.  The  Judicial  Code  provides  that 
'"writs  of  ne  exeat  may  be  granted  by  any  justice  of  the  Supreme 
Court,  in  cases  where  they  might  be  granted  by  the  Supreme 
Court;  and  by  any  district  judge,  in  cases  where  they  might  be 
granted  by  the  district  court  of  which  he  is  a  judge.  But  no 
writ  of  ne  exeat  shall  be  granted  unless  a  suit  in  equity  is 
commenced,  and  satisfactory  proof  is  made  to  the  court  or  judge 
granting  the  same  that  the  defendant  designs  quickly  to  deparl 
from  the  United  States."3  It  is  unsettled  whether  the  writ 
can  now  issue  from  a  Federal  court  held  in  a  State  which  has 
abolished  imprisonment  for  debt.4  It  has  been  held  that  the 
intention  of  the  defendant  to  depart  from  the  judicial  district. 
is  not  enough  to  authorize  the  issue  of  the  writ.5  except  in 
case  of  bankruptcy.6     The  claim    of  the   party   applying  for 

§  326.     1 Re  Berkowitz,   173   Feci-  B  Loewenstein  v.  Biernbaum,  8  W. 

1012.  X-  C    (Pa.),  163. 

2  Jackson  v.   Petrie,   10  Ves.   164;  6  /,>,.    Berkowitz,     173     Fed.    1012, 

Beanies  on  Ne  Exeat,  1-21.  where  upon  the  petition  of  creditors, 

BJud.   Code,   §   261,   36   St.   at   L.  accompanied  by  a  certificate  of  the 

1087,  re-enact  in-;.    T\  S.  E.  S.',  S  717.  referee,  the  writ  was  issued  againsl 

4  Cf.  U.  S.  R.  S.,  §  990;  Mallory  a  bankrupt,  who  was  about  to  leave 

Mfg.  Co.  v.  Fox,  20  Fed.  409:    and  tfhe  districl  and  did  not  appear  Upon 

infra,  §  471.    See  also  24  Am.  Law  the   adjourned   day  of  his  examina- 

Rev.  535.  tion. 

1045 


1046 


WRIT    OF    NE    EXEAT. 


[§  327 


the  writ  must  be  one  enforceable  by  a  suit  in  a  court  of  equity 7 
or  bankruptcy,8  except  where  a  decree  for  permanent  alimony 
has  been  entered  and  no  appeal  therefrom  is  pending,  in  which 
case  the  English  rule  was  that  the  writ  might  issue  to  compel 
obedience  to  the  same.9     The  claim  must  be  for  the  payment 


for   an   accounting 


11 


of  a  certain  fixed  sum  of  money  or 
A  claim  for  unliquidated  damages  is  insufficient.12  Thus,  the 
writ  cannot  issue  under  a  bill  to  set  aside  a  bill  of  sale  of  a 
vessel,  for  a  return  of  the  vessel  or  her  value,  and  for  an  ac- 
count of  her  earnings.13  The  debt  must  be  already  due.14  A 
debt  which  is  contingent,15  or  certain  but  future,16  is  insufficient. 
The  motives  for  the  defendant's  departure,  no  matter  how  in- 
nocent they  may  be, — as,  for  example,  that  he  is  about  to  sail 
upon  a  ship  of  which  he  is  captain,17  will  not  prevent  the  issue 
of  the  writ.18 

§  327.  Against  whom  the  writ  will  issue.  The  writ  was 
originally  confined  to  subjects  of  the  King  of  England.1  It 
has  been  extended,  however,  so  as  to  apply  to  foreigners  as 
well  as  subjects  of  the  country  from  the  courts  of  which  the 
writ  issued;2  and  where  the  court  has  jurisdiction,  the  writ 
may  be  issues  at  the  suit  of  one  foreigner  against  another.3 
It  seems  that  the  writ  may  be  issued  against  a  married  woman 
in  a  suit  affecting  her  separate  estate.4    The  writ  will  not  issue 


7  Pearne  v.  Lisle,  Amb.  To;  Sey- 
mour v.  Hazard,  1  J.  Ch.  (X.  Y.)   1. 

8  Re  Berkowitz,   173   Fed.   1012. 

9  Pearne  v.  Lisle,  Amb.  75 ;  Read 
v.  Read,  1  Ch.  Cas.  J 15;  Ex  parte 
Whitmore,  1  Dick.  143;  Shaftoe  v. 
Sha'ftoe,  7  Ves.  171;  Street  v. 
Street,  1  T.  &  R.  322;  Daniell's  Ch. 
l'iv  (2d  Am.  ed.)    102(5,  1927. 

10  Graham  v.  Stueken,  4  Blatchf. 
r,0;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1931. 

v.    Reid,    Murdoek    & 
177  Fed.  684. 


ii  Godding 

«  o.,  C.  C.  A., 


12  Graham  v.  Stueken,  4  Blatchf. 
50. 

13  Ibid. 

14  YY'hitehouse  v.  Partridge,  3 
Swanst.  305,  377 ;  Seymour  v.  Haz- 
ard,  1    J.  Ch.    (N.  Y.)    1. 


15  Anon.,  1  Atk.  521. 

16  Whitchouse  v.  Partridge,  3 
Swanst.  365,  377 ;  Seymour  v.  Haz- 
ard, 1   J.  Ch.    (N.  Y.)    1. 

17  Dick  v.  Swinton,  1  V.  &  B.  371. 

18  Stewart  v.  Graham,  19  Ves. 
313;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1934,    1935. 

§  327.  1  Daniell's  Ch.  Pr.  (2d 
Am.  ed.)  1933;  Beames  on  Ne  Ex- 
eat,  1-20. 

2  Flack  v.  Holm,  1  J.  &  W.  405: 
Daniell's  (  h.  Pr.  (2d  Am.  ed.)  1933, 
1934. 

3  De  Carriere  v.  De  Calonne,  4 
Ves.  577;  Mitchell  v.  Bunch,  2 
Paige  (N.  Y.)   606,  22  Am.  Dec.  669. 

4  Moore  v.  Hudson,  Mad.  &  Geld. 
218;  Moore  v.  Meynell.  1  Dick.  30; 
Daniell's  Ch.  Pr.    (2d  Am.  ed.)    191. 


§    327]  AGAINST    WHOM     WIMT    ISSUED.  104:7 

against  a  defendant  who  is  under  arrest  or  held  to  bail  in  an 
action  at  law.5  The  Constitution  provides  that  Senators  and 
Representatives  shall,  in  all  cases,  except  treason,  felony,  and 
breach  of  the  peace,  he  privileged  from  arrest  during  their  at- 
tendance at  the  session  .»f  their  respective  Houses,  and  in  go- 
ing to  and  returning  from  the  same.6  And  the  Revised  Sta1 
utes,  that  whenever  any  writ  or  process  is  sued  out  or  prose 
cnted  by  any  person  in  any  court  of  the  United  States,  or" of  a 
State,  or  by  any  judge  or  justice,  whereby  the  person  of  any 
public  minister  of  any  foreign  prince  or  state,  authorized  arid 
received  as  snch  by  the  President,  or  any  domestic  of  domestic 
servant  of  any  snch  minister,  is  arrested  or  imprisoned,  or 
his  goods  or  chattels  are  distrained,  seized,  or  attached,  snch 
writ  or  process  shall  be  deemed  void.7  Whenever  any  writ  or 
process  is  sued  out  in  violation  of  this  statute,  every  person 
by  whom  the  same  is  obtained  or  prosecuted,  whether  as  party 
or  as  attorney  or  solicitor,  and  every  officer  concerned  in  exe- 
cuting it,  is  deemed  a  violator  of  the  laws  of  nations  and  a  dis- 
turber of  the  public  repose,  and  is  liable  to  imprisonment  for 
not  more  than  three  years,  and  a  tine  ;it  the  discretion  of  tin- 
court.8  These  regulations  do  not  apply  to  any  ease  where  the 
person  against  whom  the  process  is  issued  is  a  citizen  or  in- 
habitant of  the  United  States  in  the  service  of  a  public  min- 
ister, and  the  process  is  founded  upon  a  debt  contracted  before 
he  entered  npon  such  service;  nor  to  any  case  where  the  per- 
son against  whom  the  process  issued  is  a  domestic  servant  of  a 
public  minister,  unless  the  name  of  the  servant  has,  before  the 
issuing  thereof,  been  registered  in  the  Department  of  State. 
and  transmitted  by  the  Secretary  of  State  to  the  marshal  of 
the  District  of  Columbia,  who  is  required,  upon  the  receipl 
thereof,  to  post  the  same  in  some  public  place  in  his  office.9  All 
persons  may  have  access  to  the  list  of  names  so  posted  in  the 
marshal's  office,  and  may  take  copies  without  a  fee.10 

5  Raynes  v.  Wyse,  2  Meriv.  472;  I".  S.  v.  Benner,  1  Raldw.  234;  U. 
Darnell's  Ch.  Pr.  (2d  Am.  ed.)  S.  v.  Lafontaine,  4  Cranch,  C.  C. 
1930,   1031.  173. 

6  Const,   art.   I,   §   0.  M'.   S.   R.   S..   §   4064. 
H'.    S.    R.    S.,    §    4063.      See    Ex           HI  S,   R.  S..  §    1065. 

parte  Cabrera.  1   Wash.  C.  C.  232;  MU;  &.   I!.  SI,  «  4066. 


1048 


WEIT    OF    XE    EXEAT. 


[§  328 


§  328.  Practice  in  obtaining  the  writ  of  ne  exeat.  The 
application  for  a  writ  of  ne  exeat  republica  may  be  made  ex 
parte,  even  after  the  defendant  has  appeared.1  The  reason  for 
allowing  this  is.  that  notice  might  frustrate  the  object  of  the 
motion  by  giving  the  party  an  opportunity  of  removing  himself 
nut  of  the  jurisdiction.2  It  has  been  held  in  England  that  the 
writ 'cannot  be  obtained  until  a  bill  has  been  filed.3     It  is  the 


safer    practice    to    ask    for 
needed   "pending  the  suit." 


the   writ    in    the    bill,    when    it    is 


writ  may  be  granted  at  or 
contains  no   such  prayer.5 


But  it  has  been  held  that  the 
after  the  decree,  although  the  bill 
And  by  the  English  practice,  no 
prayer  in  the  bill  was  required.6  The  writ  must  be  supported 
by  an  affidavit  made  by  the  complainant  hiniself.'or  some  person 
acquainted  with  the  facts.7  The  affidavit  must  be  positive  as 
to  the  tacts,  not  merely  upon  information  and  belief,8  except  in 
the  case  of  an  account,  when  the  plaintiff  may  swear  that,  to  the 
best  of  his  belief,  the  sum  named  will  be  due  to  him  on  the 
balance  of  the  account.9  A  writ  was  discharged  when  it  ap- 
peared from  the  affidavit  that  the  affiant  could  not  have  had 
personal  knowledge  of  the  transaction  to  which  he  swore  posi- 
tively.10 The  affidavit  must  be  positive  as  to  the  intention  of 
the  defendant  to  go  abroad,  or  to  his  threats  or  declarations,  or 
those  of  members  of  his  family  or  his  agents,  showing  such  an 
intention  on  his  parti"  An  affidavit  stating  information  from  a 
stranger  will  ordinarily  be  insufficient.12  It  is  prudent  to  state 
in  the  affidavit  that  the  debt  will  be  endangered  bv  the  defend- 


?;   :52s;.      1  Collinson    v. 


li 


7  Collinson   v, 


IS  Yes.   353; 


Yes.   353;    Elliot  v.   Sinclair.   Jacob. 
545. 

2  Elliot  v.  Sinclair,  Jacob.  545. 

3  Ex  parte  Brunker,  3  P.  Wms. 
:'>12:  Mattocks  v.  Tremain.  3  J.  Ch. 
I  X.  Y. )  75.  But  see  Lloyd  v.  Cardy. 
Prec.  in  Ch.   171. 

4  See  Eq.  Rule  25.  But  see  the  lan- 
guage of  Lord  Eldon  in  Collinson  v. 
.  18  Yes.  353. 

5  Lewis  v.  Shainwald.  7  Saw.  403. 
417. 

6  Collinson   v.  .   18  Yes.  353; 

Lewis    v.    Shainwald,    7    Saw.    403, 
416,  417. 


Mattocks  v.  Tremain.   3  J.   Ch.    (X. 
Y.)    75. 

8  Rico  v.  Gualtier.  3  Atk.  501 ; 
Jackson  v.  Petrie.  10  Yes.  lb'4:  Mat- 
tocks v.  Tremain,  3  J.  Ch.  (X.  Y.) 
75. 

9  Rico  v.  Gualtier,  3  Atk.  501; 
Jackson  v.  Petrie.  10  Yes.  li>4. 

10  Roddam  v.  Hetherington.  5  Ves. 
91. 

11  Oldham  v.  Oldham.  7  Yes.  410: 

Collinson     v.    .     18    Yes.     353: 

Knight    v.    Watts.    2    C.    P.    Cooper 
t<iiip.  Cottenham,  257. 

12  Oldham  v.  Oldham.   7  Yes.  410. 


§  328]  practice.  1049 

ant's  quitting  the  country.13  Deficiencies  in  the  affidavit  may 
be  supplied  by  admissions  in  the  answer.14  The  courl  may  re- 
quire as  a  condition  for  the  issue  of  the  writ  thai  the  complain- 
ant give  an  undertaking  to  respond  in  damages  should  the 
writ  be  afterwards  discharged.15  The  writ  is  directed  to  the 
marshal,  and  is  in  substantially  the  following  form: — 

The  President  of  the  United  States  of  America  to  the 
Marshal  of  the  Southern  District  of  XewYork: 

Greeting, — whereas  it  is  represented  to  us  in  our  District 
Court  of  the  United  States  for  the  Southern  District  of  Xew- 
York in  equity,  on  the  part  of  John  Aber,  complainant,  against 
Charles  Dutton,  defendants  (among  other  things),  that  he, 
the  said  defendant,  is  greatly  indebted  to  the  said  complainant 
and  designs  quickly  to  go  into  parts  without  the  United  States 
(as  by  oath  made  on  that,  behalf  appears),  which  tends  to  the 
great  prejudice  and  damage  of  the  said  complainant.  There- 
fore, in  order  to  prevent  this  injustice,  we  do  hereby  command 
you.  that  you  do,  without  delay,  cause  the  said  Charles  Dtjt- 
ton  personally  to  appear  before  you,  and  give  sufficient  baiil 
or  security  in  the  sum  of  $1,000  that  the  said  Charles  Dutton 
will  not  go,  or  attempt  to  go.  into  parts  without  the  United 
States  without  leave  of  our  said  Court;  and  in  case  the  said 
Charles  Dutton  shall  refuse  to  give  such  Bail  or  Security, 
then  you  are  to  commit  the  said  Charles  Dutton  to  our  next 
prison,  there  to  be  kept  in  safe  custody,  until  he  shall  do  it  of 
his  own  accord;  and,  when  you  shall  have  taken  such  security, 
you  are  forthwith  to  make  and  return  a  certificate  thereof  to  us 
in  our  said  District  Court  of  the  United  States  for  the  Southern 
District  of  Xew  York  distinctly  and  plainly  under  your  hand, 
together  with  this  Writ. 

Witness,  the  Honorable  George  C.  Holt,  United  States 
District  Judge,  at  the  City  of  New  York,   in   the  County  and 

13  Mattocks   v.  Tremain.  3   J.   Cli.  M  Roddarn  v.    Ilotherington,  5  Y<>. 

(N.  Y.)    75,   76;    Baker  v.    Haily.  2  91,  95. 

Dick.    6.32;    Daniell's    Ch.    Pr.    (5th  is  Daniell's  Cli.  Pr.  (5tli  Am.  ed.) 

Am.  ed.)    1708.  and  cases  cited.    But  1708. 
see   McGehee   v.    Polk.   24   Ga.    406, 
412. 


1050 


WRIT  OF  NE  EXEAT. 


[§  328 


State  of  .New  York,  the  thirteenth  of  November,  one  thousand 
nine  hundred  and  twelve.16 

The  writ  should  be  endorsed  with  the  amount  of  the  sum 
demanded  written  out  in  words  at  length.17  When  it  is  issued 
against  a  personal  representative  by  a  person  claiming  a  share 
of  the  residuary  estate,  it  should  be  endorsed  with  the  whole 
amount  due  from  the  defendant,  not  only  to  the  plaintiff,  but  to 
all  persons  interested  in  the  estate.18  When  the  writ  is  endorsed 
for  a  larger  sum  than  is  due,  the  court  will  ordinarily  refuse  to 
quash  it,  but  will  require  the  defendant  to  give  security  only 
for  so  much  as  is  really  due.19  The  writ,  upon  its  issue,  must 
be  delivered  to  the  marshal.  It  is  his  duty  thereupon  to  execute 
it  by  arresting  the  defendant  named  in  it,  and  bringing  him 
before  the  court.20  He  has  no  power  to  break  open  doors  under 
the  writ.21  The  defendant  may  ~be  released  upon  giving  suffi- 
cient security  to  satisfy  the  marshal.22  After  executing  the  writ, 
the  marshal  should  make  a  return  of  what  he  has  done.23  The 
defendant  may  move  at  any  time  to  discharge  the  writ,  either 
for  irregularity  or  upon  the  merits,  by  disproving  the  charges 
in  the  complainant's  affidavits.24  But  it  has  been  said  by  Lord 
Eldon,  that  where  the  plaintiff  has  sworn  positively  to  the  debt 
•and  to  the  defendant's  declarations  of  his  intention  to  go  abroad, 
the  defendant's  unsupported  affidavit  will  be  insufficient  to  con- 
tradict this.25  If  the  writ  is  discharged  another  writ  may  issue 
upon  a  new7  affidavit.26  Upon  payment. into  court  of  enough  to 
satisfy  the  plaintiff's  claim,  the  writ  will  always  be  discharged.27 
The  writ  may  be  discharged  if  the  defendant  gives  sufficient 
security  to  satisfy  the  court.28     The  security  usually  required  is 


16  lieames  on  Ne  Exeat,  23,  24. 

17  Beames  on  Ne  Exeat,  93. 

18  Pannell  v.  Tayler,  T.  &  R.  96, 
100. 

19  Ibid. 

20  Daniel's  Ch.  Pr.  (2d  Am.  ed.) 
1943. 

21  Beames  on  Ne  Exeat,  95. 

22  Beames  on  Ne  Exeat,  96 , 
Boehm  v.  Wood,  T.  &  R.  332.  340; 
Daniell's  Ch.  Pr.   (2d  Am.  ed.)  1943. 

23Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1945;  Impey  on  Sheriffs  (2d  ed.), 
532. 


24  Gernon  v.  Boecaline,  2  Wash. 
130;  Grant  v.  Grant,  3  Russ.  598, 
602. 

25  Anisinek  v.  Barklay,  8  Ves. 
594,  597;  Jones  v.  Alephsin,  16  Ves. 
470,  471. 

26  Gernon  v.  Boecaline,  2  Wash. 
130. 

27  Evans  v.  Evans.  1   Ves.  Jr.  96. 

28  Roddam  v.  Hetherington,  5  Ves. 
91,  95;  Boon  v.  Collingwood,  1  Dick. 
115;    Beames   v.    Ne   Exeat,    98,   99. 


§    328]  PRACTICE.  1051 

conditioned  that  the  defendant  abide  by  the  process  and  decree 
of  the  court;29  but  security  that  the  defendant  abide  by  and 
perform  the  process  and  decree  of  the  court  may  be  required.30 
The  discharging  order  usually  enjoins  the  defendant  from  bring- 
ing an  action  of  false  imprisonment;31  and  the  prosecution  of 
such  an  action  may  be  restrained  by  a  subsequent  order.32  If 
the  court  considers  the  writ  improperly  issued,  it  may  direct  a 
reference  to  a  master  to  ascertain  the  damages  sustained  by  the 
defendant,  and  direct  the  payment  to  him  of  the  amount  found 
due  by  the  sureties  upon  the  plaintiff's  undertaking.33  An 
amendment  of  the  bill  which  does  not  materially  alter  the  case 
does  not  discharge  the  writ.34 

29  Griswold  v.   Hazard,   141    U.   S.  32  Quoted  with  approval  by  Gross- 
200.  281.  35  L.  ed.  678,  687.  cup,  J.,  in  Gooding  v.  Reid,  Murdock 

30  For    defenses    to    such    a    bond,  &  Co.,  C.  C.  A.,  177   Fed.  684,  688; 
see  Ibid.  Darley  v.  Nicholson,  2  Dr.  &  War. 

31  Quoted  with  approval  by  Gross-  86. 

cup,  J.,  in  Gooding  v.  Reid,  Murdock  33  Sichel  v.   Raphael,  4  L.  T.    (N. 

&   Co.,  C.  C.  A..  177  Fed.  684,  688;       S.)    114. 

Darley  v.  Nicholson,  2  Dr.  &  War.  **  Grant  v.  Grant,  5  Russ.  189. 


II  Ml  IMI  llll  MIMMIII 
AA    000  732  577    2 


